Memorandum by Federal Union
AN OPPORTUNITY
FOR DEMOCRACY
1.1 Federal Union was founded in 1938 to
campaign for federalism for the UK, Europe and the world. It has
argued since then that democracy and the rule of law should apply
between states as well as within them.
1.2 Federalism divides political power between
levels of government to achieve the best combination of democracy
and effectiveness. It is not the bureaucratic centralisation of
popular myth.
1.3. This submission addresses three of
the nine questions, numbers 3, 5 and 7, with a conclusion at the
end.
3. The impact of the Reform Treaty on the
role and functioning of the Council of Ministers, including the
effects of the use of team Presidencies, their relationship with
the President of the European Council, and the new system of qualified
majority voting
3.1 In addition to the points mentioned
in the question above, one should also consider the additional
requirement (in paragraph 17 of the Lisbon treaty, Article 9C(8)
of the future consolidated treaty) for the Council of Ministers
to "meet in public when it deliberates and votes on a draft
legislative act". This is a provision that could, if applied
properly, make a great deal of difference to the way in which
the European Union functions.
3.2 Given full access to the relevant information,
it will enable national parliaments to hold to account their national
representatives in Council meetings much more effectively than
they have been able to do in the past. However, a lot still rests
on the exact definition of meeting in public. Present practice
focuses on the final vote on a legislative proposal, but every
stage of the legislative procedure should be open to scrutiny:
specifically, all amendments to legislative proposals should be
documented, with the identity of the proposer of each amendment
and the way in which the votes are cast.
3.3 As an example of this problem, the Commission
proposal for reform of the EU sugar regime in 2005 was amended
in Council discussions to increase the overall cost of the regime
to the taxpayer by 300 million euros per year but, because this
change took place by way of amendment to the original proposal,
before the final vote was cast, there is no trace of who supported
it and who did not. By way of comparison, 300 million euros is
more than the EU spends on its environmental programmes annually.
Decisions about public money should not be taken in this way.
(Source: Openness and secrecy in the EU institutions: lessons
from the EU sugar regime, Federal Trust Policy Brief 28, June
2006)
3.4 Adopting this degree of openness would
oblige national governments represented in the Council to explain
and justify their actions more completely. This would lead both
to better government and also to better public understanding.
3.5 To suggestions that this degree of openness
would bring the work of the Council to a halt, it should be noted
that this proposal relates only to legislation and not the other
aspects of the Council's work, and further that this degree of
openness on legislation is already practised by the European Parliament
(and indeed the two houses of parliament in Westminster).
3.6 It is possible, as a result of this
change, that national governments might be less willing to support
proposals in Brussels that they could not justify directly in
front of their own voters. This might be no bad thing.
5. The impact of the Reform Treaty on the
role, functioning and membership of the European Commission, including
the effects of the changes to Commission selection and the accountability
of the Commission to the European Parliament
5.1 One of the most frequent complaints
voiced about the European Union relates to the unelected nature
of the European Commission. Paragraph 18 of the Reform Treaty
(creating a new Article 9D(7) in new treaty) states that future
nominations for president of the Commission will be made "Taking
into account the elections to the European Parliament and after
having held the appropriate consultations" and such a nominated
candidate "shall be elected by the European Parliament by
a majority of its component members".
5.2 This would give the president of the
Commission the same kind of legitimacy as that enjoyed by the
prime minister of a Member State—holding office on the strength
of an election victory—if properly implemented. To be properly
implemented, though, the political parties that fight the European
elections must, alongside their manifestos, nominate their candidates
for president.
5.3 The alternative is that the identity
of the next president of the Commission will emerge, as before,
as a result of opaque and distant negotiations behind closed doors.
We do not think this is the way that positions of political importance
should be acquired.
5.4 Anyone elected to the European Parliament
in June 2009 will face, shortly after being elected, the task
of voting for or against a candidate proposed by the European
Council. It is surely not too much to ask that candidates should
declare before the parliamentary election how they will vote if
elected. Many voters might consider this rather salient information.
5.5 This duty is incumbent particularly
on all those who have complained that the European Commission
is too distant or remote from the voters. Party politicians of
all parties should therefore be asked to declare their personal
support for the idea that their own party should nominate a candidate
for president in 2009.
7. The impact of the Reform Treaty on the
role of national parliaments
7.1 National parliaments are one of the
big gainers from the Reform Treaty, or rather, they are if they
want to be. This manifests itself in two ways.
7.2 First, there is the opportunity provided
by increased openness in the Council (discussed in the answer
to question 3). Secondly, there is the new right accorded to national
parliaments to scrutinise legislative proposals from the European
Commission (Protocol on the role of national parliaments in the
European Union). This gives them for the first time a direct stake
in the EU legislative process.
7.3 Whether or not they will be able to
use this right effectively depends on how they are organised to
deal with such legislative proposals or, more correctly, how they
organise themselves. It is incumbent on all those national politicians
who believe that they have not been involved enough in the European
legislative process up until now to rethink the procedures they
follow in order to fulfil their new duties more effectively.
