A. Diversity of Interests as Constitutional Blessing and a Built-In Check

In his earlier work, Madison was puzzled by the stark gulf of religious tolerance in eighteenth century America compared to Europe. He realized that America, unlike Europe, was religiously diverse, and its multiplicity of sects had restrained larger sects from dominating others. This way, America simply secured a level of tolerance that ‘no appeal to revolutionary principles or public good could have accomplished’.Footnote ⁴⁷ From that he realised that in the same way that ‘multiplicity of sects’ protects religious rights, the increased ‘multiplicity of interest’ attained through integrating many states together can provide a ‘built-in check’Footnote ⁴⁸ for civil rights against oppressive local majorities. In Federalist No 51, Madison compared religious and political faction. In politics as in religion, diversity of interest—understood to be multiplicity of sects—was the safest guarantee against the risk of one faction ‘capturing the reins of government and turning it to its own interests’.Footnote ⁴⁹

Madison concluded then that as a pre-condition to ‘carry into effect schemes of oppression’, groups sharing ‘malevolent’ impulses must ‘concert’ their interests and ‘act in unison’.Footnote ⁵⁰ To prevent this concert, an integrative multilayered constitutional order provides a remedy. Since it diversifies the interests, actors, and factions significantly well beyond the narrower scope of the state level, the ‘opportunity of communication and concert’ between nefarious factions becomes restrained and render them less ‘politically [e]ffective’.Footnote ⁵¹ The component of the Madisonian insight can be broken down into the following syllogism:

The middle premise ‘interest diversification makes concert more difficult’ is the linchpin of the Madisonian claim to secure impartiality. The chart below helps visualize the argument. Assume there are five equally populated states, each dominated by a racial majority with other dispersed racial minorities. The states then come together into an integrative federation. For simplicity, let us assume the ethnic ratios follow and correspond to representing interests at the legislature as indicated in the chart below (Figure 1).

Figure 1. Diversification in Integrative Union

For ‘simple arithmetical reasons’, strong state majorities get diluted at the union level, and the dangers of unrestrained majority are higher in states.Footnote ⁵² The smaller and less complex the polity, the easier for the wrong kinds of unrestrained majorities to form.Footnote ⁵³ Local majorities must form a coalition across states to act on the federal/union level. Such an inter-state coalition must inescapably involve a high assortment of interests and actors. The durability of such a coalition is challenged by the shifting, transitory nature of the interests of its constituent parts. Under certain conditions, cracks appear, and it becomes more difficult for a coalition either to ‘act in unison’ or dominate the course of federal action.Footnote ⁵⁴ The ensuing uncertainty and the fear of being dominated by countervailing groups make it more prudent for factions to move to their second-best option, which is a common modicum of objectives and more egalitarian principles.Footnote ⁵⁵ To wit, the check underlying Madison's Federalist No 10 is to minimize the ability of strong factions to impose their unbridled interest at the federal level compared to their ability to do so at the state level.Footnote ⁵⁶

Numerous practical examples attest to the workability of the Madisonian argument where an increase in impartiality is traceable in the union compared to the state level. The well-known battle over US civil rights reflects how centralization and its concomitant diversification helps break ‘concert’ and provide a more impartial protection of minority rights compared to state majorities. Despite the existence of the strongly worded Equal Protection Clause of the US constitution's Fourteenth Amendment, when minority rights were left to states (as a non-neutral umpire) the result was segregation and disenfranchisement. When centralised, things took a different course.

