Jan Herman Reestman (Co-Editor-in-Chief) and Thomas Beuker (Editor) co-authored an Editorial in the European Constitutional Law Review (2017), Volume 13, Issue No. 1, 1-12. The Editorial discusses the Luxemburg veto, or more specifically the Luxembourg Compromise. The limited political and executive authority of the Union was the basis for the Luxembourg Compromise, in 1966, which resulted in the Luxemburg veto, which is an informal assurance by the six founding member states of the European Economic Community to support each other if one of them invokes a ‘vital or fundamental interest’. The Editorial explains the European Union’s struggle of imposing majority decisions on Union member states when their fundamental national interests are at stake and they are in fact reluctant or unable to implement these decisions (page 1).
The Luxembourg Compromise was born as a consequence of Charles De Gaulle’s empty chair policy. The objective of this policy was to hinder majority voting in the Council of the European Union. The Compromise made it possible that, if a Commission proposal was adopted with a majority vote and an important national interest of one of the member states was at stake, the Council would aim to reach a satisfactory solution acceptable to all member states of the Council. However, the French position was that the aim should be to reach a unanimous agreement. The adoption of the French stance gave every Council member state a veto right when a majority voting was legally conceivable (pages 1-2).
Recent references to the Luxembourg Compromise
As stated by the Authors, the Luxemburg veto has been referred on three occasions recently. It was firstly invoked in a statement by the Belgian prime minister Charles Michel. After an informal European Council meeting, in which the heads of government discussed the present state of the European Union, the common future and the result of the Brexit referendum, Michel stated that ‘I have the impression that we had more eye for each other’s interests, that there was this insight that it is impossible to impose a decision on a leader if he is unable to defend it in his parliament.’ Here, Michel mentioned the rationale behind the Luxemburg veto (page 2).
The second reference to the Luxembourg veto involved France and the United Kingdom, in June 2014. When the President of the Commission was supposed to be appointed, the British prime minister David Cameron opposed Jean-Claude Juncker as its president. Cameron attempted to block Juncker’s candidacy by exploring the possibility of the Luxemburg veto, but he failed (page 4).
Thirdly, the Luxembourg veto was referred to in the Gauweiler decision by the German Federal Constitutional Court of 21 June 2016. It stated that the Bundestag should put pressure on the government to oppose the adoption of a draft-decision, if necessary (page 5).
Dead or still alive?
The Authors of the Editorial cite the eminent German scholar Rudolf Streinz, who declared the Luxembourg Compromise dead already in 1984. Streinz also stated that the Compromise was obsolete because of the introduction of several new mechanisms, such as the Ioannina Compromise and Articles 48, 82 and 83 TFEU. The Dutch author Luuk van Middelaar followed the logic of Streinz. For him, all member states have accepted that ‘they were embedded in a constitutional order where they could be outvoted on certain important issues’. Indeed, they adopted the Ioannina Compromise of 29 March 1994 (Declaration no. 7 of the Lisbon Treaty), with which the EU foreign ministers concluded to end the deadlock regarding voting weights (page 6).
The Authors, instead, believe that the Luxembourg veto is not really dead. Indeed, France and the United Kingdom used it in 1999 and Poland in 2005 (page 8). So, the Luxembourg veto cannot be dead with the Single European Act. In fact, a culture of consensus decision-making combined with an acceptance that qualified majority voting may be applied can very well coexist with an exceptional use of, or threat to use, the veto in cases of vital national interest.
The Authors claim that the driving force of the Luxembourg Compromise is still alive. The recent references to the Luxembourg veto are the consequence of two developments: the advancement of EU integration into sensitive areas for the member states and the EU’s populist challenges, emerging from the upcoming of populist governments (page 7).
The EU’s limited political and executive authority
There have been efforts made to improve the EU’s democratic life, its constitutional credentials and the efficiency of its decision-making in all the treaties from the Single European Act to the Lisbon Treaty. So, why do the Authors argue that the Luxembourg veto is still alive? In their opinion, a constitutional legal order cannot thrive on legal authority alone. The fact that a decision can be taken lawfully is not sufficient to make it acceptable to the members of the political community (page 8).