8. CONCLUSION
8.1 In each of the three areas highlighted
in this submission, the provisions of the Reform Treaty will increase
the democratic nature of the EU's institutions. Some people have
remarked that, unlike the Single European Act which created the
single market or the Maastricht Treaty which created the euro,
the present Reform Treaty lacks a single big idea. This might
be true, if democracy itself is not considered a big idea. In
that case, Federal Union would respectfully disagree.
8.2 However, the improvements to the democratic
quality of the EU's institutions are there in embryo, rather than
fully formed. It will require a continuing commitment to maintain
and build the EU as a democratic system: the government has not
discharged its duty with a mere signature on the treaty.
8.3 Of particular importance in this context
are the following:
— the willingness of national governments
to live up to their commitments by ensuring a proper approach
to openness in the legislative process;
— the willingness of party politicians
to make a reality of their rhetoric about the European Commission
and support the nomination of candidates for Commission president
for the next elections in June 2009; and
— the willingness of national parliaments
to engage in the EU legislative process and to examine their own
procedures in the light of developments within the EU.
8.4 The adoption of the Reform Treaty creates
an unprecedented opportunity to develop the democratic structures
of the European Union, while increasing the role of elected politicians
at national level and also increasing the political choices and
influence of the voters themselves. That is why Federal Union
supports it.
8.5 But the treaty remains an opportunity
for democracy, rather than the certainty of it. That is why Federal
Union will continue to campaign.
Richard Laming
Director, Federal Union
13 December 2007
Memorandum by Professor Simon Hix, Professor
of European and Comparative Politics, London School of Economics
1. This note looks at the following issues
in relation to the Reform Treaty:
— the role and impact of the President
of the European Council;
— the role and impact of the new system
of qualified majority voting;
— the impact of the extension of the
co-decision procedure;
— the impact of the proposed changes
in the selection of the Commission; and
— the overall impact of the Reform
Treaty relative to previous EU treaty reforms.
2. The proposed President of the European
Council, elected by a qualified majority vote for a two and a
half year period renewable once, may improve the efficiency of
decision-making in this particular institution, and may establish
more identifiable leadership at the European level.
3. However, I see several significant problems
with this post. First, the President of the European Council would
not have the same authority as any of the sitting heads of government,
such as a Prime Minister of the member state holding the Council
Presidency under the current rotating system, and so is likely
to be beholden to the governments of the larger member states
or a particular coalition of governments.
4. Second, and potentially of more concern,
the new post may undermine the authority of, and most likely conflict
with, the Commission President. The European Council President
may have higher prestige than the Commission President, however
the Commission President will have considerably more formal policy-making
power than the Council President, in terms of the right to initiate
legislation and generally influence the policy agenda of the EU.
Given the relative powers of the two posts, in a situation of
conflict, for example on a major piece of legislation, the Commission
President will invariably win out. Any conflict between the two
posts will be exacerbated by the fact that the European Council
President will be accountable to the governments while the Commission
President will increasingly be accountable to the European Parliament.
5. For example, comparing the envisaged
dual-presidency of the EU to the French dual-executive system,
unlike the French President, the European Council President will
not be able to hire and fire the Commission President, and due
to the competing sources of authority of the two posts the EU
will be in a situation of permanent "co-habitation".
6. A potential solution, in the medium-term,
would be to fuse the office of the Commission President and the
European Council President.
7. At a superficial level the new qualified
majority voting rules in the Reform Treaty look simpler than the
rules in the Nice Treaty, as the current triple majority (of 255
votes out of 345 plus 50% of member states plus 62% of the population)
would be replaced by a new double majority (of 55% of member states
plus 65% of population). In reality, however, the difference between
the two sets of rules is relatively minor because over 90% of
coalitions that commanded a majority under the Nice rules would
also command a majority under the Reform Treaty rules.
8. Having said that, most scholars of decision-making
are extremely critical of the qualified majority voting rules
in the Reform Treaty. This is because these rules are highly inequitable
in terms of the relative decision-making power they would give
each member state. Under a truly equitable system of voting in
the Council, every citizen in every member state should have an
equal chance of being on the winning side. It is an established
mathematical fact that such an equitable outcome can be achieved
by a simple weighted votes system (as in the Rome Treaty), where
the voting weight of each member state is some proportion of the
square-root of its population. Forty-eight of the world's top
political, economic and natural scientists wrote a letter to the
governments proposing precisely this model, yet their advice was
sadly ignored.
9. To illustrate the inequity of the Reform
Treaty consider Figure 1. The figure assumes that the "power"
of a member state in the Council is determined by the proportion
of times that state would be on the winning side under the qualified
majority rules relative to all the other member states. The population-based
part of the new voting formula over-represents the four largest
states relative to the power they should have in a truly equitable
system, while the state-based part of the formula over-represents
the six smallest states. Put another way, citizens in these 10
states are far more likely to be on the winning side in the EU
than citizens in any of the 18 other states. This could have considerable
long-term consequences for the legitimacy of the EU in a large
number of states. In this regard, the Reform Treaty is certainly
not an improvement on the flawed rules in the Nice Treaty. In
my opinion, the lack of equity in the voting rules in the Council
may by a sufficient reason for rejecting the Reform Treaty.
