Vote and Veto in the European Union: An Analysis of Spain’s Position at the IGC 2003

Theme: On Saturday October 4, the Intergovernmental Conference (IGC) to study the draft Constitutional Treaty drawn up by the European Convention began in Rome. As expected, the question of the system of representation and voting by the member states on the Council of the Union was the main focus of debate and dispute. This analysis examines in detail the position taken by the Spanish government not only in terms of its underlying principles but also with respect to its bargaining strategies and likelihood of success.

Summary: In line with statements made during and after the Convention, the focal point of the Spanish government’s stance on the draft Constitutional Treaty, now being examined by the Intergovernmental Conference, is its rejection of the decision-making rules for the Council as proposed in Article 24 of the draft Constitution. Instead of the double (simple) majority of member states and the (three fifths) majority by population headcount, the government has gone on record on numerous occasions that it will insist on preserving the agreements reached in Nice as a matter of principle.

This analysis looks at the Spanish position from three standpoints: first, with regard to the logic of the arguments employed by Madrid; second, what options, if any, are available; and, third, the validity of its negotiating strategy and its likely consequences. Three conclusions are drawn: first, that the strategy of sticking to Nice is unlikely to bear fruit; second, that the draft drawn up by the Convention gives too much blocking power to the large states and should be improved; and third, that in terms of Madrid’s negotiating strategy, there is a contradiction between its public criticism of the Convention’s proposals, which argues that if followed, the future of the Union would lie in the hands of the most densely populated states, and the messages and signals that the Spanish government is giving out behind closed doors, insinuating that it would accept the Convention proposals provided they reduced the headcount threshold required for a veto, meaning that Spain would preserve that same status of a large country it obtained in Nice. As explained below, accepting an agreement on this basis would mean strengthening the power not only of Spain, but of all the large countries, particularly that of France and Germany, at the same time as contradicting the arguments that Madrid is using as justification for its stance.

Analysis: Nice, a bridge too far

In Nice Spain achieved large-country status. This was an historic achievement, considering that when it joined what was then the European Community in 1986 Spain, given its weak negotiating position and its much lower population than those of the largest European countries, obtained only eight votes as opposed to the ten held by the four large nations. The success of Nice was due to two factors. On the one hand, it was the result of the government’s nimble negotiating, in turning into hard and fast votes the undertakings obtained during the negotiations on the Treaty of Amsterdam three years earlier. On the other, however, it was also a consequence of the stubbornness of President Chirac who, by rejecting out of hand any system of votes that left France with fewer than Germany, began a chain effect from which Spain benefited most.

The problem with Nice was that it further complicated an already highly intricate system of voting. Votes are on the one hand based on population: large countries have 29 or 27 votes, medium-sized countries between 14 and 10 and small countries between 7 and 3. At the same time, a deciding rule set a qualified majority at 72% of these votes. But, in addition, it was demanded that Council decisions also enjoy the support of a simple majority of countries (14 out of an EU of 27), representing at least 62% of Europe’s total population.

What does this proliferation of conditions and thresholds that Spain wants to preserve at all costs consist of? Very little in practice, as all the studies of the decision-making rules approved in Nice show that the triple threshold (72% of votes, 51% of states and 62% of population) has no practical value, as the 72% requirement cancels out the other two. Aside from the technical difficulties of the Treaty of Nice (remember that the votes failed to match; the thresholds did not square with the votes, etc.) and the issue of legitimacy (the criteria on which votes were assigned are neither public nor equitable on any easily recognisable principle), the main problem with Nice is that Spain paid a high price for safeguarding its national clout. One of the purposes of Nice was to correct the over-representation of the smallest countries in favour of the large ones; it was also designed, however, to improve efficient decision-making in an enlarged Union. However, once again, all the technical studies show that Nice only succeeded in slowing down the taking of decisions in an enlarged Europe.

