Do the Decision-making Mechanisms in the Eu Undermine Member States' National Interest?: a Case Study of the Sanctions Regime

• Citation: Vol. 31 No. 4
• Publication year: 2017

Do the Decision-Making Mechanisms in the EU Undermine Member States' National Interest?: A Case Study of the Sanctions Regime

Melanie C. Papadopoulos

DO THE DECISION-MAKING MECHANISMS IN THE EU UNDERMINE MEMBER STATES' NATIONAL INTEREST?: A CASE STUDY OF THE SANCTIONS REGIME

ABSTRACT

Following the shocking results of the Brexit referendum in June 2016 and the Greek referendum rejecting austerity measures in 2015, many believe that the European Union (EU) is undergoing a legitimacy crisis. The most vocal Eurosceptics claim that the EU threatens individual Member State sovereignty, with the chief concern being that the EU's decision-making mechanisms are leaving certain Member States overruled in major decisions. While it is too early to tell whether this is the first of many similarly named "exits," it is clear that what were previously rumbles of discontent have now swelled to an outcry. This Comment will therefore explore the decision-making mechanisms employed at the supranational level of the EU, with a particular focus on the EU's sanctions regime, revealing the heart of the struggle between efficiency in decision-making and preservation of national sovereignty. Legally, the founding treaties of the EU—the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) set rules for the decision-making mechanisms in an effort to balance these two aims. But how effective are these mechanisms? This Comment will ultimately conclude that the safeguards in place in the founding treaties are flawed, but there are solutions available to improve the decision-making process in the sanctions regime. Though the treaties aim to preserve individual Member State autonomy, the criticisms directed toward the system may indicate that the execution in practice does not preserve that autonomy as much as the drafters intended.

Introduction

Ahead of the famous "Brexit" referendum, Boris Johnson—now the UK Secretary of State for Foreign and Commonwealth Affairs—¹ wrote an opinion

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imploring the British people to vote to leave the European Union (EU).² In this opinion, he cited, among other reasons, "a hurried expansion in the areas for Qualified Majority Voting" which left Britain overruled more and more often.³ Following the June 23, 2016 referendum where British citizens voted to leave the EU, Vox Magazine listed the seven most important arguments in favor of Britain leaving the EU.⁴ The two arguments that topped this list were: 1) "[t]he EU threatens British sovereignty" and 2) "[t]he EU is strangling the UK in burdensome regulations."⁵ This is not the first time that a Member State politician has expressed concern about the voting methods employed in EU institutions.⁶ While it is too early to tell whether this is the first of many similarly named "exits,"⁷ it is clear that what were previously rumbles of discontent have now swelled to an outcry. Is this outcry truly indicative of a clandestine "legal colonisation," as Mr. Johnson claims?⁸

This Euroscepticism was not confined to UK borders—Nigel Farage, UK Independence Party Leader and vocal Eurosceptic,⁹ implored Greece to leave the EU and "take back control of your country."¹⁰ Farage made these statements ahead of Greece's controversial referendum in July 2015.¹¹ The referendum asked the Greek people to choose to either reject or accept the latest round of austerity measures in response to its economic crisis.¹² In the

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weeks and months leading up to the referendum, those who urged the Greek populace to vote to reject the new austerity measures—and by extension leave the Eurozone—raised similar grievances of a lack of representation.¹³ When the Greeks voted to reject the austerity measures, it exposed what a writer for the Independent called a gaping hole in the EU—"it's lack of genuine legitimacy."¹⁴ Though Greece ultimately remained in the European Union, this "no" vote sent a clear message from the Greek people to the European elite—"democracy cannot be blackmailed."¹⁵

In the eyes of Greek Prime Minister Alexis Tsipras, however, this vote was less a vote to leave the EU and more an endorsement from the Greek people to their leaders to strengthen their negotiating position in the EU institutions. In April 2016, Tsipras told Russian lawmakers that Greece "had played an active role in preventing an expansion of European Union sanctions against Russia earlier this year."¹⁶ The European Council, a supranational EU entity composed of the heads of state of each Member State,¹⁷ is the supranational entity charged with deciding whether to impose or renew sanctions on a third country. The European Council must decide by unanimous vote,¹⁸ which means Greece had a right to exercise a veto in the vote to renew the EU's sanctions on Russia for its annexation of Crimea.¹⁹ Pundits and politicians

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alike speculated about the likelihood that Greece, a small Member State, would attempt to exercise its power and trade favors with Moscow: a veto of further EU sanctions on Russia in exchange for financial assistance from Russia.²⁰ This power to veto a decision would seem to suggest that individual Member States are represented in at least one area: decisions made under the Common Foreign and Security Policy (CFSP).