The New Deal's centralising structure, along with ‘incorporation’ (ie extension) of the Bill of Rights to apply to states, equipped the federal umpire with the jurisdiction and factual tools to intervene. Then, lawyerly activism, coupled with conducive external factors, pushed the indifferent federal umpire away from inertia which was best epitomized judicially by the Brown decision.Footnote ⁵⁷ As the Congress contemplated engagement,Footnote ⁵⁸ the anti- right coalition led by Richard Russel pushed back.Footnote ⁵⁹ The sequence of events, multiplicity of actors with different incentives, and the joint impact of global and domestic factors significantly eroded the Southern coalition. Russel bitterly complained that their alliance no longer ‘fought civil rights in concert’.Footnote ⁶⁰ Restraining this coalition's capacity facilitated the adoption of the Civil Rights Acts of 1964 and 1968 as well as the Voting Rights Act 1965, which have led ‘overt’ discrimination to go ‘underground’.Footnote ⁶¹

In the EU, centralization of sex discrimination and equal pay affirms the Madisonian logic. Upon integration, competing interests started to collide pitting the neo-liberal British policies against the egalitarian French industries.Footnote ⁶² The expansion of the political orbit beyond the state allowed euro-law associations and the CJEU,Footnote ⁶³ to break the ‘control’ of Thatcher and her allies compared to their ability to control legislative outcomes at the national level. This is evident through contrasting how the EU law clashed and prevailed over the less egalitarian Westminster Acts.Footnote ⁶⁴ Eventually the recalcitrant states conceded and their interests shifted to ensure that others would adhere to equal pay to prevent the comparative market advantage of cheaper production costs by paying women less.Footnote ⁶⁵ Overall, many scholars concur that centralizing this issue opened avenues for sex equality that were not possible within individual Member States.Footnote ⁶⁶

The takeaway is to show that according to the maxim of nemo judex in causa sua, placing minority rights within the central authority of the union coupled with majority voting diversifies interest and makes concert among malevolent coalitions more difficult. This in turn, helps increase impartiality and relatively shield minority interests from local prejudices. Surely having the suitable constitutional allocation of powers is not a ‘Newtonian’Footnote ⁶⁷ machine that ‘flawlessly’ produce justice without popular ‘vigilance’.Footnote ⁶⁸ Rather it is a conducive factor, in the sense that it harnesses inter-state social and judicial vigilance to nudge and empower the union legislature to act impartially. These harmonious interactions and the added value of a union is largely restrained by Article 19 TFEU's unanimity requirement as shown next.

B. Why Unanimity and Article 19 Violate the Nemo Judex in Causa Sua Rule?

Unanimity simply frustrates the logic of the nemo judex in causa sua maxim. It will be recalled that the main premise of the Madison's Federalist No 10 is to break the ‘ability to concert’ among local majority factions. However, here concert is not needed because unanimity allows any local majority singlehandedly to block any purported measure at the EU level. As is well-known, the Council members are ministers appointed by their states and are not directly elected. Thus, whenever unanimity is required, one state's local majority has the power to be the judge of its own case and veto a proposal notwithstanding the position of the elected European Parliament (Figure 2).

Figure 2. Integration with Unanimous Voting

Contrary to Madison's reliance on diversity as a constitutional check, here the more veto players you have, the more the risk of inaction increases. Thus, in the EU the unanimity hurdle has become more difficult since the 2004 enlargement and the growth of EU states, given that the higher the number of veto players the less likely a measure may pass. Differently put, unanimity is almost tantamount to decentralisation. When acting unanimously, the Council ‘simply is the Member State governments’.Footnote ⁶⁹ To harken back to US history, in spite of its Constitution's strongly worded Equal Protection Clause, when minority rights were left to states (as non-neutral umpires), the result was segregation and disenfranchisement. In contrast, when centralised desegregation was undermined, overt discrimination went underground. Unanimity repeats the pattern of decentralising rights to the state majorities as partial umpires judging their own cases.

