Who’s afraid of the Convention?

Subject: The plan put forward by the Praesidium of the European Convention to redefine the qualified majority used in the Council in terms of population size means reopening the most conflictive and problematic aspect of the Treaty of Nice. If eventually adopted, the proposal will undo the very positive result Spain obtained in the negotiation of that treaty and, in consequence, the expectations our country had come to cherish of its institutional role in the enlarged Union.

Summary: The proposal of the Praesidium of the European Convention to redefine the qualified majority in the European Council with respect to population size means reopening the most conflictive and problematic aspect of the Treaty of Nice. If eventually adopted, the proposal will undo the very positive result Spain obtained in the negotiation of that treaty and, in consequence, the expectations our country had come to cherish of its institutional role in the enlarged Union. Concerned lest the Convention erases at one fell stroke the large-country status that Spain had obtained in Nice, albeit more de facto than de iure, the Spanish government has hinted it may well veto the final text if the Convention sticks to the present wording of the proposed Article 17. This analysis examines the Convention’s proposal, the options open to the Spanish government and, on a broader front, the possibility of improving Spain’s negotiating powers on major issues confronting Europe.

Analysis: The Convention proposals
Last 23 April, the Praesidium of the Convention published its draft for Title IV, concerned with institutional matters, of the planned Constitutional Treaty. This project, which bears the unmistakable stamp of the Convention President, Valéry Giscard d’Estaing, has raised a considerable stir: first, among the member States themselves, given the quite justifiable complaints of smaller States that the text favours their larger neighbours; secondly, among the institutions of the Union, particularly the European Commission, which has strongly criticised Giscard’s proposal on the grounds that it strengthens the European Council, while keeping the Commission  on a tight rein in the grip of the member States. Regardless of the proposals and counterproposals being bandied about from both sides, Title IV as proposed by Giscard makes it clear that he does not regard his role as a that of a simple broker for member States and the EU institutions, but as an autonomous player entitled to his own preferences.

An indirect result of this row between large and small States and between the Presidents of the Convention and the Commission was the fact that Article 17.3 of the project, which contains a new definition of qualified majorities in the Council of Ministers, has passed by almost unnoticed. The article in question proposes the following formula: “when the European Council takes decisions by qualified majority, such a majority shall consist of a majority of member States, representing at least three fifths of the population of the Union.”

The article introduces two substantive changes to the present system. The first refers to the allocation of votes in the Council which, instead of being derived from the previous implicit division into large, medium and small States, is now strictly proportional to the population of each member State. The second change has to do with lowering the threshold of a qualified majority from the previous 71% to the proposed 60%. The combination of both changes is a radical departure: if Article 17.3 is adopted, Council decisions will require the support of half plus one of the member States of the Union and of 60% of Europeans. Thus, when adopting Council decisions, a dual-list system will be used: in List A, each State will have one vote; in List B, each State will have as many votes as its percentage of the European population. Germany, for example, will have the same number of votes as Luxembourg in List A, but in List B it will have 170 votes (corresponding to 17.0% of the EU population) compared with only 82 votes for Spain (corresponding to Spain’s 8.2% of the population), etc. (see Table 1).

In a European Union of 27 members, this will mean that any coalition of 13 member States comprising 41% of the population can establish a minority veto. The merits and demerits of the new system can be studied from two complementary angles: that of Europe in general and that of Spain in particular. This is what the following two sections proceed to do.

Consequences for the European Union
It is common knowledge that the European Union has suffered for a long time from major problems of effectiveness and democratic legitimacy. This is particularly the case in issues relating to institutional reforms. The Treaty of Amsterdam (1998) proved incapable of reforming the institutions to cater for a future enlargement, with the results that a new treaty had to be devised to deal with the problem. However, the new treaty, that of Nice (2002), was equally unable to solve the matter. On the contrary, the all-night negotiations in Nice on how votes in the Council of Ministers were to be distributed, amid impromptu arguments, veiled and blatant threats, percentages that did not add up and a host of perfectly arbitrary discriminations, achieved nothing but draw attention to the seriousness of the problems facing the Union. Although Nice established a system of vote distribution that was better geared to the population of each member State, it is revealing that nowhere in the Treaties is it possible to find the formula that turns population headcount into votes. From the results of Nice, we see that France, Italy and the United Kingdom, with 23 million inhabitants fewer, ends up with the same number of votes as Germany, while Spain, with only half the population of Germany, had only two votes fewer; and the Benelux countries, with only 26 million inhabitants between them, have together as many votes (29) as a major country. The fact is that either as a result of decisions inherited from the past (such as the votes obtained by the Benelux countries) or as a consequence of skilful negotiating (as with Spain), the way votes are allocated in the Council of Ministers is both opaque and discriminatory, failing to comply with the minimum demands of democratic legitimacy.