Although Spain may be proud of what it achieved in Nice, from the standpoint of broader European interests the Treaty only served to underline the fact that entrusting member states with the defence of collective Union interests plus, at the same time, their own, tilts the balance in favour of safeguarding national interests. Thus arose the decision to set up a two-handed process: first a Convention to cater for general interests, followed immediately afterwards by an Intergovernmental Conference in which the states can defend their national interests, but in the context of the general interest. We now face, therefore, a substantially different scenario from that of Nice. Thanks to the methods followed by the Convention it will be very difficult for Spain to defend its national interests without, at the same time, justifying how and to what extent these interests further the wider European interest.

The Convention

Although it had only a generic mandate for institutional matters, the Convention could hardly offer Europeans a draft Constitution that failed to deal with such a crucial issue as votes on the Council, particularly when the system approved in Nice left so much to be desired in terms of efficiency and democratic legitimacy. The technical basis for the voting system proposed by the Convention and now being discussed by the IGC resides in establishing the rule of a double threshold of states and population. Council decisions can only be adopted if there is a majority of states (half plus one) in favour and a majority of the population (three fifths or 60%). In political terms, the key to the formula proposed by the Convention is that France is agreeing to sacrifice its formal parity on votes with Germany, particularly now, as Giscard d’Estaing made crystal clear, when it realises that the price for maintaining parity is to give Spain the same weight as France. Now the die is cast. France cannot now go back on its word, which is the result of a firm undertaking by France and Germany to act in harness in European affairs, in such a way that Germany will not vote against France on an issue France considers of vital national interest and vice versa.

True, the proposal came late in the day, was the subject of little formal discussion, and was soon given a very cool reception by a large number of countries. Those who reject the sanctification of the Convention formula and call for further negotiation are quite right to do so. In the process, it would also be in the general interest to negotiate all the institutional matters in a block, given that the Franco-German formula adopted can clearly be improved upon. That said, Spain’s difficulty in trying to restore the status obtained in Nice resides not only in the immobility of the Franco-German pact but in technical matters than cannot be simply swept aside.

The main virtue of the double-majority rule is its flexibility. It allows the majority to express itself in various ways (simple or 51%, but also by means of ‘super majorities’ of three fifths, two thirds, five sevenths, three quarters, etc). It also allows both decision-making thresholds (number of countries and headcount) to be established as equal or, as adopted, geared (simple majority of countries but population majority of three fifths). The Rome formula is not, therefore, as Nice was, a rigid imposition in which the relation between population and votes is unclear. It allows all proposals to be readily weighed up in terms of visible percentages. For example, the smaller states, which defend the principle of one state one vote, prefer a headcount threshold nearer 51%, whereas the large countries want a higher population threshold which gives them a greater chance of being able to veto a proposal. That said, the system could also allow the smaller countries significant advantages by raising to three fifths or five sevenths the number of countries needed to approve a measure, meaning that instead of 14 states being necessary, it could be vetoed by eleven (in the first case) or nine (in the second), regardless of the size of the countries concerned. Clearly, the flexibility of the system in accommodating all kinds of proposals makes it difficult for governments such as Spain’s, which denies that its interests can be satisfied within the system and argues for a return to Nice as a matter of principle. Inevitably, Spain will have to transfer its preferences to one or other of the percentages that come within the scope of the new arrangement. The problem is that when it reconciles itself to the new situation, the percentages it proposes ought to match the arguments it has publicly defended in the last few months. What arguments are they?

Good and bad, tactical and strategic arguments

The most important lesson learned in Nice, vis-à-vis the present Intergovernmental Conference, was how effective an adequate combination of two elements could be: negotiating skill and sound arguments. In Nice negotiating skill was demonstrated in the painstaking work of Spanish diplomats over a number of years in establishing the political, legal and moral grounds on which Spain could be regarded as a major country. It placed Spain in an ideal position when, once the Nice talks began, its arguments carried the day. Thus, Spain was able to argue that if France, with 24 million inhabitants fewer than Germany, claimed parity with Germany, then Spain, with 20 million fewer than France, could claim parity with France. That diplomatic triumph stands in stark contrast to the present Intergovernmental Conference in which Spain starts out from a position of weakness, having had no part in the design of the decision-making rules now under discussion and, to make matters worse, its arguments, though correct from the point of view of its national interest, are hardly compatible with those of the other member states (with the sole exception of Poland) or with the collective interest of the Union as a whole.