Prior to illustrating how unanimity shapes and restrains the development of EU law on minority rights, I explain Calhoun's ideas as unanimity's most ardent defender. I then identify conceptual similarity between Calhoun's model and Article 19 TFEU. This is important because there is no such thing as an orphan idea without a conceptual genealogy or a historical parallel.Footnote ⁷⁰ And ‘the desire to reform’ a legal concept goes ‘hand in hand with the desire to know its [historical parallels]’.Footnote ⁷¹ Particularly since there remains a gap—as Miller and Nicola have noted—in ‘the dominant European constitutional law paradigm’ in analysing ‘the role of US states’ rights movements’ and its connection to ‘racial subordination’.Footnote ⁷²

C. Calhoun and Article 19 TFEU's Disturbing Similarity

Unanimity and state veto in Article 19 TFEU resemble the work of John C Calhoun. The former US secretary of state, and twice vice-president, is regarded as the antebellum's evil ‘genius’.Footnote ⁷³ One of his notorious intellectual contributions was to shift the debate on slavery from being conceived as ‘necessary evil’ to a ‘positive good’.Footnote ⁷⁴ Apprehensive of ‘abolition’ and ‘free soil’,Footnote ⁷⁵ he sought to preserve the status quo by developing a constitutional theory that turned ‘the Madisonian legacy on its head’.Footnote ⁷⁶ To do so, Calhoun offered a competing analysis of the idea of sovereignty, demos, the nature of a union, and, most relevantly, the voting requirement within such a union. All, with some necessary caveats, are relevant to the contemporary EU's constitutional analysis.

In EU scholarship, Schütze was the amongst the first to draw attention to the parallels of Calhoun's ideas to the ongoing supremacy debates in the EU. In ‘A Letter from America’, Schütze offered an informative account on the question of supremacy and Calhoun's idea of ‘nullification’ or vetoing the execution of federal laws.Footnote ⁷⁷ But Calhoun has twin ideas regarding veto: one on preventing the ‘execution’ of federal laws, which Schütze took to task, the other is on the voting procedure for ‘enacting’ laws, which is intimately linked to his views on race and slavery. This latter aspect is what this Article focuses on to pick up the comparison from where Schütze left off.Footnote ⁷⁸

It is true that Calhoun's idea came to the foreground in the 1828 ‘Tariff of Abomination’ economic crisis where the agricultural South ‘protested against’ a federal tariff that was seen as protective of the ‘industrial North’.Footnote ⁷⁹ However, consensus exists that it was Calhoun's view on race and uncompromising ‘commitment to slavery’ that dictated the ‘contours of his political theory’.Footnote ⁸⁰ Calhoun started with questioning the principle of ‘all men are born free and equal’ as ‘unfounded and false’.Footnote ⁸¹ To him, any laws on the emancipation of African Americans are unconstitutional not only because they disturb what he perceives as ‘racial hierarchy’ Footnote ⁸² but also because they encroached upon ‘reciprocity between states’.Footnote ⁸³

With this view in mind, how could Calhoun secure the status quo and prevent, what he perceives as, unconstitutional federal abolition that would disrupt racial supremacy? Calhoun's ‘extended’ answer boils down to the doctrine of ‘concurrent majority’,Footnote ⁸⁴ which is that ‘States still retain their sovereignty … unimpaired’,Footnote ⁸⁵ and that states always have conflicting interests, thus, the decision principle within the union should be ‘unanimity not majority rule’.Footnote ⁸⁶ Rather than what he terms ‘numerical majority’, he offers his competing model of ‘concurrent majority’, by which he meant the ‘unanimous agreement’ of ‘the majorities within’ all states.Footnote ⁸⁷ This way, states can defend their own interests by vetoing any unfavourable change to their local majority. The veto can be overridden only by a constitutional amendment.

To Calhoun, ‘unanimous agreement’ is constitutionally far superior to numerical majority. His argument rests on several premises. First, to Calhoun, ‘[s]overeignty is an entire thing to;—to divide, is,—to destroy it’ and sovereignty resided in ‘the people of the several States’. Thus, he insisted that ‘politically speaking … there are no other people’, no sovereignty nor demos at the federal level to justify majority voting.Footnote ⁸⁸ Secondly, he argued that state veto is a political safeguard and a ‘check’ on the Union's unwarranted competence creep into state sovereignty and interests.Footnote ⁸⁹ Thirdly, to show that unanimity is far from a constitutional anomaly, he drew an analogy between states’ legislative vetoes and the separation of powers’ reciprocal checks whereby certain branches of government veto each other.

