Which EU countries insisted on unanimous voting for trade deals?

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Accepted answer

Short answer

The qualified majority was introduced for trade deals with the Nice Treaty

Exceptions were made (and still valid today) for 2 trade deal types:

  • EU-only: QMV Art. 207:2 TFEU

    • Article 133 of the EC Treaty: for the negotiation and conclusion of international agreements on services and the commercial aspects of intellectual property (with exceptions)

  • mixed provisions: unanimity and with membeer countries ratification

Preparations of the Nice European Council of 7-9 December 2000

  • European Parliament 29.11.2000

France’s Foreign Minister Hubert VEDRINE came before the House to update MEPs on preparations for next week’s Nice Summit. He felt progress had been made in one of the key areas in negotiations i.e. qualified majority voting, where there was general agreement on extending QMV to some 30 areas. However, he accepted that controversial issues such as social security, tax, immigration and trade in the services sector still posed problems for certain countries. Nevertheless he was still committed to reaching some agreement in these areas.
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In the debate EPP/ED Hans-Gert POETTERING (D) took France to task for its reluctance to give up the veto over trade services and asked how indeed, holding the Council Presidency, it could expect countries such as Germany, Austria and the UK to yield in areas they considered important. If no agreement could be reached, he suggested setting a time limit by which QMV would be the rule.

The reasons why objections existed are yet to be found.

The topic is meantioned a few more times but without the naming of countries.

Nice summit: "No treaty at all rather than a bad treaty", says Moscovici

  • European Parliament 06.12.2000

As to the discussions on qualified majority voting, which should be linked in most cases to the use of codecision, difficulties remained on some policy areas: tax, social policy, justice and home affairs, trade policy and cohesion. Hovering in the background to the debate on qualified majority voting was the issue of the reweighting of votes in Council, on which only the Heads of State or Government could take a decision.

The main decisions seem to have been made during the Nice European Council meeting between the 7th and 9th of December 2000.

The general reports of the time (Newspaper, Essays etc.) that there were 2 main areas of concern in the implementation of qualified majority:

  • cultural affairs
    • France and German States (constitutionaly responsible for culture)
  • legal affairs
    • avoiding that EU legislation could override local legislation
      • United Kingdom being one of these
  • trade affairs
    • my impression that this was not considered a great affair at the time
      • that the interests of regional areas, such as Wallonea, would continue to be protected by the the EU through the Agricultural Policy

The rude awakening came after the portions of the secretly negotiated CETA text were leaked between 2009 and 2014.

The concerns raised eventually lead to the reclassification of CETA from EU-only to ‘mixed’ provisions.

Long answer with detailed documentation

The pdf describes Changed rules for qualified majority voting in the Council of the EU offers an overview of the timeframe:

From 1 November 2014, decisions in the Council of the EU (Council of Ministers) requiring a 'qualified majority ' are adopted by means of the new 'double majority'. The change lowers the threshold required for adoption by Council, and is intended to increase the speed and efficiency of Council decision-making and to make it more transparent and legitimate.

The old weighted-vote system The voting system for Council decisions following the 2001 Nice Treaty was intended to adapt to the new weighting of votes which enlargement from 15 to 25 Member States would entail. Qualified majority voting (QMV) was redefined to introduce a combined threshold for votes to pass. The three criteria for decisions to be adopted were 74% of Member States' weighted votes, cast by a majority of Member States, and, optionally, a check that the majority represented 62% of the EU's total population. The main criticism levelled at this system was that the threshold for Member States' approval was simply too high, leading to the problem of gridlock. Ultimately it meant that generally only proposals of limited ambition could gain broad support across the Council and be adopted.

The Lisbon Treaty (effected 01.12.2009) and the new qualified majority In order to overcome these drawbacks, and increase legitimacy, in line with the 'one citizen – one vote' principle, the European Convention proposed moving to a double-majority method. The new voting method, included in the EU Constitutional Treaty, was confirmed in the Lisbon Treaty (Article 16 TEU/ Article 238 TFEU) although slightly modified. In contrast to the previous majority rules, which are said to have better protected smaller and medium-sized Member States, the new system focuses on the demographic weight of Member States. The adoption of acts by the Council now requires the approval of 55% of Member States (16) (72% if the act has not been proposed by the Commission), which must represent at least 65% of the EU's population (currently approximately 328.6 million of a total 505.5 million). To limit the possibility of larger states joining together to stop proposals, a blocking coalition must include at least four Member States representing at least 35% of the EU's overall population. In cases where not all Member States participate in voting (e.g. acts adopted only by euro area or Schengen Member States, or within enhanced cooperation), the qualified majority is calculated only on the basis of the participating Member States. Until 31 March 2017 any member of the Council can request, on a case-by-case basis, that the old voting rules be applied.