With respect to the arguments themselves, it is interesting to note that on a question of such major importance for Spain and its future in the European Union, the government has not published a single document explaining what its negotiating position is and what arguments, expectations or calculations it uses to justify it. Nor has it said to what extent this really affects Spaniards and their future. This is doubly surprising when we remember that Spain made the voting issue the key to its diplomatic efforts at the conference, and was also fully aware that the draft Constitution will be submitted to a referendum at some time in the coming months. Instead of producing a White Paper on the draft Constitution and on its policy in the enlarged Union, as the United Kingdom did, here in Spain the population saw daily bits and pieces of a negotiating stance that appeared to be fragmentary and sometimes clearly contradictory. In the absence of a public statement worthy of the name, we can try to reconstruct the Spanish position in the following terms, taken from the assortment of arguments offered by the prime minister and the foreign minister in various statements made in the Congress of Deputies over the past few months.

At centre stage are the arguments questioning the authority of the Convention to change the system adopted in Nice: that authority or mandate is described as ‘preparatory, not “revocatory”’. Madrid also questions the appropriateness of changing the rules of the game when they have just been ratified by the fifteen member states and the candidate countries: ‘the political consensus permitting enlargement was Nice’. Its formal arguments are these: ‘Nice is in force and the Convention is not; Spain is not vetoing anything, it is up to the rest of the countries to convince Spain that the new system is an improvement’, ie, a strong hint that its partners should make an effort to accommodate Spain within the new system. The usefulness of such arguments is purely tactical, designed to strengthen Spain’s negotiating position. In other words, they are employed in order to raise the price at which Spain would be prepared to sacrifice Nice, but they do not close the door on Spain making such a sacrifice. Even if the Convention did not have a proper mandate, the Intergovernmental Conference is well within its rights in adopting a new voting system, in establishing a political consensus on a different formula and asking national parliaments and their respective populations to enact this as law. Spain’s arguments, therefore, are of no substance.

There are other arguments which are difficult to categorise beyond saying that they are unfortunate, technically mistaken and, to say the least, problematic from a political point of view. One such is the constant claim that the system adopted in Nice is efficient. Nearly all the technical studies available demonstrate that the dual majority now under discussion considerably increases the number of winning coalitions when compared with Nice. This is due the fact that the most efficient system is a simple majority. Given that the double majority stipulated in the draft Constitution (60%), is lower than the 72% set by Nice, the system is by its very nature more efficient. Thus, although countries are perfectly within their rights to defend high decision-making thresholds (‘super majorities’), it is pointless trying to hide the fact that the most efficient, and according to some authorities the fairest system is that of a simple majority in which the same coalition of countries can approve as can veto a proposal. Another dubious general argument is the rejection of the introduction of headcounts on the grounds that this is a new principle or one that is difficult to implement objectively given the problems of knowing exactly what the population of a given country is at any given moment in time. This is surprising as the Treaty of Nice itself, ratified by Spain, approved a clause recognising headcount voting and setting a threshold of 62% (higher, in fact, than that contemplated by the Convention), such that any member state can call for a check to be made as to whether a Council decision is representative of at least 62% of the population before it is approved. Furthermore, in 1994 Spain also supported the Ioannina Compromise under which countries which together amounted to more than 100 million inhabitants could call for a second reading of a decision before it went through. Even more difficult to justify are the constant appeals to the size of the Turkish population as a reason for rejecting population weighting, an argument which contributes nothing to the debate, stirs up bad blood, of which there is more than enough already, towards Turkey and is in frank contradiction with the support Spain expresses for the candidacy of this country for membership.

