Select Committee on European Union Eleventh Report



57. The majority of decisions within the EU are already taken by Qualified Majority Voting (QMV). The Government's White Paper notes that 80 per cent of Council legislation adopted in 1996 was already under a legal base subject to QMV[23]. The Conference is examining whether the 73 Treaty Articles and Sub-Articles where unanimity is the rule will move to QMV. They range from issues such as the appointment of the Council Secretary General or judges to the ECJ to decisions on Treaty change and the size of the Union itself.

58. The PPR states that the use of QMV "gives impetus to the negotiating process by promoting compromise and ultimately making for easier decision taking. It is generally accepted that, given the increased number of Member States after the next enlargement, there is cause for examining possible extension of qualified voting to forestall possible blockages, particularly in areas which are essential to the proper operation of the Union"; (PPR, p 25). In a Declaration annexed to the Amsterdam Treaty, Belgium, France and Italy expressed the view that a significant extension of recourse to qualified majority voting was an indispensable condition for the conclusion of the first accession negotiations.

59. Some Member States, notably France and Germany, believe that QMV should be the rule, and unanimity the exception: the French Ambassador told us that this means that exceptions from the rule should be specified and clearly identified and would be mostly questions which have constitutional consequences and would require parliamentary ratification (Q 228).

60. The United Kingdom Government's initial approach to this question was that there should be a much less generalised extension of QMV. The White Paper divided the Articles subject to unanimity into three groups:

    "58. Clearly some areas, such as Treaty change and accession, will have to remain subject to unanimous agreement … we shall [also] insist on retaining unanimity for other key issues of national interest such as taxation, border controls, social security, defence and Own Resources.

    59. But for some areas currently subject to unanimity, QMV would clearly be in our interests. Where that is the case, we shall actively promote it. QMV for Council approval of the ECJ Rules of Procedure, for example, would help the Court to make judgements more quickly.

    60. In other areas we will look at the pros and cons of QMV on a case-by-case basis. On appointments to the Economic and Social Committee or the Committee of the Regions, for example. Or for transport, where the current unanimity provision provides a potential barrier to the Single Market[24]".

61. Mr Vaz told us, at the end of our enquiry, that the Government's position remained essentially unchanged: "On issues of tax, social security, borders, Treaty change, defence, own resources, we do not accept that it should apply in any way." In other areas, he said "we really feel that we need to examine QMV on a case-by-case basis for the simple reason that once you accept it there is no turning back and therefore we want to make sure we make the right decision". (Q 570).

62. The Portuguese Presidency's analysis of QMV in its pre-Feira report lists a number of constitutional or quasi-constitutional questions which intrinsically call for unanimity. It divides the remaining Articles into two categories, those where a straightforward move to QMV could be considered, and those where a straightforward move to QMV would be impossible because of their complexity or political sensitivity, but where a partial move to QMV might be possible.

63. The PPR records the regret felt by some delegations that this subject had not been tackled in a more ambitious way (i.e. establishing QMV as the norm subject to limited exceptions). It is clear that a case-by-case examination of proposals for QMV will be the method used in the final phases of the Conference. The PPR also notes that, in many of the areas to be discussed, there is no agreement between the delegations. The list of Articles which could be considered for a straightforward move to QMV, for example, contains a number of issues where the use of QMV would be met with "virtually unsurmountable political reluctance". The PPR's discussion of the taxation and social provisions of the Treaties, although trying to identify areas of possible compromise, makes it clear that some delegations are implacably opposed to any change. Summing up progress on QMV to date, the German Ambassador in London, HE Dr Hans-Friedrich Von Ploetz, told us that there was agreement over QMV in only one area, that of changes in the rules of the Community Courts (Q 232).

64. The majority of decisions within the Council are already taken by qualified majority. The Union already comprises 15 States, and is likely to be enlarged to over 25 States in the foreseeable future. Reaching unanimity among such a large number of States is clearly difficult, and the IGC has examined two alternative ways forward. The first option, which would have established QMV as the general rule for all Council decisions, with unanimity as the exception, appears to have been rejected. The Conference is now proceeding with a case-by-case examination of each Article still subject to unanimity to see whether agreement can be reached to move to QMV. The evidence we have received on this topic suggests that this Conference is unlikely to achieve any significant extension of QMV into areas of Community activity where it does not apply already. Most delegations have entered significant reserves about the extension of QMV to certain key policy areas, and it seems that any increased use of QMV will be in relatively technical and uncontroversial fields.