The present system is undemocratic. It is also inefficient. In fact, all the quantitative analyses of the reforms contained in the Treaty of Nice, whatever the approach adopted, reveal that the formula falls a long way short of improving the decision-making process of the Union. This is because Nice failed to change the basic parameters of the system it set out to reform: it moderated the previous over-representation of the smallest States, but kept the decision-making threshold of 71% intact (in actual fact, it raised it fractionally), and also introduced a third criterion or safety net with respect to the population represented by approved decisions (a floor of 62%).

In reality, the only proposal presented at Nice that might have reconciled democratic legitimacy and effectiveness was the one that was not approved. According to the ‘dual list’proposal put forward by the European Commission, the States would vote on one list drawn up on the principle of ‘one State, one vote’ and another list drawn up in terms of percentage of total population, the idea being that all decisions adopted by the Union are doubly legitimised by having been approved by both a majority of States and a majority of Europeans.

Today we see an almost identical proposal (Article 17.3) put forward by the Praesidium of the European Convention. It is a proposal which satisfies the wish of the large countries for population numbers to be taken into account and, at the same time, the wish of the smaller countries to uphold the principle of equality among States. In an EU of 27 countries, Germany, together with any combination of two of the three large countries (France, the United Kingdom and Italy) could form a blocking minority, but the six largest countries would need the support of at least seven medium-sized or small countries to approve a measure. Oddly enough, the new system maintains the former criteria in EU voting: that the big States can veto an issue, but cannot impose measures on the medium-sized or smaller States.

In this way, the system is effective, as it reduces the decision-making threshold from 71% to 60%. This is not as effective as reducing the threshold to 51%, but it increases significantly the number of possible winning combinations. It also complies with the condition of democratic legitimacy, by being transparent, non-discriminatory and predictable. Also, it should not be forgotten that the proposed system will resolve once and for all the issue of the distribution of votes and voting rules: any future member of the Union will know before joining what its institutional weighting in the EU will be, while at the same time the EU will no longer find itself having to renegotiate voting rights for all each time there is an enlargement. Lastly, if adopted, the system will cope just as well with an EU of 25 members as it will with one of 35. There are therefore sound reasons for supporting draft Article 17.3.

Consequences for Spain
Without doubt, Article 17.3 is good for Europe. Is it good for Spain? The government appears to think not, as Spain’s representative on the Convention, Foreign Minister Ana Palacio, proposed suppressing the article in question and restoring Article 205 (containing the modifications agreed on in the Protocol attached to the enlargement contemplated in the Treaty of Nice and in the Treaty of Accession signed by the candidate countries on 16 April 2003 in Athens). “My country,” warned Ana Palacio, “cannot accept modification of the Nice agreements to be made at this level.” In diplomatic language, that amounts to a threat of veto.

The argument employed by the Spanish government is impeccable. On one hand, it says, the Convention has received no mandate to meddle here, a fact that the Praesidium itself admits in its introductory note. On the other, Madrid insists that the whole purpose of Nice was to reach an agreement on the distribution of votes (among other matters) in an enlarged Union, and that the decisions taken there were subsequently ratified in Copenhagen and Athens in December 2002 and April 2003, before being incorporated in the Treaties of Accession, making it pointless to go over this ground once again. However, the Spanish government may well find that these arguments are insufficient. How come? Because both or them are opportunistic, based on vested interests, while the opposing standpoint in favour of Article 17.3 is founded on the principle of effectiveness, which is difficult to oppose, and/or broad normative issues such as democratic legitimacy, equally hard to rebut. Given that when it comes to reform ‘opportunity’ is clearly a weaker criterion than that of effectiveness or democratic legitimacy, it looks pretty clear that our ‘official’ reasons will get short shrift.

That said, there is in fact a third factor which noticeably weakens the Spanish negotiating position and this is that, thanks to its bargaining skills, Spain managed at Nice to be the only large country with almost proportional representation in the Council in terms of votes. Whereas Germany obtained, with its17% of the EU population, only 7.8% of the voting rights on the Council (29 out of 345), Spain, with 8.2% of the population, got 7.8% of the votes (27 out of 345). Thus, when it comes to negotiating Article 17.3, Spain will be unable to avoid wriggling out of the argument that it is denying the other large countries what it has already obtained for itself. Worse still, given that Article 17.3 provides for strict proportionality in terms of population, according to the proposal of the Praesidium, Spain’s voting quota will go up from the present 7.8% to 8.2%. The problem for Spain is that it improves its absolute position but loses ground in relative terms. Obviously, justifying why we oppose a proposal that is more equitable than the status quo will be no mean feat.