Finally, there are a number of substantive issues which deserve closer attention. The main one focuses its criticism of the proposal contained in the draft Constitution on the fact that the introduction of a strictly proportional headcount upsets the historic balance between large, medium and small countries, giving the large countries a disproportional weight in terms of vetoing capacity. This argument is without doubt well founded given that the technical studies show that the double-majority concept now under discussion enhances the proportion of power obtained by the large countries considerably. In reality this is the key to the tactic adopted by Giscard d’Estaing in the Convention: he adopted the double majority argument which the Commission and some of the smaller countries argued for unsuccessfully in Nice, but in such a way as to guarantee that the Franco-German axis, thanks to its combined weighting of population and the degree of mutual understanding between the two countries, obtained a dominant position in the enlarged Union. France agreed to be a second-ranking large country, together with Italy and the United Kingdom, in comparison with Germany while in exchange reducing the category of Spain and Poland from first- to third-rank members.

There can be no denying that as far as Spain’s interests are concerned, the substantial difference between Nice and the Convention is that, under Nice, no coalition of three large countries could automatically assemble a vetoing minority, whereas under the Convention we have the dual phenomenon by which three large countries, provided one of them is Germany, can, by virtue of comprising more than 40% of the population –the new threshold– block any proposal, whereas Spain and Poland do not have sufficient population to form part of such a veto-wielding trio. The problem is that, paradoxically, the compromises that Spain is showing itself willing to make at the IGC are diametrically opposed to the arguments that the Spanish government has itself put forward.

‘The Spanish Prisoner’

Spain’s core position is that the European Union is not a democracy, but a ‘demoi-cracy’, ie, a union of States and their citizens which requires a high degree of respect for national peculiarities and identities, the most inclusive rulemaking system possible and strict observance of the rights of minorities. All this leads to the need for multiple veto rights and qualified or ‘super-majorities’ in the decision-making process, which is where member states are represented, in order to prevent the Union falling into the hands of a small number of large states (three).

Clearly, the system showing most respect for the equality of peoples and the sovereignty of states would be one governed by the principle of one state/one vote, regardless of its population, and at the same time by raising the decision-making threshold to, for example, three quarters to guarantee that every decision approved by the Union had the backing of at least 75% of the states. The problem is that such a system, given the huge differences in population within the Union, would mean that the twenty smallest states could push through a decision opposed by the seven most populated states, containing almost 75% of the population. This example goes to show that there is a need to introduce some population criterion in the Council’s decision-making processes, even though this institution represents the states. Exactly what criterion, however, the example does not indicate.

In any constituent process the selection of weighting criteria and their incorporation within the decision-making process should be conducted on the basis of a generally recognised principle: tailoring constitutions or decision-making processes to suit one’s own requirements is always a temptation, but history shows that such egoistic arguments always come to the surface and are unlikely to prevail. Thus, the rules of the game should be governed by the general interest, not that of one or other of the players. Here in Spain, the Popular Party and the Socialist Party rightly oppose the reform of the election system in the Basque Country to over-represent the rural communities, where the Basque Nationalist Party is dominant, in comparison with urban environments, where the constitutionalist parties hold sway. In the same way, the Junior Minister for Foreign Affairs, in defining Spain’s position on the reform of the UN Security Council, said that ‘increasing the number of permanent members is both anti-democratic and profoundly inefficient. […]  The countries seeking a permanent seat are not really interested in the Council working, only in guaranteeing greater scope for their own national power. That is not our path.’

What, in that case, is Spain’s path? If we abandon Nice, what combination of thresholds should Spain defend? Is there a combination which satisfies both our national interests and, at the same time, a good part of those of the Union? Given that the system proposed by the Convention excludes Spain from the inner circle of the large states, Spain has a natural desire and obligation to attempt to recover its share of power. The difficulty is that the solution to its problem is by no means clear. Raising the veto threshold to, for example, three fifths or two thirds, or even three quarters, would make it easier for Spain to form part of a coalition of large countries capable of blocking any initiative. The difficulty here is that while the proportional criterion predominates, any concession Spain makes in its attempt to raise the threshold will in fact contribute to strengthening the weight of those same large states.