65. The most significant item to be added to the Conference agenda during the Portuguese presidency is the issue of "flexibility" or "enhanced co-operation". Although discussion of this item has been taking place since before the formal opening of the Conference, it was not formally placed on the agenda until the Feira European Council.

66. Discussion of this issue has been fuelled, in part, by a number of speeches and articles by prominent politicians (among others, Valéry Giscard d'Estaing and Helmut Schmidt, Joschka Fischer and Jacques Chirac proposing various schemes for future developments in European integration, whereby groups of Member States might agree to co-operate, formally or informally, in certain policy areas, as an "avant-garde" or "pioneer group", leaving the other Member States to catch up. These contributions to the debate have ensured that the issue of "flexibility" has had a high profile in the discussions surrounding the IGC.

67. The idea of reinforced co-operation has been present in the Treaties since the earliest days of the European Communities. For example, the Treaty has always recognised the possibility of the Benelux countries forming "regional unions" among themselves "to the extent that the objectives of these regional unions are not attained by the application of this Treaty"[25]. The Amsterdam Treaty introduced a procedure for authorising a group of Member States to move ahead with an activity in the first or third pillar areas, even though not all Member States wished to take part. The conditions for such flexibility are carefully defined:

  • The proposed activity must not affect the functioning of the Single Market
  • A majority of Member States must take part
  • Non-participating States must have the right to join later.

68. There is also an "emergency brake" provision, whereby any Member State who feels that such closer co-operation affects an important national interest may request that the decision be referred to the European Council, where it will be decided by unanimity.

69. The proposals currently before the IGC are aimed at relaxing the Amsterdam conditions for achieving closer co-operation. These have never been used[26], and some delegates argue that they are so strict that they could never be used in practice. The conditions could be relaxed, for example, by removing the "emergency brake" veto provision, or by reducing the number of Member States required, or by introducing different conditions for closer co-operation in different policy areas.

70. The German Ambassador told us that the application of reinforced co-operation was envisaged in those areas where the new Member States would not be able to proceed at the same rate as the older Members, for example in the environmental field (Q 234). Both the French and German Ambassadors emphasised the point that if the Treaties were not amended to make reinforced co-operation easier to achieve, such co-operation would be pursued outside the Treaty framework and without the involvement of the EU institutions (QQ 234-5).

71. Professor Wallace described the area as a "poisoned chalice" and considered that, there was a danger that flexibility might become "a vehicle for extensive opting out of collective regimes by one government after another. Thus a reform ostensibly designed to facilitate initiatives might turn out to be the driver of a large wedge between the real insiders and the rest". She also warned that it could be used as a tool to deny the new member states a real voice in EU decision-making." (p.33)

72. The United Kingdom Government's White Paper stated that "a stronger case will have to be made in order to justify changing procedures that were agreed only in 1997 and have not yet been put to the test, or indeed used at all." Mr Vaz said that, in discussion of this issue, no practical examples had been given of how and why the present system was not working, and no examples had been given of where flexibility could be useful. The government was "relaxed" about debating this issue, but feared that it could lead to a two-speed Europe, which could be particularly damaging to the applicant States. He concluded that "we need to be convinced that this is actually something that is going to benefit the European Union and make it a more effective and useful organisation.

73. The idea of flexibility is not new. The earliest Treaties contained a flexibility provision allowing closer co-operation between the Benelux states, which is still in force. Transitional arrangements for new Member States and other derogation's from EC law have always been accepted in practice. The addition, in Amsterdam, of the flexibility provisions which now form Articles 40, 43 and 44 of the EU Treaty and Article 11 of the EC Treaty was therefore not a radical departure, but a development of existing arrangements[27].

74. We are not convinced that the issue of flexibility is as important as some Member State governments advocate. Nor are we convinced that the Treaty provisions governing flexibility are in serious need of revision. We see no need for the "emergency brake" provisions included in the Amsterdam Treaty, and no threat to the United Kingdom's interests in its removal. We have not heard any concrete proposals for areas where reinforced co-operation might be used, and it is unclear whether the conditions in the existing Treaty provisions have, in themselves, inhibited the development of reinforced co-operation.