One problem with Calhoun's reasoning, not uncommon today, is that he missed the ‘constitutional forest’ for the trees.Footnote ⁹⁰ Focusing on particulars, he failed to account for the first principles in classical constitutional theory. Unlike Madison, Calhoun's work is ‘in no sense founded upon the funded wisdom of the ages’ but rather ‘represents the exact opposite’.Footnote ⁹¹ Unsurprisingly then, Calhoun overlooked the foundational role of the nemo judex in causa sua rule in constitutional theory and the Federalist Papers. The incompatibility of Calhoun's model with the latter came from no less authority than Madison himself as the last surviving Founding Father.Footnote ⁹² Exigencies of space preclude full discussion of Madison's reply (which is well-discussed elsewhere),Footnote ⁹³ I only highlight one point stressed by Madison on the analogy between state veto and executive veto in the separation of powers and its concomitant impact on perpetuating injustice.

Madison dismissed any ‘valid analogy’ between ‘reciprocal checks’ among the three branches of government and ‘a single state's’ capacity to veto.Footnote ⁹⁴ ‘Disputes between independent parts of the same [government]’ lead to a deadlock.Footnote ⁹⁵ This is fundamentally different from ‘disputes between a state Govt. and the Govt. of the [United] States’. Here ‘each party possessing … an organized Govt … and having each a physical force to support its pretensions’. Footnote ⁹⁶ In other words, while a reciprocal check seeks to prevent legislation in tutu, unanimity restrains only the central government while allowing a free hand of the state legislature to adopt laws as they please, to the detriment of minorities. State veto, then, inverts the logic of nemo judex in causa sua rule by expanding, rather than restraining, state majorities’ capacities to judge their own causes.

The Civil War settled the Madison-Calhoun debate and consigned the latter to ‘the American dustbin odium’.Footnote ⁹⁷ However, Calhoun's model witnessed a partial resurrection (albeit unconsciously) in the EU's sole article on minority-related legislative power. It is true that the similarity between the EU's approach and Calhoun's is only partial because of the divergent socio-political circumstances that he laboured in compared to today. Nonetheless, the partiality does not exclude the disturbing similarity in essence and consequence.

In essence, his mechanism aimed to ensure that the union would act only through consensus. This is the case with Article 19 TFEU, where consensus is needed to ‘combat discrimination’.Footnote ⁹⁸ Another way to look at the similarity between the two models is from the prism of the status quo. At the heart of Calhoun's theory is the desire to insulate the status quo from change as much as possible. Yet, the status quo, as Sunstein notes, is often ‘neither neutral nor just’.Footnote ⁹⁹ To insulate the status quo from change is to perpetuate the injustices befalling many of the underrepresented parts of the society. Likewise, Article 19 TFEU insulates the status quo of EU minorities and its concomitant injustice. While Calhoun's model was not fully tested, Article 19 TFEU has been. The consequence of Article 19 TFEU has rendered the EU ‘minority agnostic’ and its contribution ‘limited’Footnote ¹⁰⁰ to ‘all but the most anodyne of actions’,Footnote ¹⁰¹ leaving minorities at the mercy of the ‘tyranny of veto’Footnote ¹⁰² as explained in the next section.

