The unanimity rule revisited: the case of revisions of hybrid constitutions

Abstract

The unanimity rule is one of the major topics that James Buchanan and Gordon Tullock discuss in The Calculus of Consent (Buchanan and Tullock 1962: see especially Chap. 7). This rule is a corner stone of an individualistic approach to constitutional economics. It minimizes externalities and protects individual freedom. In the absence of decision-making costs, it turns out to produce optimal results. If decision-making costs are introduced, the unanimity rule is no longer optimal as such. Yet, it is recommended for the choice of basic constitutional rules that are agreed upon under the veil of uncertainty. As a member of the European Constitutional Group that drafted a proposal for a European Constitution in 1993 (European Constitutional Group 1993), I applied the methodological instruments of constitutional economics to studying the constitutional problems of the European Union. Since then, I have discussed problems of unanimity rule and investigated the deadlock of budgetary rules in the European Union together with Charles Beat Blankart (Blankart and Kirchner 2004). At a conference of the Transatlantic Law Forum in Hamburg in 2011, I argued that under present circumstances, it is impossible to have major revisions of the Treaties constituting the European Union (the “European constitutional impossibility theorem”). On December 9th, 2011 member states of the European Union agreed to a socalled “fiscal compact.” But this “Statement by the Euro-Area Heads of Government” was signed by only 26 of the 27 EU’s member-states. The unanimity requirement of Article 48 of the Treaty on European Union (TEU), which is needed for a revision of that Treaty, has not been met. I have expressed doubt on the success of the attempt to circumvent this requirement through an intergovernmental treaty by a sub-group of the member-states (Kirchner 2011). In this paper, I demonstrate that unanimity rule leads to a final blockade in case of a hybrid constitution such as that of the European Union. By a ‘hybrid constitution,’ I mean a