75. Discussion of flexibility has become confused with the more visionary proposals referred to in paragraph 66 above for an "avant-garde" or "pioneer group". Although these ideas are based on the concept of flexibility, they are rather different in scope and purpose. In our view, such a development would be undesirable in principle. The evidence we received suggested that it would also be unlikely in practice. There is plenty of space for flexibility within the Treaties as they stand.


76. In respect of the European Parliament, the Conference has considered two sets of issues. The first is the size and composition of the Parliament in the light of the forthcoming enlargement of the Union. The second is the legislative role of the Parliament, including the extension of the co-decision procedure and the possibility of simplifying the legislative process as a whole.

77. The size of the Parliament—a maximum of 700 seats—was agreed at Amsterdam, and there is general agreement in the Conference that this limit should not be breached. This will necessitate a substantial reallocation of seats in the Parliament following enlargement.

78. The present number of MEPs for each Member State is laid down by Article 190 of the EC Treaty, which specifies numbers ranging from 6 MEPs (for Luxembourg) to 99 (for Germany). Critics of this system argue that it gives disproportionate representation to the smallest states. One MEP from Luxembourg represents some 70,000 inhabitants, while one MEP from Germany represents some 830,000 inhabitants. This weighting in favour of smaller States is deliberate, to ensure the representation of a full range of political forces from each State.

79. Two basic approaches have been proposed in the Conference. The first would, essentially, continue the current system of allocation. It would be extrapolated to the new Member States, but there would be a linear reduction in the number of seats allocated to all States, to keep overall numbers within the threshold of 700. There would be a substantial and widening bias in favour of the smallest States in the Union.

80. The second approach (proposed by the European Parliament itself) would allocate each Member State a minimum of four seats, with the remaining seats allocated in a way which was directly proportional to the population of each Member State.

81. Whichever of the two formulae is adopted, there will need to be transitional arrangements, in order to avoid the withdrawal of a Member's mandate during the term for which he or she was elected. The majority of delegations favours a two-stage adjustment, to take place in advance of the EP elections to be held in 2004 and 2009. Two variants are being considered. Either the adjustments could be made in advance of foreseeable accessions (thus avoiding any over-run of the limit of 700) or the figures could be adjusted after the event, with a temporary overrun of the 700-seat threshold.

82. Alternatively, a minority of delegations favours a single adjustment, either in 2004 (which would inevitably be a prospective adjustment, as it is unlikely that many of the accessions will have taken place) or a retrospective adjustment on 2009, taking account of the accessions which had already taken place.

83. We have taken note of the proposals before the Conference. We agree in principle with the European Parliament's proposals for reallocating seats in the Parliament, maintaining the overall maximum of 700 seats. We believe that the European Parliament's proposals, while maintaining a minimum of 4 MEPs per Member State will more accurately reflect the differences in population size between the Member States. We believe that a two-stage adjustment in the allocation of seats (in advance of the European Parliament elections of 2004 and 2009) is desirable.


84. There is general agreement in the Conference that the co-decision procedure itself (set out in Article 251) should not be amended. On the scope of co-decision, most delegations think that it should be examined by the Conference at the same time as the question of extending QMV (see paras 57-64 above) (PPR, p 36). Both the EP and the Commission have proposed that, wherever the Council adopts legislation by QMV, it should do so in conjunction with the EP, through the co-decision procedure. Sir Stephen Wall told us that some of the preparatory papers for the IGC had been based on the assumption that "if majority voting is extended then co-decision automatically gets extended alongside." He went on to say that the United Kingdom "and some other Member States have argued that you have to look at each case on its merits. There is not an automatic assumption about it. In most cases, if you went to majority voting, co-decision would follow, but it is not automatic" (Q 419).

85. In the interests of simplifying and rationalising the Union's decision-making procedures, a large majority of delegations is in favour of abolishing the co-operation procedure (Article 252), although there is no consensus on the choice of a replacement procedure for the four provisions still subject to co-operation. Some delegates favour co-decision, while others prefer consultation of the Parliament (PPR, p 36).

86. The Conference has also considered a proposal for the development of two categories of legislation in the EU, roughly corresponding to the distinction between "primary" legislation (Acts of Parliament) and "secondary" legislation (Statutory Instruments) in the United Kingdom system. As the PPR states:

87. The Conference has asked the Council Legal Service for a research paper, and has agreed to continue the discussion on the "practical, legal and institutional aspects" of this topic.

