Theme: Poland wants to reopen the debate about voting in the Council.
Summary: The Polish government has made public its desire to renegotiate the
voting system in the Council. The main reason is that the voting system
envisaged in the Constitution implies a huge loss of voting power with respect
to Germany and a break-up of the accession package which brought Poland to the
EU. Whereas the previous government accepted the new voting system as a part of
a global package, the new government considers that once the Constitutional
Treaty is open for renegotiation, each and every member state has the right to
place onto the agenda the elements it dislikes. Whereas this is not often
clearly perceived from abroad, the Polish government has adopted a constructive
position: rather than a ‘Nice or die’ position, it is demanding that new options
be examined, discussed and eventually negotiated. One of them is the ‘square
root’ formula, which offers some sort of middle point between the Nice system
and the Constitutional Treaty, but there are other possibilities. But, first
and foremost, the European Council should allow the issue to be included in the
IGC’s agenda. Not to do so would not only amount to repeating the mistakes made
during the previous IGC negotiations but would open a question mark about the
legitimacy of the EU’s treaty-making processes and threaten the satisfactory
conclusion and ratification of the new Treaty.
Analysis
The Setting
There seems to
be a wide consensus across the European elites that the Union requires a new Treaty
with at least some changes in its institutional set-up. Most states back the
Constitutional Treaty’s institutional provisions. Issues such as the size of the
Commission, the permanent Presidency of the Council or the granting of new
powers to the European Parliament are not contested by any member state. The
only two institutional novelties that do not meet the approval of all 27 member
states are the Minister of Foreign Affairs’ label and the new voting system in
the Council, which is accepted by most member states but openly opposed by Poland
and the Czech Republic. Since the earlier issue can and most likely will be
resolved easily by changing the ‘Minister’ label into something more suitable,
the latter issue attracts most of the attention.
Voting in the
Council was a hot political issue during the Convention and the 2004 IGC. Then,
Poland and Spain opposed proposals to change the Nice Treaty’s voting system, based
on weighted votes, to a new system which was predominantly based on the
population criteria.[1]
With the 2004 elections in Spain, the Madrid-Warsaw axis was broken. Left
alone, Poland accepted the modified Constitution voting model and on 29 October
2004 signed the draft Treaty together with the other member states. So, even if
Warsaw agreed to the Constitutional model in 2004, it did so reluctantly.
The failure of
the French and Dutch referendums in spring 2005 and the coming to power of new
conservative governments in Warsaw and Berlin later that year had a major
impact. The preceding left-wing Polish government signed the Constitutional
Treaty without counting on the support of the domestic opposition. But following
the 2005 elections the situation changed and both the ruling coalition (based
on the conservative Law and Justice Party) and the main opposition party (the liberal-conservative
Civic Union) are against the new voting system. Also, even if the new German
government has not changed its position vis-à-vis the Constitution, Poland
perceives it as less one-sided and more constructive towards other member
countries’ objections than its predecessor.
No Longer ‘Nice or Die’
The first and
most important point of reference for Poland in the upcoming negotiations is,
once again, the Council voting system. But the similarity between the past and
today overshadows some important differences. Some of the arguments used four
years ago are repeated in the current context, yet there are important
novelties in the Polish position in comparison with its previous one.
First, the ‘Nice
or die’ motto, which symbolised the Polish position in the past, has gone. After
acceding to power in 2005, the government had a twofold position concerning the
European Constitution: on the one hand, the ‘Constitutional Treaty was dead;
hence there was nothing to talk about’; on the other hand, although the President
made various public statements pointing out that there were a number of issues
in the Constitution he did not like, he hardly referred to the Council’s voting
system. Therefore, during 2005 and 2006 there was almost no Warsaw perspective
on the Constitution at large and the Council voting issue in particular. The
2003 ‘Nice or die’ was replaced by a void.
In this context,
the positions on EU institutional reform which Polish officials hold today are
both new and old. The main difference between 2003 and 2007 is that the Polish
government is no longer defensive, but offensive in its attitude towards voting
in the Council. ‘Nice or die’ is no longer the Polish position’s rallying cry.
