Turning a No Vote into a Voluntary Abstention
The most important tool already exists. Under Article 31 of the Treaty on European Union, an abstention does not prevent a unanimous decision from being adopted. A state therefore does not have to support a foreign-policy decision for it to pass. It need only abstain rather than vote against it.
With a so-called constructive abstention, a government can even formally record its opposition. It is then not obliged to apply the decision itself, but must accept that it commits the European Union and may not obstruct its implementation. The decision can only be blocked if the states abstaining in this way represent at least one third of the member states and at least one third of the EU population.
For a government unable to support a measure for domestic political or constitutional reasons, this offers a way out. Austria, Ireland and Malta used the mechanism to allow military assistance for Ukraine to go ahead without participating in it themselves. The German initiative seeks to make this the expected response: if no fundamental national interest is at stake, a state should step aside rather than hold up everyone else.
Constructive abstention would not, however, become compulsory. That would require changes to the EU treaties, and the German proposal does not dare go that far.
Whether a no vote genuinely serves a vital national interest or is merely being used as bargaining leverage remains for the government concerned to decide. Neither Kallas nor the other member states can reject its justification and then proceed without it.
This immediately exposes the proposal’s fundamental problem: it has no binding force. Everything remains open to interpretation and still depends on the willingness of a potentially recalcitrant EU member state. The only difference is that it is now expected to explain itself.
Where the treaties already allow decisions to be taken by qualified majority, the proposal calls for those provisions to be used more extensively. This usually requires at least 15 of the 27 governments, representing 65% of the EU population.
A country can still pull the emergency brake, however, if it invokes “vital and stated reasons of national policy”. The draft requires a clear justification, but gives the other governments no means of declaring it insufficient. Here too, when push comes to shove, the proposal remains a toothless tiger.
Eleven Governments Cannot Stop One Holdout
The plan requires no majority vote at EU level because it makes no legally binding changes. Member states can voluntarily commit themselves to raising objections earlier, using constructive abstentions and refraining from blocking decisions over unrelated disputes. Or they can choose not to.
The meeting in Wicklow can give these rules of conduct political backing, but it cannot introduce a new voting system. The point is largely to create pressure: governments would commit themselves to explaining a veto in advance, making it easier to stigmatize any state that refuses to do so.
A binding shift to majority voting would in fact be possible in some areas without a full treaty reform. Article 31 contains a so-called passerelle clause allowing the European Council to open certain areas of foreign policy to majority decisions. But all 27 heads of state and government would first have to approve that change unanimously.
The very government whose veto is supposed to be curtailed could therefore veto the curtailment. The bureaucratic monster thus devours itself. Decisions with military or defense implications are excluded from this procedure anyway.
Changing the EU treaties would present even higher hurdles. Any amendment would have to be agreed by all member states and subsequently ratified in accordance with their respective national rules. The initiative sidesteps this seemingly hopeless obstacle by leaving the law untouched.
Eleven governments can publicly criticize a future veto, pick apart the justification offered for it and raise the political cost. They cannot, however, force the state concerned to abstain or prevent it from linking unrelated disputes. A new Orban could simply ignore the proposed rules and then block decisions just as the old one did.
So what is the point of all this?
The initiative is largely symbolic. It shows that the governments involved have recognized the problem but offers them no effective means of solving it. The planned code of conduct may help when a state is already prepared to compromise. But it remains powerless against the next Orban, the very kind of holdout it is designed to constrain. Much ado about nothing.