List of Qualified majority voting (QMV) Areas

  • trade deals are not listed in the above list
    • EU-only: QMV Art. 207:2 TFEU
      • Article 133 of the Nice EC Treaty: for the negotiation and conclusion of international agreements on services and the commercial aspects of intellectual property (with exceptions)

The quote from the HuffPost artical:

Even tiny countries like Luxembourg can have a big role in deciding the future of the UK.

is probably based on the result of Court of Justice (CJEU) - OPINION 2/15 of 16.05.2017.

A summary from the Maastricht University can be read here: Opinion 2/15 and EU competence for common commercial policy

Broad ‘EU-only’ trade agreements can constitute the new normal of EU external trade action, only if such agreements exclude portfolio investment and investor-state dispute settlement provisions from their scope.
...
In Opinion 2/15, the CJEU finally clarified the division of competences between the EU and its Member States in the area of common commercial policy (CCP) and came to the rather historic conclusion that the EUSFTA provisions on labour rights and environmental protection fall under the EU's exclusive competence under the CCP.

By contrast, this ruling means that the Commission still needs each Member State to ratify every FTA that involves portfolio investment and ISDS procedures. This may not only mean that FTAs have to be negotiated with the soon-to-be 27 Member States, but instead with the 38 national and regional parliaments that exist across the EU.
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One thing is confirmed: broad ‘EU-only’ trade agreements can constitute the new normal of EU external trade action, only if such agreements exclude portfolio investment and investor-state dispute settlement provisions from their scope. Such components should therefore be concluded separately as mixed agreements if the EU wishes not to ‘pollute’ a purely ‘EU-only’ agreement with ‘mixed’ provisions.

The European Commission requested this opinion because they believed they did have sole authority to conclude a Trade Treaty.

Others, not necessarily governments but parliamentary parties and individual regions, countries claimed that the European Commission had negotiated in areas for which they had no authority (investment courts etc.)

Allthough the Singapore Free Trade Agreement was the main topic, TTIP and CETA were effected for the same reasons.

TTIP, is dead (killed off by Mr T) and CETA is only partially in effect.

Strangely, the English version of the Wikipedia article does not explain the reason why, wheras the German version does:

In Germany, a constitutional complaint filed by more than 125,000 people by the Federal Constitutional Court examined whether the provisional applicability was compatible with the German Basic Law. In principle, the Federal Constitutional Court affirmed this; however, the federal government must ensure

  • that a Council decision on provisional application will cover only those areas of CETA which are undisputedly within the competence of the European Union to ensure,
  • pending a decision of the Federal Constitutional Court, that the decisions taken in the Joint CETA Committee are sufficiently democratically democratic,
  • and that the interpretation of Article 30.7 (3) (c) of CETA permits unilateral termination by Germany of its provisional application

The signing of CETA was called off, so that the needed paperwork could be completed so that a signatory could withdraw its signature. It was then signed 1 week later.

Should the decision go against CETA (which I personally believe it will), then CETA is dead.

  • one would think that the English Wikipedia would meantion this possibility

This decision (expected in autumn 2018) is still pending

  • why it is taking so long is unknown

Upvote:4

The premise of the question is wrong, trade as such is not a matter where unanimity is required. Negotiations follow the procedure laid out in article 218 TFEU, with most votes in the Council taking place according to the qualified majority voting procedure. And the common commercial policy has always been an exclusive competence of the EU. So no country had to insist on anything, it's a direct and integral consequence of EU membership since the beginning.

But recent (so called “new generation”) “trade” deals go way beyond trade and touch upon multiple areas, some of which might be shared competences, which means the treaty is subject to ratification by each and every member state, according to their own constitutional procedures. Intellectual property used to be one of these areas (and nearly all recent agreements have provisions regarding that) but not trade as such.

Whether a specific agreement falls under this procedure is a matter of discussion (and sometimes litigation) between the Commission and the Council (fun fact: there is a series of cases in front of the EUCJ where the Council and Commission agree on a decision but not on its legal basis because they want to safeguard their respective role in future decisions on the same topic). But the tweet is however very likely to be correct regarding any deal with the UK, as it would have to approximate a lot of current EU rules (e.g. on financial services and investments or freedom of movement) to be of any use in limiting economic damage to both partners. To which extent that would even be a “trade deal” is debatable. No matter what happens, what's needed is a very broad agreement that all EU members are comfortable with (in other words it would be a “mixed cooperation agreement”).

Politics also play a role. While the Commission tends to push for broader EU competences (and a bigger role for itself), if something is likely to be very sensitive for member states, it pays to ensure there is a consensus around the negotiation and each state formally approve the deal rather than trying to force it through. You can see the same dynamics in its enforcement priorities (the Commission has done absolutely nothing about the widespread and blatant violations of the principles of the Schengen area).

This briefing by the European parliament provides a lot of interesting details.

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