The Authors believe that there is also a need of political and executive authority. They argue that the acceptance of EU decisions is greatly facilitated by making members of the Union feel like the institutions are representing them. They also claim the EU institutions’ authority to be dependent on the capacity and will of national politicians to defend EU decisions within their national political arenas. According to the Authors, this explains the continuing importance of the veto. As to the executive authority, it is often for the member states to enact EU decisions. A member state which is unwilling or unable to comply with its obligations may indeed be fined, but there is a lack of other means of enforcement for the EU. And, as the Authors state, the use of force in settling disputes is excluded for the EU’s means of enforcement as a consequence of the essence of the EU integration (pages 9-10).
In the Authors’ mind, the Luxembourg veto is an expression of the member states’ awareness of a political imperative. Consequently, the EU institutions are more or less forced to take a member state’s opinion into account. It might be appealing to see the negotiations over voting weights and the power of large minorities as a sign of full acceptance of majority decision making and thus the end of the veto. However, the Authors believe this merely reduced the scope of the veto. Neither they see the Ioannina Compromise as a sign of full acceptance of majority decisions (pages 10-12).
According to our thoughts, the Luxembourg Compromise is dead, but its rationale and spirit are still alive. In that part, we agree with the Authors of the Editorial. There are several new mechanisms in the Lisbon Treaty which manifest the basic idea of the Luxembourg veto, for example the Ioannina Compromise which is the successor to the Luxembourg Compromise. The Ioannina Compromise is an agreement between the EU foreign ministers concluded in the Greek town of Ioannina. This agreement ended the deadlock regarding voting weights. The incentive was the enlargement of the EU with Austria, Finland and Sweden as of 1995. This expansion had consequences for the Council’s voting system. The point is that the more member states there were, the more difficult it would be for a member state to block a Council decision (see Middelaar).
Especially the United Kingdom and Spain were concerned about the effects of this expansion. Therefore, these two member states threatened to block the accession of the above-mentioned countries (see Middelaar, page 125). However, the ten remaining member states refused to accept the British and Spanish demands. So, what was the solution? The outcome of the Ioannina Compromise was that if a Council decision was opposed by 23-26 votes, the Council would make the effort to reach an agreeable solution that would be adopted by at least 68 votes. The main point with this Compromise is that it admits extra time of ‘indefinite length’ for the member states to negotiate until the Council decision may be adopted by qualified majority vote. This Compromise was accepted by all the member states (see Middelaar, page 125). Although the Ioannina Compromise is the successor to the Luxembourg Compromise, the core of the Luxembourg Compromise still lives on.
The Luxembourg Compromise has, as the Authors state, been referred to in recent years, but it has actually not been used since 2005, as mentioned above. Out of the three occasions on which it was invoked that the Authors bring up, it was only explicitly mentioned in the Gauweiler case. The Belgian prime minister Charles Michel, however, manifest the rationale of the Luxembourg Compromise, but he did not mention it explicitly. Neither did David Cameron in his attempt to block Juncker, although the French president Hollande, in response to the attempt, actually did mention it.
One could also question how the founding states of the Luxembourg Compromise cooperate today. As mentioned, it has not been used for many years, and the United Kingdom will soon not be part of the Union. In addition, since the Luxembourg Compromise was concluded in 1966, the EU’s territory has expanded vastly: it now consists of 28 member states (soon to be 27). Have the ‘newcomers’ joined the Compromise? It seems not. This becomes rather clear when looking at the adoption of Council Decision 2015/1601. Hungary, the Czech Republic, Slovakia and Romania all opposed the adoption invoking vital or fundamental interests, but none of them triggered the Luxembourg Compromise. We agree with the Authors that the reason for this could be that, since these countries were not part of the EU when the Compromise was concluded, it is simply not part of their political mind-set. In addition, none of the states that concluded the Compromise came to the rescue in the case of the Council Decision mentioned above. However, the idea that the EU should not force member states to comply with for example a decision when it is fundamentally opposed by some clearly still exists. Consequently, we think the Luxembourg Compromise is dead, although its rationale and spirit lives on.
Christofer Bjerkhoel, David Peralta, Anna Puck Lundgren and Nora Shoki
 Luuk Van Middlelaar, ‘Spanning the River: The Constitutional Crisis of 1965-1966 as the Genesis of Europe’s Political Order’, EUConst, 4 (2008), pp. 98-126, at pages 124-125.