Figure 1
RELATIVE VOTING POWER IN THE COUNCIL UNDER
THE REFORM TREATY COMPARED TO "TRUE EQUITY"
10. The Reform Treaty would extend the co-decision
procedure to a limited number of areas. The changes in this regard
would be a relatively minor extension of the powers of the European
Parliament compared to the reforms of the Single European Act,
the Maastricht Treaty or the Amsterdam Treaty. Nonetheless, co-equal
legislative power between the Council and the European Parliament
in the area of agriculture may enable the common agricultural
policy to be reformed via the European Parliament. Surveys of
the MEPs have shown, for example, that there is an overwhelming
majority in favour of reforming the common agricultural policy
in the European Parliament.
11. Regarding the proposed change to the
way the Commission is chosen, at face value it might appear that
the Reform Treaty would introduce an "election" of the
Commission President by the European Parliament after the European
elections. In practice, however, the procedure for selecting the
Commission President in the Reform Treaty is exactly the same
as the existing procedure. The major change in the Commission
President election procedure was the introduction in the Nice
Treaty of a qualified majority in the European Council for nominating
the Commission President. This means that several rival candidates
come forward and that there is a less than unanimous coalition
of governments in favour of a nominated candidate, which then
reduces the ability of the governments to impose their preferred
candidate on the majority in the European Parliament. As a result,
the European Council already has to "take account" of
the results of the European elections, as they did in the nomination
of Barroso in July 2004. Hence, the provisions of the Reform Treaty
in this area are purely symbolic and would change very little.
12. Overall, in terms of its impact on the
policy competences of the EU and the balance of power between
the EU institutions, the Reform Treaty is probably the least significant
treaty the EU governments have ever signed. Unlike all previous
treaties, there are no major new EU policy competences in the
treaty. There is also no major extension of the powers of the
European Parliament, the Commission or the Court of Justice, or
a change in the balance of powers between the governments and
these supranational institutions.
13. The Reform Treaty is the latest step
in an almost continuous process of EU treaty reform since the
mid 1980s. The fact that the governments have continually changed
the treaties in the last two decades might suggest that reforming
the treaties is an effective instrument for changing the way the
EU works. The opposite is in fact the case. The governments have
had to embark on a new round of reforms almost before the ink
has been dry on the previous reforms because reforming the treaties
is a very ineffective instrument. Despite lofty ambitions at the
start of each process, each set of reforms has ended up being
less significant than the previous set of reforms. The reason
for this is that the basic architecture of the EU is closer and
closer to what political scientists call an "institutional
equilibrium". Some member states would like the EU to be
more federal while others would like it to be more intergovernmental.
Meanwhile, some states would like the EU to be more liberal while
other member states would the EU to be more social democratic.
The current design of the EU is a delicate balance between all
these positions.
14. As the EU has got closer and closer
to this equilibrium, treaty reforms have become less and less
ambitious. This is illustrated in Figure 2. The figure shows how
each set of treaty reforms changed the EU architecture on two
key dimensions: (1) the degree of policy integration, in terms
of the extent of policy competences of the EU relative to the
policy competences at the national level; and (2) the degree of
supranational decision-making in the institutions at the European
level, in terms of the powers of the Commission, the European
Parliament and the Court of Justice, and the extend of the use
of qualified majority voting in the Council.
Figure 2
RELATIVE SIGNIFICANCE OF THE EU'S TREATIES
15. The Treaty of Rome was less supranational
than expected after the Luxembourg Compromise in 1966. The main
innovation of the Single European Act was the extension of supranational
decision-making to enable the internal market to be created, through
greater agenda-setting power of the Commission, qualified majority
voting in the Council, and the cooperation procedure. The Maastricht
Treaty then added several new policy competences, such as EMU,
CFSP, and JHA, but did not significantly change the balance of
powers between the institutions—for example, the Commission,
the European Parliament and the Court of Justice were restricted
in the new policy areas. The Amsterdam Treaty added the area of
freedom, security and justice, with extensive supranational decision-making
in this area, and increased the power of the European Parliament
by reforming and extending the co-decision procedure. The Nice
Treaty then added defence cooperation and made some minor changes
to the institutions in preparation for enlargement.
16. In sum, the basic "constitutional
architecture" of the EU—of a continental-scale market
created and regulated by quasi-federal institutions in Brussels,
taxing and spending policies maintained at the national level,
and intergovernmental cooperation on foreign policy, macroeconomic
policy and some justice and security policies—is extremely
stable. This architecture was put in place by the Rome Treaty,
the Single European Act and the Maastricht Treaty, and was only
moderately changed by Amsterdam and Nice. The Reform Treaty would
not change this basic architecture much at all. From this perspective,
the debates about the Reform Treaty are a lot of fuss about very
little.
17. There are, however, two changes with
potentially negative consequences: (1) the European Council President,
which may conflict with, and undermine the authority of, the Commission
President; and (2) the new system of qualified majority voting
in the Council, which is a highly inequitable system and may undermine
the legitimacy of the EU in a significant number of member states.
27 November 2007
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