Back in 2003, Warsaw defended the status quo of the Nice Treaty provisions. In
2007, with President Lech Kaczynski agreeing the draft Constitution’s text as a
basis for further negotiations, Poland is not defending the status quo, ie, it
is not defending Nice anymore but trying to modify the Constitution’s
provisions. Therefore its attitude can be described as ‘offensive’.
Germany is the Point of Reference
For Poland, the
key issue is its relative voting power vis-à-vis Germany. There have been a
good number of studies on the transparency (or lack thereof) and effectiveness
of the Nice system of voting, coalition-building potentials under the
Constitutional model, the blocking minority principle, etc. However, the Nice
Treaty is in force and none of the fears related to the Nice system of voting have
actually materialised. Still, even if all these aspects are of great importance
for Poland, there is one that is even more important. For Warsaw, the point of
reference in the EU is Berlin, not Brussels, nor other member states, nor
coalition-building potentials, etc.
Germany is the
ultimate point of reference. Under the Treaty of Nice, Germany has 29 votes
while Poland has 27. They are almost equal partners, as Polish votes constitute
93% of the number of German votes. But under the Constitutional model, the only
important factor is population. Germany has around 82 million inhabitants,
while only some 38 million people live in Poland. Therefore, under the
Constitution, Polish votes are equal to 46% of Germany’s votes. In comparison
to Berlin, Warsaw loses more than half of its voting power. It cannot agree to this.
Obviously, the
argument could be reversed. Germany can argue that with a population that is more
than twice as large as Poland’s, the Nice Treaty does not represent its
population correctly. The (Polish) counterargument could be as follows: the
Nice system of voting takes into account the population only to a limited
degree. There is no mathematical formula that could objectively explain the
Nice voting: therefore it is a result of political bargaining.
The Enlargement Package
Some of the top
decision makers in Poland also mention another important argument in the
discussion on the voting rights in the Council. The logic is as follows: enlargement
is a process which includes the Nice Treaty, the 2002 Copenhagen negotiations,
the 2003 Accession Treaty and EU referendum in Poland and, finally, 1 May 2004.
This process has two solid legal documents, which together form an enlargement
package. The current Polish leaders were never excited about the conditions under
which Poland adhered to the Union, with accusations that the 2004 episode was
the cheapest of all enlargements not being absent. Therefore, many see a
balance between a bad Accession Treaty and a good and generous Nice Treaty. Changing
the voting system thus means eliminating one of the best parts of the accession
package which brought Poland into the Union.
Seen from
Warsaw, the Nice Treaty was a great success, not a failure for European
integration. It allowed the 2004 enlargement and it has all the legitimacy of
having being signed and ratified by all member states. Therefore, no one in the
EU-15 should ever expect a Polish politician to admit that Nice was a mistake.
Also, most of the fears relating to the accession of new members in 2004 proved
to be wrong. Yes, the Polish government signed a Constitutional Treaty in late
2004 which changed the voting rules. Yet it did so under massive pressure from
the outside and was met by major opposition in Poland.
With the referendums
in France and the Netherlands and the Polish elections, the year 2005 provided
a new beginning. In Poland, the outgoing government had a feeling of ‘owning’
the Constitution; the new conservative rulers do not and, hence, do not
consider themselves bound by its signing in 2004. They simply claim that the Constitutional
Treaty ‘was dead’. In this context, President Kaczynski’s 2007 decision to base
the negotiations of a new treaty on the text of the Constitutional Treaty was a
big step forward. It means that the current government considers that the Nice
voting system is history but, at the same time, wonders why the Constitutional
provisions should prevail now that the Constitutional Treaty has been rejected.
If the old Treaty is dead and a new Treaty is to be negotiated, this logically implies
the possibility of introducing changes in many new areas, and also in the
Council voting procedure.
