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AUCO Czech Economic Review 2 (2008) 76–96
Acta Universitatis Carolinae Oeconomica
Received 1 December 2007; Accepted 29 January 2008
Council Decision Rules and European Union
Constitutional Design
Madeleine O. Hosli∗
Abstract In the recent past, the choice of adequate voting weights and decision rules for the
Council of the European Union (EU) has been a highly contested issue in EU intergovernmental
negotiations. In general terms, the selection of a threshold for qualified majority votes (QMV) in
the Council constitutes a trade-off in terms of decreased sovereignty for individual governments
versus an increased collective ‘capacity to act’. This paper compares the effects of the proposal
tabled by the Convention on the Future of Europe with the Nice Treaty provisions and the Lisbon
Treaty, in terms of both the efficiency of decision-making and the distribution of relative voting
power within the EU of twenty-seven member states. In addition, the paper shows how with the
current size of EU membership, the EU risks being unable to reach intergovernmental agree-
ment. Accordingly, a challenging issue for the future of the EU is to move towards reasonable
provisions that allow its own constitution – if ever adopted – to get amended.
Keywords Council of the European Union, decision rules, constitutional design, capacity to act,
power indices
JEL classification C15, C71, D70, D71 ∗
1. Introduction
In June 2003, the ‘Convention on the Future of Europe’ came to a close. The challenge
of institutional reform had been significant for several years, and progress, generally,
was by incremental steps. ‘Amsterdam leftovers’ had partially turned into ‘Nice left-
overs’, as the December 2000 Nice Summit meeting had far from resolved all of the
outstanding institutional challenges facing the EU. The 2002–2003 Convention dealt
with a vast range of issues in a novel fashion, involving a variety of societal actors.
Institutional reform was just one element of the broad range of discussions that took
place in the Convention, although a rather central one.1
Some crucial institutional issues, however, even after the conclusion of the Conven-
tion, remained unresolved. In mid-December 2003, one of the most important stum-
bling blocks for the potential acceptance of the draft constitutional treaty turned out
to be the central issue of allocating voting weights in the Council of the EU. As The
Economist claimed, even before the failure of the December 2003 EU summit meet-
∗Leiden University, Department of Political Science, P.O. Box 9555, NL-2300RB Leiden, the Netherlands.
Phone +31715273456, E-mail: hosli@fsw.leidenuniv.nl.
1For an elaborate overview of the institutional aspects dealt with by the Convention, see Dinan (2003).
76 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
ing, “The single most controversial issue concerns the balance of power between EU
countries in the Council of Ministers”. (The Economist, 22 November 2003, p. 35)
At the 2000 Nice summit meeting, a re-weighting of votes in the Council of the
EU, sometimes still called the ‘Council of Ministers’, had been decided after lengthy
negotiations on the issue. Cleavages were then especially evident between larger and
smaller EU states about appropriate voting weights for the EU Council. Insiders have
provided descriptions of the tedious bargaining processes that led to the outcomes of
the Nice negotiations (e.g. Galloway 2001, Moberg 2002). The results in terms of
vote allocations appeared to be determined by ‘power politics’ rather than any careful
background reflection.
In view of the central importance of voting weights in the Council of the EU, this
paper mainly deals with modes of majority voting in this institution. The Nice re-
weighting of votes had largely been triggered by a dissatisfaction among large EU
states with what they perceived to be a considerable overweighing of the influence of
small and medium-sized countries in EU decision-making (e.g. Moberg 2002). The
provisions agreed upon at Nice also foresaw a moderate increase in the voting thresh-
old applicable in the framework of qualified majority votes (QMV), thereby enhanc-
ing the capacity of EU states to block decisions (e.g. Felsenthal and Machover 2001,
Leech 2002). In percentage terms, the required share of votes needed for proposals to
be accepted was increased from the then prevalent level of just over 71 percent to ap-
proximately 74 percent of the total, in a projection of enlargement to twenty-seven EU
member states. An important rationale for EU states in the respective intergovernmen-
tal negotiations was maintenance of their own capacity to veto (or at least their ability
to block decisions together with some like-minded states). The collective effect of
such an adapted decision quota, however, is a likely decrease in the Council’s capacity
to act (e.g. Paterson and Sil´
arszky 1999, Felsenthal and Machover 2001, Leech 2002,
Hosli and Machover 2004).2The lengthy nature of the bargaining process that chara-
cterized the Nice negotiations, as well as similar discussions in the framework of the
Convention, strengthen conjectures that reaching intergovernmental agreement within
the EU may, in the future, be a rather tedious endeavor. Unanimous decision-making,
as this paper demonstrates, is rendered significantly more difficult when membership
is expanded. Evidently, the calculations provided in this paper provide simple ‘avera-
ges’ that ignore other specific conditions – such as effects of collective ‘learning’ and
the related possibility of governmental preference convergence. Such developments
might facilitate rather than complicate collective decision-making in the EU, even on
the basis of expanded membership (e.g. Golub 1999, 2002, 2007). Empirically, in-
deed, decision-making in the EU, even under the Nice Treaty provisions, seems to
have slowed down less than such calculations would posit (e.g. Hagemann and De
Clerck-Sachsse 2007).