A. Article 19 TFEU's Drafting and Its Current Use

Despite Europe's heavy legacy of racism which almost brought the continent to the brink of destruction, the European project, up until the end of second millennium, had almost no role in protecting racial and religious minorities.Footnote ¹⁰³ Things changed with the Amsterdam Treaty (1997),Footnote ¹⁰⁴ which introduced Article 13 EC (now Article 19 TFEU) conferring power on the EU to adopt legislation to combat discrimination on a range of grounds within the existing Union competences.Footnote ¹⁰⁵ Adding such a competence came as a product of many factors. Chief among them was the collapse of communism and the impending eastward expansion of European integration to many post-communist countries with ‘a messy record’ of treating ethnic and national minorities.Footnote ¹⁰⁶ An additional factor was the growing pressure from civil society and the European Parliament for involvement on ‘a wider range of discrimination grounds’.Footnote ¹⁰⁷

While the original proposal of Article 13 EC endorsed qualified majority voting (‘QMV’), pressure from a few Member States spearheaded by the UK managed to weaken the Article by requiring unanimity for its use.Footnote ¹⁰⁸ The UK Parliament's archives demonstrates that the British view, which concurring Member States hid behind, saw ‘the defence of sovereignty is bound up with the concept of veto’.Footnote ¹⁰⁹ While certain parallels can be drawn between Calhoun and the UK's position, it is essential to underscore an important distinction between the position of Member States endorsing majority voting and that of Madison. Whilst Madison made a clear recourse to first constitutional principles, representative of states supporting majority voting offered mainly pragmatic arguments that were described as lacking a clear ‘direction’.Footnote ¹¹⁰ Commentators noted that the Irish presidency ‘failed to push the negotiations along’Footnote ¹¹¹ and to articulate a compelling criteria to determine which matters should be subject to qualified majority voting.Footnote ¹¹² Therefore, it was left to the Dutch presidency ‘to make some attempt’ though ‘with little success’.Footnote ¹¹³ Ultimately, the unanimity requirement prevailed on pragmatic grounds without the kind of a constitutionally enriching debate as the one we saw in the US.Footnote ¹¹⁴

Since its adoption, the legislative reliance on Article 19 TFEU has been exceedingly rare. The only two measures enacted using the Article date back to 2000 and were induced by an ‘unusual twist of political fate’,Footnote ¹¹⁵ or what others term an ‘external factor’ well beyond the control of constitutional actors.Footnote ¹¹⁶ In February 2000, Jörg Haider's radical right-wing party was elected to the Austrian government, which evoked a call for a reaction from the EU and prompted ‘the fast-tracking’ of the Commission's proposal for a directive on discrimination on grounds of racial or ethnic origin.Footnote ¹¹⁷ In June 2000, Member States adopted the Racial Equality Directive (‘RED’).Footnote ¹¹⁸ Shortly afterwards, the EU ‘moved swiftly to complement’Footnote ¹¹⁹ this with the Framework for Employment Equality Directive (‘FED’),Footnote ¹²⁰ which extended the prohibition of discrimination to the grounds of ‘religion or belief, disability, age, and sexual orientation’. Arguably, Haider's affair had an important impact in securing an exceptional agreement. The then-new Austrian government ‘would not dare oppose the Race Directive out of fear that this would legitimize the reproach by the government to the other fourteen member states … that includes a racist party’ and if other Member States sought to oppose the proposal, ‘they would be blamed and shamed for not putting their political power where their mouth is’.Footnote ¹²¹

Nonetheless, after more than two decades and despite certain ‘symbolic’Footnote ¹²² or ‘mitigated’ improvements,Footnote ¹²³ the EU's contribution has been described as ‘skin deep’ and ‘troublesome’.Footnote ¹²⁴ If one considers religious minorities, it was not until 2017 that the first case on religious discrimination was decided, which was, to say the least, disappointing.Footnote ¹²⁵ The Commission's proposal to extend protection against discrimination on grounds covered by FED beyond work has failed to pass since 2008. As EU law currently stands, it would be ‘lawful’ to deny services for someone manifesting a religious symbol be it a Sikh turban, a Jewish yarmulke, or a Muslim headscarf.Footnote ¹²⁶