To explain this from another angle, given that France and Germany together account for 29.3% of the Union’s population, any raising of the decision-making threshold in terms of population to higher than 70% would give France and Germany an automatic right of veto on any decision. Given that that threshold is currently at 60%, Spain’s margin for manoeuvre in this respect is very narrow. For Spain to begin to count as one of the large countries, the threshold must go up. Higher than 62%, Spain could block a decision together with two other large states provided one of them was Germany, but if it wanted to veto a decision with a coalition of two of the four large states (for example, with the United Kingdom and Italy), it would have to raise the threshold to 67%. Lastly, if it wanted to veto with two other large countries, one of them being Poland (United Kingdom, Spain and Poland), it would have to raise the threshold to 71%. But with each rise in the threshold Spain would strengthen the combined possibilities of France and Germany. France, Germany and the Benelux countries, which normally see eye to eye, account for 37% of the Union’s population, meaning that a Spanish proposal to raise the threshold to 65% of the population (with veto rights for 35%) could, much to Spain’s surprise, be swiftly conceded by France and Germany.

What then is the way out after the comings and goings to which we have been subjected by Giscard and Chirac? The simplest option is to raise the population threshold and resign ourselves to the consequences. The problem with this is, as indicated earlier, the situation created in Nice has been reversed in such a way that France can now pay us back in kind: if we maintain the double majority and at the same time insist on increasing our power within the system, we will only do so at the cost of increasing the power of France and of besmirching our undertakings to the smaller countries and our standard-bearing in favour of an all-embracing ‘demoi-cracy’. It would be difficult to convince people that our stand on principle against over-representation of the large countries and the tendency for ‘Directories’ to develop therefrom, could be overcome provided we, too, were regarded as a large country and a member by right of the vilified Directory. People would say quite rightly that the Directories Spain is excluded from are bad but those we are allowed into are good.

The alternative would be to argue for lowering the threshold from 60% to 51%, thus establishing a double simple majority (states and population). This proposal, first put forward by the Commission in Nice, is the simplest and most efficient and it has the added advantage of reducing the power of the large states and increasing that of the medium and small states. It would make for a much more fluid Union, in which permanent coalitions would be much harder to establish and it would open the way for both the Commission and the Parliament to play increasingly important roles, as well as strengthen European political parties. However, such a position would be doubly difficult for the European policy of the present government: first, because it would reduce the weight of the Council within the institutional framework and, thus the role of governments in the process of constructing Europe; and, secondly, it would reduce Spain’s weight within the decision-making process of the Council itself. In exchange, the only palpable benefit would have been to contribute decisively to reducing the power of the major countries, including the substantial weakening of any Directory of countries based on the Franco-German axis. It is not surprising that the government refuses to choose between making room for itself in the Franco-German axis at the cost of strengthening it and blow away its own power in the hope of bringing down with it that of the large countries which refused to accept Spain as an equal. However, little though we may like it, this dilemma is a perennial one in the enlarged Union, of which the IGC is just the first taste, and in which Spain will have no more than 8% of the population. Hence, it would be as well to start thinking about Spain’s position in an enlarged Union not as a series of battles –today the IGC, tomorrow the budget–, but rather with a perspective of general principles, long-term interests and stable coalitions.

Conclusion: success or failure?

A few months ago, the Spanish government dismissed the results achieved by the Convention with the clear warning that it would not accept any revision of the agreements reached in Nice on the system of voting in the Council. As opposed to the proposal by the Convention that all Council decisions should obtain a double (simple) majority of states which in turn represented a majority of three fifths or 60% of the population, the Spanish government has argued publicly and repeatedly that: first, Nice stands for the political consensus that allowed the enlargement to happen and that it had only recently been ratified by all the member and candidate states and, on that basis, should be respected; secondly, and more substantively, that the rules proposed in the draft Constitution now under discussion in the IGC signified a fundamental shift in favour of the large countries from the historic balance between large and medium countries, meaning that, if adopted, it would leave the Union in the hands of the large states. Thus, the Foreign Minister said to the Corriere della Sera that ‘Spain’s position was not based on tactical issues but on questions of principle in the defence of the interests of the Union, as well as national interests’. In the same way, less than a month ago, on September 30, the official Hispano-Polish communiqué said that the system put forward by the Convention ‘is harmful to the Union as it does away in practice with the fundamental balance between states that has always existed in the Council of the Union. […] Acceptance of the proposal,’ continued the official release, ‘would lead to the impoverishment of the Union and would radically reduce the weight of the less populated states and thus the influence of the majority of the states of the Union’.