Nonetheless, this paper claims that enlargement by ten new members in May 2004
and two more members in January 2007 has made QMV decisions more difficult to
reach. In addition, it can be expected to render unanimous intergovernmental agree-
2Interestingly, applying spatial approaches to the analysis of decision-making in the EU Council, Tsebelis
and Yataganas (2002) derive similar results.
AUCO Czech Economic Review, vol. 2, no. 1 77
M. O. Hosli
ment in the EU rather difficult to achieve and is hence likely to prolong respective
negotiations, whether on day-to-day issues (regarding taxation, for example) or in the
‘broader’ and more general context of treaty reform (what might in the long-term future
be seen as ‘constitutional amendment’). In addition, the paper contends that at present,
a ‘status quo bias’ is likely to exist in all areas formally requiring unanimity in the
Council of the EU. In a normative sense, given the significance of the enlargement, it
might indeed be important – despite critiques raised against this suggestion by several
member state governments – not only to replace the unanimity requirement with QMV
for various issues areas, but also to find ways to adapt a possible future EU constitu-
tion itself on the basis of a decision threshold lower than unanimity. If not, it is likely
that an EU constitution, if it is ever going to see the light of day, might develop into a
somewhat rigid and static construct, unable to respond to new demands and challenges.
Evidently, any basic polity-building process involves decisions on how future reform
of a constitution should be undertaken as well as agreement on the original make-up of
such a constitution.
In terms of ‘day-to-day’ decision-making, the suggestion made by the Convention
to allow for a double-majority system, in which proposals in the Council can pass when
they are supported by a majority of EU states, representing three-fifths of the EU’s pop-
ulation, was rather surprising. Clearly, abolishing voting weights, in a radical depar-
ture from the voting system applied since the late 1950s, would not only considerably
have increased the relative influence of larger EU states (e.g. see Felderer, Paterson
and Sil´
arszky 2003, Felsenthal and Machover 2003), but it would also strongly have
enhanced the capacity of the Council to act (e.g. Felsenthal and Machover 2003). Inter-
governmental acceptance of such a system would undoubtedly have been astonishing,
since such a change would clearly decrease EU states’ potential to block decisions, an
aspect that is, as some authors have pointed out (e.g. Johnston 1995, Moberg 2002),
certainly salient to individual governments. Could governments of EU member states
ever have accepted such a drastic change? Apparently, the system adopted during the
Convention was not necessarily based on broad support: it was “proposed by the Con-
vention on the Future of Europe in June, which claimed to be an open and democratic
exercise. But the new voting system was decided upon at the last minute by the con-
vention’s praesidium (steering committee)...”. (The Economist, November 29, 2003,
p. 34) Whereas this comparatively straightforward decision rule – in contrast to the
more complex construct agreed upon at Nice – might be desirable in terms of trans-
parency and an increased capacity of the Council to act, it was likely to be a political
non-starter; it is hardly imaginable that governments would be willing to accept such
a sharp decrease in their capacity to prevent EU decisions from being adopted. Simi-
larly, whereas later on, the square root rule as an allocation formula for the EU Coun-
cil, as suggested notably by the Polish government, would have increased transparency
of vote allocation (e.g. Kirsch, Słomczy´
nski and ˙
Zyczkowski 2007, Słomczy´
nski and
˙
Zyczkowski 2007) and in fact, efficiency of Council decision-making, it could not pass
the required political hurdles. It seems that the effects of such novel rules might not be
easily discernible for the public and therefore again seem to be somewhat ‘opaque’.3
3For the double-majority rule, this argument has been made by Felderer, Paterson and Sil´
arszky (2003).