A fourth reason why Spain should not oppose this proposal is that rejection of the formula for reaching qualified majorities will entail a confrontation with the large countries, which are those set to benefit most from the system proposed. The large States, of which Spain aspires to be one, will accuse it of lack of solidarity for refusing to allow them to improve their representation. Spain’s veiled veto threat also contradicts its previous position in which, together with the United Kingdom, in Ioannina in 1994 it was one of the two countries which argued in favour of making population one of the main weighting factors in EU decision-making. It looks clear that Spain, one of the pioneers in promoting the population factor, and a country that has habitually behaved as a large country in practically all EU affairs (not just on institutional issues), cannot now ally itself with the smaller countries in an attempt to block the reform.

Finally, a fifth reason why Spain should rethink its approach to the proposal at issue is that its effects in terms of Spain’s relative power will probably not be as dire as may be thought. It is said that the reform favours Germany, but Germany will always require the consent of two of the large States (France, Italy or the United Kingdom) to block a measure, meaning that the political complexion of the government in Rome could be critical for Germany. However, it is equally evident that the United Kingdom, Italy, Spain and Poland (a not improbable coalition in the light of recent events) will together account for 40% of the European population.

Conclusion: the final phase of the European Convention has presented Spain with a difficult choice: in proposing a redefinition of qualified majorities, Spain stands to lose what it obtained in the Treaty of Nice. Spain thus finds it very difficult to accept the proposed Article 17.3, fearing the loss of the advantages won in Nice. However, if Spain alone vetoes the Convention text, it will be out on a limb, look very selfish and come under strong pressure to come round to the general view. If it then gives way, having threatened a veto, it will be doubly damned. In fact, Article 17.3 offers many possibilities of gaining ground; it is good for the EU as a whole; good for the large countries; and, to a certain extent, for the smaller ones, too. From Spain’s standpoint, the arguments against, though valid, are too opportunistic and self-seeking to resist the foreseeable onslaught, in which Spain would have very little collateral damage with which to justify its opposition. We also point out that opposition to the article could also fly in the face of Spain’s unabashed desire to be regarded as one of the large countries of Europe.

By way of conclusion, it is worthwhile extracting another more general lesson with regard to Spain’s European policies. It is clear that in EU negotiations those countries that manage to make the case for national interests on the basis of wider general concerns are on surer ground than those which argue solely from domestic standpoints. A general principle, such as the greater effectiveness of proportional representation, can achieve the same national goals at reduced cost and, also, promote the interests of Europe as a whole. On the contrary, a national interest which refused to truck with general principles inevitably leads no further than the status quo when there is no agreement and a veto is used, or when one national interest is exchanged for another in a simple deal. The countries which adopt the former approach tend to win out in the long term and lose in the short, because the system, seen globally, is consistent with their interests but forces them to accept temporary disadvantages to keep it afloat. On the other hand, the countries that go for the alternative strategy often gain immediate advantages from exploiting the benefits to be obtained from unanimity and the costs of disrupting the status quo, but lose out in the long run as their interests become under-represented by the general principles on which the system operates.

Coinciding with the end of the preliminary work by the Convention, a debate has arisen over the true mandate of the Convention and the limits to which it should be bound, as well as on the forthcoming intergovernmental conference which, in the light of the Convention’s findings, is faced with the task of reforming the treaties. Here, two approaches can be readily distinguished. For some, the Convention is no more than a tool of the member States, sole depositories of democratic legitimacy and, by extension, endowed with the ability to reform the treaties; for others, the Convention is amply justified, not only by the broad basis of its composition but also by the quality of its work, and is thereby perfectly empowered to present a draft constitution which goes beyond the lowest common denominator of member State preferences. Here, as elsewhere, it is sound advice to avoid extreme postures. The Convention is a good example of a design of general principles on which the Union can operate, something that goes some way beyond the usual product of intergovernmental conferences, where national interests cannot be pursued without being suitably cloaked in general principles. So, if the Convention is not something to be feared, it would be as well to define what general principles of institutional functionality we seek (effectiveness, transparency, proportionality, idiosyncrasies, etc.) and how, by their adoption, we can best defend our own particular interests. We can thus champion constructive proposals which, simultaneously, allow us an opportunity to maximise national interest, thereby avoiding the need to focus on last-ditch defences designed to limit damage.

Table 1: Comparison of the system for allocating votes in the European Council (pre-Nice, Nice and the system proposed by the Praesidium). EU-27.

José Ignacio Torreblanca
Lecturer at the UNED (Open University) and freelance analyst for the Real Instituto Elcano