The Representativeness Arguments
Somewhere
between the Convention on the future of Europe and the signing of the
Constitutional Treaty a wide consensus arose that the Constitutional voting
model was more democratic and representative than the previous one. Certainly,
the model based on the population principle is far simpler and more
transparent. Yet the new system does not fully solve the representativeness issue.
For example, one may ask why population-based voting better addresses the
democratic deficit, if and when the ‘European peoples’ are represented in the
European Parliament, not in the Council, which represents member states.
To keep a long
discussion short, it seems evident that the Council and voting in the Council should
have some population dimension. Yet the best way of addressing this challenge
remains an open question. Hence the current Polish government’s attempt to put
the question of decision-making mechanisms on the new treaty negotiations’
agenda.
Polish officials
have proposed an alternative to the Constitutional model. The so-called ‘square
root formula’ is not attractive or as transparent as the population census. Yet
the Council proceedings are not about being attractive, they are about power.
As already stated, the Polish government defines its power by referring to
Germany’s power.
The square root
formula is not a new ‘Nice or die’ situation. Polish officials have repeated
that the most important issue in the Polish position is the disagreement with
the Constitutional model. Warsaw wants this model to be changed. What the new
formula should be remains unanswered: it should be a compromise of 27 member
states. The square root is, therefore, a proposal and one of many possible
solutions. It is not, however, a final and definite position to defend –as ‘Nice
or die’ once was–. The proposal also means that the Polish government is trying
to think constructively, not just in an obstructive way. At least, so it
claims.
The Square Root Formula
The term ‘square
root formula’ is a mathematical concept (v), in which the number of votes is
calculated based on the population criterion. The idea dates back to 1946
(Lionel Penrose). In the European integration context, it was first taken up by
the Swedish delegation during the IGC in 2000, and in 2004 by a pair of Polish
mathematicians from Kraków. Square root models (there is more than one) are
more beneficial than the double majority for middle-sized and small states and,
conversely, less advantageous for the larger member states. For countries like
Poland, the square root formula is useful because it reduces its voting gap
with Germany.
Table 1. Voting Powers of EU Member States According to Different Models
|
Nice Treaty |
Square root (v) of
population |
Constitutional Treaty |
|||
Weighting Votes |
% of total |
Votes as if in Nice (v of population*) |
Change from Nice |
In millions (2006) |
% of total |
|
|
29 |
8.4 |
33 (29) |
+4 |
82.4 |
16.7 |
|
29 |
8.4 |
28 (24) |
-1 |
63.0 |
12.8 |
|
29 |
8.4 |
28 (24) |
-1 |
60.4 |
12.3 |
|
29 |
8.4 |
28 (24) |
-1 |
58.8 |
11.9 |
|
27 |
7.8 |
23 (20**) |
-4 |
43.8 |
8.9 |
|
27 |
7.8 |
23 (20) |
-4 |
38.2 |
7.7 |
|
14 |
4.1 |
17 (15) |
+3 |
21.6 |
4.4 |
|
13 |
3.8 |
15 (13) |
+2 |
16.3 |
3.3 |
|
12 |
3.5 |
12 (10) |
0 |
11.1 |
2.3 |
|
12 |
3.5 |
12 (10) |
0 |
10.6 |
2.2 |
|
12 |
3.5 |
12 (10) |
0 |
10.5 |
2.1 |
Czech Rep. |
12 |
3.5 |
12 (10) |
0 |
10.2 |
2.1 |
|
12 |
3.5 |
12 (10) |
0 |
10.1 |
2.0 |
|
10 |
2.9 |
10 (9) |
0 |
9.0 |
1.8 |
|
10 |
2.9 |
10 (9) |
0 |
8.3 |
1.7 |
|
10 |
2.9 |
10 (9) |
0 |
7.7 |
1.6 |
|
7 |
2.0 |
8 (7) |
+1 |
5.4 |
1.1 |
|
7 |
2.0 |
8 (7) |
+1 |
5.4 |
1.1 |
|
7 |
2.0 |
8 (7) |
+1 |
5.3 |
1.1 |
|
7 |
2.0 |
7 (6) |
0 |
4.2 |
0.9 |
|
7 |
2.0 |
7 (6) |
0 |
3.4 |
0.7 |
|
4 |
1.2 |
6 (5) |
+2 |
2.3 |
0.5 |
|
4 |
1.2 |
4 (4) |
0 |
2.0 |
0.4 |
|
4 |
1.2 |
4 (4) |
0 |
1.3 |
0.3 |
|
4 |
1.2 |
3 (3) |
0 |
0.8 |
0.2 |
|
4 |
1.2 |
2 (2) |
-2 |
0.5 |
0.1 |
|
3 |
0.9 |
2 (2) |
-1 |
0.4 |
0.1 |
EU-27 |
345 |
100 |
345 (299) |
|
493.0 |
100 |
(*)
The formula is: votes = v (P/1000)/10, where P is the population of a member
state.