78 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
However, a fairly simple allocation rule would certainly help improve transparency,
and possibly general political legitimacy, of EU decision-making.
Evidently, any institutional design, including the one for the Council of the EU,
is faced with conflicting requirements. Generally, institutions need to offer an ade-
quate reflection of citizens’ interests in order to be perceived as ‘legitimate’ constructs.
This reasoning would also lend support to the introduction of vote allocations that at-
tribute equal indirect voting power to each EU citizen (e.g. Laruelle and Widgr´
en 1998,
Słomczy´
nski and ˙
Zyczkowski 2007). However, institutions also need to be ‘efficient’
in the sense of enabling majorities to reach decisions. Finally, institutions need to pro-
tect the interests of minorities – whether these are cultural, geographic or linguistic,
for example. Clearly, all of these requirements are crucial for the current and future
EU. However, they are partially conflicting: enhancing the degree to which minority
interests are protected in Council decision-making, for example, is likely to decrease
‘efficiency’ (in the sense of enabling majorities to reach decisions). In addition, main-
taining current member state veto rights in areas such as taxation – a position tradi-
tionally strongly defended by the UK government, for example – will evidently, with a
large number of EU states, slow down the EU’s capacity to act in this domain. A sim-
ilar logic undoubtedly applies to decision-making in the challenging and developing
field of the EU’s Common Foreign and Security Policy (CFSP).
This article focuses on the Council of the EU and examines the effects of earlier
voting rules applied, the provisions agreed upon at the Nice summit meeting and the
rules regarding the double-majority clauses contained in the Convention proposal and
later, in an adapted form, in the Constitutional and Lisbon treaties. The paper contends
that the combined effect of both unanimity and QMV with enlargement has been, and
will be in the future, to decrease the ‘efficiency’ of decision-making in the Council, in
the sense of lowering the a priori chances of legislative proposals to be adopted within
this institution. This implies that the interests, and relative sovereignty, of individual
member states are protected, but also that previous enlargements are likely to have
counterbalanced decisional ‘efficiency gains’ generated by the extension of QMV to
policy areas previously subjected to the unanimity rule. Ceteris paribus, the effect of
this will be that, in future, it will be more difficult than it is now to change the status quo
even in ‘day-to-day’ EU decision-making, due to the lower probability that decisions
will be supported by a required Council majority.4Given the importance of the voting
threshold (e.g. Leech 2002, Plechanovov´
a 2004, Słomczy´
nski and ˙
Zyczkowski 2007),
it seems that discussions at the Nice summit meeting had somewhat overemphasized
the issue of vote re-weighting, as little attention was paid to the crucial issue of the
actual level of the QMV threshold. In addition, the Nice summit did not generate clear
allocation rules for actual vote distributions. Rather, the allocation of voting weights in
the Council and the projected distribution of seats in the European Parliament appeared
to be the product of simple ad hoc political bargaining (e.g. Taagepera and Hosli 2006).
This paper will reflect on both the capacity of the Council of the EU to act and
4Of course, depending on the constellation of preferences of EU member states in the Council, the European
Parliament and the European Commission, for example, it may still be true that some issues are accepted
rather swiftly, also in the framework of an EU of 27 members or more. On average, however, this paper
claims that it will be more difficult to reach the required threshold.
AUCO Czech Economic Review, vol. 2, no. 1 79
M. O. Hosli
the capacity of the EU to adapt its possible constitutional provisions in the future. In
this sense, an examination of the effects of the institutional provisions, in combination
with enlargement, on both ‘rules on decisions’ and ‘rules on rules’ is offered. Metho-
dologically, the article departs from the assumption that future distributions of member
state preferences in the EU are not known with any degree of accuracy today, as these
distributions tend to vary according to the policy domain concerned as well as over
time. Hence, the paper employs a simple ‘baseline’ model in order to assess the EU
Council’s capacity to act and the capacity of the EU to reform itself in the future.