In the absence of a strong EU role, Vouchez has comprehensively illustrated the ‘exclusionary’ consequences resulting from the invocation of neutrality by many Member States to conceal hostility towards religious minorities, particularly a ‘strong dimension of islamophobia’.Footnote ¹²⁷ Further, through the examination of various national case law, she highlights how accommodating religious minorities is often perceived by national courts to ‘cause trouble’ and ‘threaten the public order’.Footnote ¹²⁸ As many have noted, the minority policies of several Member States which are frequently phrased in the language of integration serve de facto as a majoritarian tool to control ‘groups of non-Western descent’.Footnote ¹²⁹

Equally troubling is the EU's six million Roma minorities who are still facing de facto segregation in education, housing and other spheres of life.Footnote ¹³⁰ They underwent a fait accompli of inhuman expulsion by French authorities in 2010.Footnote ¹³¹ Statistics still reveal a high level of anti-Roma sentiments across EuropeFootnote ¹³² and ‘unscrupulous politicians’ often successfully use Roma as ‘a scapegoat’ to ‘refocus discontent’.Footnote ¹³³ Yet very few cases tackle the widespread anti-Roma, anti-Black racism or anti-Semitism and Islamophobia.Footnote ¹³⁴ The scholarship concerning the multifaceted challenges faced by racial and religious minorities within the EU is too extensive to warrant further exploration here. Suffice it to refer to the diagram used in the Commission's latest anti-racism action plan.Footnote ¹³⁵

The question then is to what extent the unanimity requirement of Article 19 TFEU contributes to these problematic figures. Obviously, various factors, such as the colonial legacy of certain Member StatesFootnote ¹³⁶ and differing philosophies regarding anti-discrimination lawsFootnote ¹³⁷ contribute to the dynamics at the national level. However, the primary consequence of unanimity is that it leads to EU inaction and perpetuates the (unjust) national status quo. By allowing any national majority to judge their own interest and block any purported EU measure, it frustrates the nemo judex in causa sua rule and thus inhibits the EU from utilizing its potential as a supernational check on national majoritarian biases. This can be demonstrated through the following four aspects.

First, unanimity's negative impact can be best illustrated by the failure to adopt the Commission's 2008 proposal for the ‘Horizontal Directive’ despite being a ‘cautious proposal’ seeking to equate the scope of discrimination of religion and other grounds to that of RED.Footnote ¹³⁸ Whilst it was approved by the EP in 2009,Footnote ¹³⁹ the proposal ‘remained stuck’ in the Council facing intense German objections on its costs for business and other Member States’ concerns regarding social security.Footnote ¹⁴⁰ If the three month blocking of the passage of the 1964 US Civil Rights Act earned the title of ‘longest debate in history’,Footnote ¹⁴¹ how should the Commission proposal be described, having been blocked for more than 14 years.

Secondly, the impact of unanimity can also be demonstrated by comparing it to other areas or institutions where unanimity is not required. Most obviously, sex equality, generally unshackled by unanimity remains the most protected ground where nine directives have been successfully enacted and transposed.Footnote ¹⁴² But even within the field of racial and religious minorities, a more subtle comparison is the attitude of EU institutions with more federal/supranational composition and thus unrestrained by unanimity. The European Parliament in 1995, while contemplating different options of the then proposed Article 19, sought a very expansive solution by extending the EU's market engine competence enshrined in Article 18 TFEU (discrimination on grounds on Member States nationality) to all possible grounds of discrimination.Footnote ¹⁴³ Additionally, the European Parliament approved the Commission's proposal on equal treatment twelve years ago and proposed important amendments regarding the introduction of ‘multiple discrimination’.Footnote ¹⁴⁴ However the Council ‘retained none’ of these suggestions and failed to pass the proposal.Footnote ¹⁴⁵ Unanimity at the Council remains a solid rock on which the efforts of other EU institutions are crushed.