(**)
The calculations based on the population data for 2003 (Eurostat). Had the calculations
been based on 2006 figures,
Source:
the calculations for square root numbers (total of 299) are from Making
The square root
formula has some advantages. First, it is an objective way of determining the
number of votes distributed among member states. Secondly, it is based on the
population criterion. Third, even if this model does not fully address the
question of why a national government should speak for its entire society, it
allows for a certain separation of the politics of power from demographics.
Fourth, it also softens the dramatic transition between the Nice and the
Constitutional models. If the point of reference is Germany, the change from
Nice to the Constitutional model is dramatic. Poland would lose more than half
of its voting power compared with Germany. Any middle-ground solution is
welcome. The square root is one way of solving this problem, yet not the only
one. Any other possible solutions could also be a matter of discussion.
The major
problem related to the Polish position is timing. In the aftermath of the
French and Dutch referendums, the voting issue was never mentioned as something
that needed reconsidering. Other issues were of greater importance: the social
model and economic policies, the position of the Foreign Minister, climate
change, immigration policy and energy security. However, voting in the Council has
only been raised by Poland, supported by the Czech government.
Those who argue
against re-opening voting in the Council say that the Union’s new institutional
setting is a very delicate matter and that the consensus is too fragile. Thus,
they argue, opening the discussion on one front means that the entire
institutional set-up will be once again open for discussion. But this argument
does not stand close scrutiny: some member states are trying to prevent the
Charter of Fundamental Rights from becoming legally binding, other want to
change the ‘Foreign Minister’ label, others want to increase the power of
national parliaments, suppress references to the symbols of the EU or the
primacy of EU law, etc. Why should these claims be allowed to enter the
negotiation agenda and not the Polish ones?
Some people also
argue that Warsaw is not interested in a new treaty, but just wants to postpone
it. True or false, such an argument brings the European debate onto a different
level of accusations based on emotions, not interests. This is the way to
create distrust among European states, which might have far-reaching negative
consequences.
On the other
hand, Polish government officials have stated many times that Poland was
opposed to the Council voting proceedings as described in the Constitutional
Treaty. The potential use of the veto has been mentioned. Clearly, they cannot
support the Constitutional model today without losing political face.
Possible Ways Out
Some Polish
domestic commentators, however, point out that there is room for manoeuvre. First,
some modifications in the Constitutional model are possible. However, this
would require consent from the EU Presidency to re-open the institutional
set-up discussions. This option seems unlikely for two reasons. For the moment,
the Polish government admits it does not want to base new solutions on the
Constitutional model. At the same time, most EU governments do not want to
touch the Constitutional model. Yet since the option is not completely closed,
let us explore it for a moment.
The first
modification possible is to put a limit on the maximum population used by a
member country in Council voting. This would mean that the German population
used in the calculations for the majority would not exceed a given figure, such
as 68 or 72 million. This seems difficult because it would restore the parity
between the biggest EU nations (which was abandoned during the Constitutional
process). Yet it was publicly presented by one of Poland’s top opinion makers on
European issues. Such a decision could have a positive side-effect in the
context of a future Turkish accession.