Today, however, to judge by the first negotiating skirmishes at the outset on October 4 of the Intergovernmental Conference to examine the draft European Constitution, the message that Spain now seems to be sending to its partners is that ‘Spain is radically opposed to any trend towards Europe operating as a Directory of large countries… unless, that is, Spain is one of them’. Technically, this will be formulated as a percentage (two thirds, or even three sevenths) but in essence any decision that raised the decision-making threshold above the 60% proposed by the Convention, reducing to one third or two sevenths the percentage of population of any group of countries wishing to block a proposal would not only increase the power of Spain, but also that of France, Germany, the United Kingdom and Italy. Obviously it is for this reason, and not for any negotiating skill on Spain’s part that our larger partners may well be interested in raising the threshold and thus ending the discussion.

In this way Spain would, in a relatively brief period of time, have passed from grandiloquent declarations of principle to a much more selfish approach based exclusively on maximising its own vetoing powers and showing surprising unconcern for the defence to the last of the principles it says it defends and be willing to accept a compromise solution which, within the system proposed by the Convention, safeguards its own decision-making powers.

Success or failure? What is the balance for Spain?. On the credit side, the government can claim with some satisfaction, and with just cause, that thanks to its negotiating skill the system of voting proposed by the Convention, which ran counter to Spain’s interests, had been adapted to guarantee that Spain maintains the status of a large country achieved in Nice. As the saying goes, all’s well that ends well. On the debit side, however, the government may have let in two own goals of a certain importance. In the first place it would have contributed to emphasising the over-representation of the large countries at the expense of the smaller ones, thereby reneging on its former proclamations in favour of a balance between large and not-so-large, its gestures in favour of the not-so-large and, to boot, its criticisms of the strictly proportional weighing on population on the Council. The smaller countries would have been right not to trust Spain, preferring to negotiate their own presence on the Commission than run the risk of accepting a strategy such as that of Spain, which would have looked false from the first day onwards. Secondly, it may have contributed to reducing the efficiency of the decision-making process in the European Union, given that, technically speaking, the most efficient system is that which most closely resembles a simple majority and not one, as the government now favours, in which the majority is most carefully hamstrung.

The obvious question is whether such a result can still be obtained, even today, with a minimum of fuss and at the lowest cost. Strange to say, until recently the government opted not to employ its most substantive argument in opposition to the new proposal: the clear and simple fact that the new voting system reduces Spain’s power in relation to the other large countries, thus tossing to the winds the very satisfactory results obtained by Spain in Nice, where to all intents and purposes, it achieved the status of a large country. Instead of using the usual diplomatic channels during the course of the Convention, as was very well done during the negotiations on the Treaty of Amsterdam, to convey the message to the four large countries that the new formula would be acceptable to Spain provided its (and, in this case, Poland’s) particular problem was solved, the Spanish government has proclaimed its interests to all and sundry as a matter of principle, only to negotiate them behind the scenes in a highly pragmatic fashion.

To describe this performance as ‘strategic’ is a bit much. From a gameplay standpoint, it may have been based on the belief –right or wrong, that is not the issue– that the best ploy is first to trumpet the importance of the matter; second, fortify one’s negotiating position by threats of a veto; and, third, make such threats credible by dint of symbols and rhetoric; all in the interests of raising the price to be paid by the opponent to obtain our agreement. However, such a play could also betray a position of weakness or miscalculation: in common parlance, the bluff failed and the other players have chosen to allow Spain an easy way out. Aside from any other evaluation, it is clear that in these negotiations our interests did not match the principles we claimed to defend nor did our principles tally with our interests. The fault may be ours or that of the enlarged Union, but it would be as well to give the matter some careful thought.

Comparison of Council Voting Systems

José Ignacio Torreblanca

UNED