The Commission too, unrestrained by the shackles of unanimity, took numerous steps on this front.Footnote ¹⁴⁶ This includes chasing defiant EU states through ‘ardent transposition battles ‘of the RED and FED directives.Footnote ¹⁴⁷ Between 2005–2007, the Commission initiated infringement proceedings for non-conformity with both directives against 25 Member States mainly.Footnote ¹⁴⁸ In fact, the Commission was a strong advocate of the introduction of qualified majority to Article 19 TFEU's predecessor and expressed its disappointment for falling short of ‘the initial objective (which envisaged that the qualified majority should become the general rule)’.Footnote ¹⁴⁹ More recently, the Commission blamed Article 19 TFEU's unanimity requirement for leading to ‘an inconsistent legal framework and an incoherent impact of Union law on people's lives’.Footnote ¹⁵⁰

Third, the danger of unanimity on minorities can even extend beyond perpetuating inertia and the ‘unjust’ status quo. It could establish a ‘double hurdle’ to minority protection measures at the national level.Footnote ¹⁵¹ As Kochenov remarked, ‘virtually any right reserved for a special group of citizens of a particular Member State who belong to a minority must be opened up to any EU citizen from other Member States’.Footnote ¹⁵² The ‘inherent market bias’ of the EU and the stringent CJEU test for excluding other EU citizens from minority-tailored protective provisions undermines and disincentivizes vanguard Member States’ ability to protect minorities.Footnote ¹⁵³ Had the EU legislator not been restrained by unanimity it would have been easier to negotiate and enact a measure harmonizing and accommodating the diverse protective measures needed to accommodate minorities across different Member State levels.

Fourth, the inability to utilise Article 19 TFEU to pass further legislative measure contributes to hindering jurisprudential development. As Advocate General Mazák noted, ‘Article 19 TFEU is simply an empowering provision’ and as such ‘it cannot have direct effect’.Footnote ¹⁵⁴ He cautioned that any judicial activism in this area ‘[n]ot only would … raise serious concerns in relation to legal certainty, it would also call into question the distribution of competence between the Community and the Member States, and the attribution of powers under the Treaty in general’.Footnote ¹⁵⁵ Circularity and the ‘constitutional catch 22’ is obvious here.Footnote ¹⁵⁶ Unanimity cannot be interpreted away,Footnote ¹⁵⁷ and the Council with its current 27 Member States cannot easily agree to expand legislations beyond the existing measures.Footnote ¹⁵⁸

Before proceeding to the next Section, one remark must be highlighted on the Racial Equality Directive and how it may give deceptive optimism at first impression. Given the politically conducive circumstances of its adoptions, it has the broadest material scope among all discrimination grounds.Footnote ¹⁵⁹ The RED forbids discrimination not only in employment-related fields, but also in social protection, healthcare, education, and the supply of goods and services, including housing.Footnote ¹⁶⁰ However, as de Búrca remarked, the directive is a ‘more genuine framework in nature, in so far as it contains a general prescription … to which States must commit themselves, but without prescribing in detail how this is to be achieved’.Footnote ¹⁶¹

Relatedly, the directive almost exclusively relies on the ‘passive’ protection through ‘complaints-based’ enforcement, which is particularly insufficient to rectify historical inequalities of racism.Footnote ¹⁶² According to the Commission's own reckoning, the directive ‘is not enough to resolve the deep-rooted social exclusion …. Legislation needs to be combined with policy and financial measures’. Footnote ¹⁶³ Race, taken alone and keeping multiple discrimination aside, is ‘vastly complex’.Footnote ¹⁶⁴ ‘Proactive’ legislator intervention,Footnote ¹⁶⁵ incentive measures, and redistributive measures are needed to rectify historical ethnic inequality.Footnote ¹⁶⁶ However, RED leaves positive action to the discretion of Member States, and so far there has been no single case before CJEU tackling positive action on race. As is well-known, incentives and proactive measures played a large role in facilitating compliance and promoting interracial contact in the US.Footnote ¹⁶⁷ This further attests to the fact that given the vulnerability of racial and ethnic groups, they are affected the hardest by legislative inaction resulting from the unanimity hurdle.Footnote ¹⁶⁸