Another option
is to redefine the blocking minority. Currently, the blocking minority is
formed by at least four states. If this were to be raised to five or six member
states, the Polish position would be stronger. Also, lowering the blocking
minority threshold (from the current 35% to 30%) or, conversely, raising the
population majority threshold (ie, from 65% to 72%) could also satisfy Polish
arguments.
Outside the
voting system, but within the institutional changes, other ideas have recently been
presented: for instance, in return for agreeing to the Constitutional double
majority, Poland would gain a few seats in the European Parliament. Another bargaining
option could be the extension of qualified majority voting (QMV) to certain
areas, such as police and justice cooperation, which Poland opposes.
The second possible
option is a trade-off by which the Polish government drops its opposition to
double majority voting in return for benefits in other areas. This is a
preferable solution for the EU Presidency; therefore it cannot be fully excluded.
At the moment, however, the Polish government rejects the possibility. Still,
what arguments could the EU negotiators use vis-à-vis Poland? Energy security,
even if it is so dear to Warsaw, does not seem to be the right issue because Polish
thinking is that it is in the interests of the entire Union, not only Poland’s,
to have a deeper common energy policy. Therefore, the Polish government will be
reluctant to consider any link between energy issues and double majority voting.
Other potential
concessions to Poland could be found within the fields of regional policy,
enlargement, military capacity and relations with Russia and the US. Despite
its 7.3% GDP growth in the first quarter of 2007, EU funds are vital for Poland.
It will be of great importance for Poland that it remains a key recipient of
European money after 2013 even if the Common Agricultural Policy (CAP) is
modified. As regards enlargement, the Polish Foreign Minister
The ‘Eastern
question’ brings us to closer to Moscow. A unified EU position on Russia, which
would encompass the interests of Poland and of other new member countries, also
offers a certain potential. The recent EU-Russia summit proved that the Union
can be united vis-à-vis Russia to protect a member state’s interests. If this policy
were to continue, it would be very welcome in Warsaw. Therefore, the Polish policy
of ‘keeping the Russians out of Europe’ is certainly an option. Another could
be described as ‘keeping the Americans in Europe’. Hence, a broad pan-European
consensus that transatlantic relations are of primary importance for the EU
would also help to ease Poland’s position on the future of Treaty reform.
Conclusions: It will not be easy to reach a consensus on EU Treaty
reform. If there is to be an agreement, both those who oppose the Constitution
and those who support it have to make concessions. To some degree, the March
2007 Berlin Declaration has already proved that the will, dedication and trust exist.
One thing seems clear: the consensus-building process needs to be de-emotionalised.
The argument that the Constitution is dead and that a new Treaty is thus necessary
now seems to be well established. On the other hand, a majority of member
states have adopted the Constitution; so the new Treaty should not differ from
it too much. Europe’s decision makers need to agree that the basis for
negotiation should be the draft text of the Constitutional Treaty. They should
accept that every member state has the right to put on the agenda the issues it
is concerned about. Then, they should leave the final solution to the dynamics
of negotiation, with a view to allowing a consensus to arise. This is after all
what an Intergovernmental Conference is all about. Doing otherwise would imply
repeating the mistakes of the past, thereby threatening both the satisfactory
conclusion of the Treaty negotiations and the ratification of the resulting
Treaty.
Piotr Maciej Kaczynski
Institute of Public Affairs, Warsaw
[1] Article I-25 - Definition
of qualified majority within the European Council and the Council:
(1) A qualified majority shall be
defined as at least 55 % of the members of the Council, comprising at least
fifteen of them and representing Member States comprising at least 65 % of the
population of the
(2) By way of derogation from
paragraph 1, when the Council does not act on a proposal from the Commission or
from the Union Minister for Foreign Affairs, the qualified majority shall be
defined as at least 72 % of the members of the Council, representing Member
States comprising at least 65 % of the population of the
(3) Paragraphs 1 and 2 shall apply to the European Council when it is acting by a qualified majority.
(4) Within the European Council, its President and the President of the Commission shall not take part in the vote.