88. There seems to be a broad consensus that any extension of QMV should entail a parallel extension of co-decision. We support this approach. The use of co-decision goes some way towards reinforcing democratic accountability where the Council acts by QMV.


89. The focus of our enquiry was on the three main institutional issues, and we did not set out to take detailed evidence on the reform of the Community Courts. However, this is an area where there is a considerable measure of agreement in the IGC, and, for the sake of completeness, this section of our report summarises the changes which have been agreed so far.

90. The Portuguese Presidency Report notes that "the growing number of cases before the Community courts and the prospect of an enlarged Union mean that changes to the structure and operation of the system are required". This is a generally shared view and so the discussions are concerned with the details and not the principles of reform.

91. The PPR goes on to set out four categories of proposal:

92. The reform guidelines which have been agreed so far are intended to provide the Council with a means of amending the provisions governing the Court of Justice ("CJ") and Court of First Instance ("CFI") in the light of changed circumstances (such as enlargement) without recourse to the cumbersome process of Treaty amendment (and subsequent ratification). It is proposed that the Council should be given powers to make these amendments, acting either by unanimity or qualified majority according to the circumstances. The main changes proposed are:

  • Removing some of the Treaty provisions governing the CJ, to the Protocol of the Statute of the Court of Justice. The effect of this is that amendments to the Protocol could be made by the Council, acting unanimously, but Treaty change (and subsequent ratification) would no longer be required each time. The Statute would also incorporate the Council Decision establishing the CFI.
  • QMV, rather than unanimity, for amending the rules of procedure of the Community Courts.
  • Limiting the number of judges to one per Member State, limiting the number of judges sitting in the Court's plenary sessions ("so that it does not become an assembly") and removing the requirement for an Advocate-General's opinion in all cases.
  • The creation of specialist "judicial boards of appeal", for example in staff matters and trademark cases. There would be provision for appeals from the decisions of these boards, and such appeals would be heard by the CFI.

93. Over a number of years, the Select Committee has emphasised the need for an effective and efficient system of Community Courts. We have also commented critically on the backlog of cases and consequent delays. We therefore welcome the package of reform measures described above. They will allow the Courts to adapt more promptly to changes in the EU and, it is hoped, to reduce the time taken in dealing with cases.


94. The Conference has examined proposals for modifications in the size and composition of the other Institutions, The PPR notes that "there was overall support for maintaining the status quo, apart from a few adjustments, largely concerning the size of the consultative bodies and, secondarily, their role." We have not taken evidence on these points, but a summary of the relevant parts of the Presidency Paper is included here.

95. On the Court of Auditors, a majority of delegations wishes to see one national from each Member State "in order to facilitate co-operation with the competent national audit bodies", while others would prefer maintaining the current size of the Court (15) or a reduction to 12 members. Most delegations are open to the ideas of setting up "Chambers" to allow the Court to function more efficiently, and of allowing the Court to draw up its own Rules of Procedure, but others feel that the case for these changes has not been made.

96. The composition of the Economic and Social Committee, and the Committee of the Regions which currently consist of 222 Members each (between 6 and 24 per Member State), has also been examined. At present, the Treaty does not lay down a maximum size for either of these bodies. A majority of delegations favours setting a limit on the overall size of the Economic and Social Committee, and several delegations favour setting a limit on the size of the Committee of the Regions.

97. In both cases, proposals have been made for a ceiling either one-half or one-third of that set for the European Parliament. However, other delegations would favour an extrapolation from the present system of allocation of seats, which would mean that the consultative bodies would continue to grow in size.

98. These institutional issues have not been considered fully by the IGC, although they need to be resolved before enlargement takes place.We received little or no evidence on these issues, and can make no firm recommendations.


99. The Committee considers that the 2000 Inter-Governmental Conference raises important questions to which the attention of the House should be drawn, and makes this Report to the House for debate.

23   White Paper, p.20.  Back

24   White Paper, pp 20-21. Back

25   Article 306 EC. Back

26   The Protocol incorporating the Schengen acquis is an example of closer co-operation adopted in anticipation of the entry into force of the amended Treaties. Back

27   An amendment was moved at this point, and the Committee divided. See Appendix1 for the text of the amendment and the result of the division. Back

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