B. Outlining the Scope of Reform and Its Objections

With these contemporary repercussions in mind and given the previously discussed historical background, the EU might want to distance itself from Calhoun's model with its negative connotation and racist motivation. It should be stressed that this Article and the logic of nemo judex in causa sua advocates a move away from unanimity only with regards to Article 19 TFEU where violation of the nemo judex in causa sua rule is explicit and the cost for minorities is the most disproportionate. Differently put, as the EP has long advocated, the same voting arrangement akin to that of Article 19 TFEU's immediately preceding Article 18 TFEU should be adopted for Article 19, as well as Article 157 TFEU.

This does not mean removing unanimity in other areas, such as security–related aspects, the Flexibility Clause of Article 352 TFEU, or technical areas, such as increasing the number of Advocate Generals for example.Footnote ¹⁶⁹ These aspects do not pit the majorities against the minorities in such a way where the nemo judex in cause sua rule is engaged, and thus are not prone to the same critique offered in this Article. However, even with such a relatively narrow proposal, a few counterarguments are bound to arise and should be clarified before concluding.

First, it could be argued that Article 19 TFEU's unanimity is a ‘political safeguard’ to ensure respect of national interests.Footnote ¹⁷⁰ This rehashes Calhoun's rationale, which called unanimity a ‘check, or balance of power’.Footnote ¹⁷¹ This argument conflates a safeguard with a roadblock. Safeguards are meant to accommodate dynamism and change, yet in the case of unanimity, it becomes an insurmountable and almost perpetual obstacle, as evidenced by the entrapment of the ‘cautious’ equality directive proposal for a span of 15 years. Therefore, this objection reverses the Madisonian reply to Calhoun that veto perpetuates the unfair status quo and leaves state majorities free to oppress minorities.

This objection would have been persuasive had unanimity been the norm for all EU competences. But since the treaties alternate between different voting requirements, in choosing between unanimity and majority voting for different legal bases, one may inquire why Article 19 TFEU falls within the ambit of unanimity. The crux of constitutional allocation of powers is to be guided by ‘reflection’ and ‘choice’ rather than randomness and ‘accident’.Footnote ¹⁷² Treaty drafters should be able to justify their choices in terms of EU values and ‘squarely confront’ the moral ‘cost’ of such choices.Footnote ¹⁷³ Opting for unanimity for non-discrimination speaks volumes about the priority of this domain. The nemo judex in causa sua argument and its history shows unanimity's particularly disproportionate cost for minorities. This shows either a complete discarding of foundational constitutional theory or an intentional discarding of minorities. Whilst Article 2 TEU upgrades minority rights to an EU value, the unanimity choice relegates its protection to the lowest level for the reasons discussed earlier.Footnote ¹⁷⁴ It is the duty of academics to lay bare the costs of such a choice, as well as the contradiction at the heart of the treaties, by showing that the reference in Article 2 may be ‘half-hearted’ when operationalised through Article 19 TFEU.Footnote ¹⁷⁵

Secondly, moving Article 19 TFEU to majority voting does not mean encroaching on national traditional values in areas such as family law.Footnote ¹⁷⁶ As ‘a lex generalis legal base’, Article 19 TFEU can be used only ‘where the Treaty does not already contain another more specific lex specialis legal base’. That is why despite Article 19's mentioning of sex, equal pay measures are grounded in Article 157(3) as the lex specialis.Footnote ¹⁷⁷ Likewise, matters of cross-border family law, for instance, will continue to be subject to the special legislative procedure in Article 81(3). This nuanced understanding is already underscored in the entrapped 2008 Commission Equal Treatment Proposal, which notes that it would apply ‘without prejudice to national laws on marital or family status and reproductive rights’.Footnote ¹⁷⁸ This furthers reflects that moving Article 19 TFEU to majority voting will not jeopardise the fine balance between the Union's role in protecting minorities and the imperative of respecting the commendable diversity of Member States’ cultural values.