CFSP decisions are among the most controversial.²¹ The decision to impose sanctions on Russia most closely aligned with British interests. Now that Britain has decided to leave the EU, experts predict that the EU sanctions policy will be substantially weakened.²² The UK has fought for EU sanctions on Russia since the Russian military annexed Crimea.²³ Many commentators believe that the United Kingdom represented the United States' foothold in the EU and is the driving force behind the EU's persistent renewal of sanctions on Russia.²⁴ Greece stands in opposition to the UK-backed sanctions on Russia, which hurt an already crippled Greek economy. This Comment will explore the competing concepts of unanimous decision-making and representativeness in the European Council. It will use the sanctions regime as the lens for this analysis. Although there is a strong argument that Member States interests are not adequately represented in the European Council, this Comment argues that the situation is not as dire as is suggested by Eurosceptics. The United Kingdom is at one side of the ideological spectrum with regard to Russian sanctions, with Greece at the other. Both countries, however, claim that their interests are underrepresented in EU policy decisions. This Comment will reveal that both Member States have more clout than they think they do, and the process, though flawed, is not fated to fail.

This Comment will explore decision-making at the supranational level of the EU, revealing the heart of the struggle between efficiency and national

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sovereignty. Legally, the founding treaties of the EU—the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)²⁵ —lay out the decision-making mechanisms for EU institutions, in an effort to balance the two aims mentioned above.²⁶

This analysis is inspired by a search for answers to the following questions: How can the EU efficiently legislate but still account for the needs of twenty-eight²⁷ different Member States? How does individual Member State resistance change when it comes time to vote?²⁸ What happens when an EU sanctioning policy runs counter to the national interests of an individual Member State? Can this type of decision-making truly reflect the will of each of the Member States of the Union? How efficient has this decision-making mechanism been at preserving the national interests of each Member State? Do the voting methods employed infringe on national sovereignty of individual Member States?

This Comment will proceed as follows. Part I of this Comment will provide a basic introduction to the EU sanctions regime. This Part will also analyze how the sanctions regime developed within both the Common Commercial Policy (CCP) and the CFSP, highlighting the legal and political inconsistencies that arose in an effort to promote efficiency and coherence. Part II of this Comment will explore the decision-making mechanisms used in the European Council and the Council of the European Union when the EU sets its CFSP.²⁹

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It will critically analyze the balance of power within the European Council, exploring whether, and to what extent, the national interests of individual Member States are impinged upon when the European Council imposes sanctions on trading partners vital to particular Member States. It will then explore how the decision-making procedures for the sanctions regime arose out of the CCP and the CFSP. It will critically analyze the two-step decision-making procedure, which employs both unanimous and qualified majority voting.

Part III of this Comment will turn to the degree of power left to Member States to implement sanctions. This Part will consider whether decision-making in the sanctions regime is becoming increasingly centralized, and it will assess how much the EU has compromised national autonomy over foreign policy in favor of efficiency. This Part of the Comment finds that, legally, the procedural safeguards enumerated in the Constitutional Treaties can protect Member State sovereignty in foreign policy decision-making. In practice, however, the ability of Member States to take independent action in the sanctions regime has been limited. The case law of the Court of Justice of the EU (ECJ) in this area has considered whether Member States can affirmatively adopt restrictive measures that run counter to European Community regulations.³⁰ However, the ECJ has not yet considered a case where a Member State has abstained from voting and is therefore not subject to the regulation. This Comment will consider the hypothetical scenario of a Member State abstention from the vote on sanctions and whether the...