By presenting these calculations, the paper emphasizes that the ability of the Coun-
cil to act is not solely determined on the basis of whether decisions are made according
to the unanimity or QMV rule, but that this institution5is also affected by other impor-
tant factors, notably voting weights, the level of the QMV threshold and the number of
EU states.6In order to present and discuss these respective effects, the paper is struc-
tured as follows. Section two focuses on the challenges of constitutional design, high-
lighting trade-offs regarding decision-making efficiency, legitimacy, flexibility, and
protection of minority rights, since they are certainly important to the EU’s design as
regards institutional change; section three describes ways to measure decision-making
‘efficiency’ by employing the concept of ‘decision probability’; section four illustrates
how different options regarding decision thresholds affect the Council’s overall ‘capa-
city to act’ and demonstrates these effects in terms of decision probability and the rela-
tive distribution of influence among EU states resulting from the Nice, Convention and
Lisbon Treaty provisions; section five summarizes the main findings and concludes.
2. The flexibility of constitutional design
Changing the EU’s ‘decision rules’, through processes of treaty reform, currently still
requires agreement among all EU governments, and subsequent domestic ratification.
This procedure is also applicable to the recent Lisbon Treaty. Clearly, the Convention
on the Future of Europe was a novel way to start adapting decision rules and institu-
tional provisions for the EU, but governments of EU member states, in the subsequent
Intergovernmental Conference (IGC), were still able to ‘open up’ the entire negotiation
package and approve, or avoid, insertion of specific elements into the draft constitu-
tional treaty. ‘Constitutional rules’ for the EU currently need to be agreed upon unani-
mously by the governments of EU member states. Evidently, this will be increasingly
difficult in the future in view of the recent substantial expansion of EU membership
and possible further increases in the future. In this sense, ‘rules on rules’ for the EU
will be difficult to adapt if respective provisions are not changed – including decisions
on the choice of EU decision rules themselves.
As outlined above, ideally, constitutions are designed to meet various, partially
contradicting challenges. Most importantly, they need, on the one hand, to represent
the interests of a majority of the constituents and, on the other hand, to protect the
5Although the term ‘Council’ is used here, the same logic, of course, applies to deliberations within the
Committeeof PermanentRepresentatives (COREPER)or workinggroupslinked tothe Council,forexample.
6These aspects are emphasized in Leech (2002). For alternative solutions to the current vote allocation in
the Council and their possible effects, see Plechanovov´
a (2004).
80 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
wishes of minorities (such as different language, cultural or religious groups), while
still remaining flexible in terms of their capacity to make decisions, reform themselves,
and adapt to new challenges and circumstances.
In federal as well as ‘quasi-federal’ political systems, such trade-offs among dif-
ferent objectives tend to be both crucial and politically salient, since the overall consti-
tutional design needs to protect the interests of individual system components in order
to provide them with incentives to remain within the given structure. Traditionally,
the United States, based on a federal setup, has its member states represented on an
equal basis in the Senate, the parliament’s ‘upper house’, in spite of the fact that their
population sizes vary considerably. Accordingly, representation in the Senate is on the
basis of territory rather than population. By comparison, in the U.S. Congress, states
are represented according to population, with smaller states being represented more fa-
vorably.7Other federal systems are based on similar patterns of representation. This is
true for Australia, Canada, Germany and Switzerland. A challenge for such systems is
to protect the rights of their constituent units – states, provinces, cantons, or L¨
ander –
while still allowing for sufficient efficiency in federal decision-making. Moreover, the
inclusion of provisions for constitutional amendment and reform presents a particular
conundrum for these systems.
Canada’s Constitution Act, proclaimed on 17 April 1982, provided a formula re-
garding procedures for its own amendment. The compromise reached among the Cana-
dian provinces is contained in section 38 of the Act, stating that amendments require
“... resolutions of the legislative assemblies of at least two-thirds of the provinces that
have, in the aggregate, according to the then latest general census, at least fifty percent
of the population of all the provinces” (38(1)b).8The effects of this provision in terms
of the balance of influence among Canadian provinces, and the inherent flexibility of
the system, have been analyzed extensively by D. Marc Kilgour and Terrence Levesque
(1984). Despite the current widespread opposition of member state governments to this
suggestion, it seems highly likely that, in view of its future size, the EU will need a
similar provision regarding amendments of its own possible future constitution if it is
to avoid gridlock (in spite of the fact that the EU may rather be a ‘quasi-federation’
and hence not be fully comparable to the examples of federations as discussed here).
In James Buchanan and Gordon Tullock’s seminal work, The Calculus of Consent
(1962), decision-making costs, generally, are assumed to increase with the number of
players involved. According to the authors, a reduction in the relevant requirement
for making decisions – a decrease in the ‘decision threshold’ – enhances the capacity
of an institution to act. This approach resembles Coleman’s analysis of the ‘power of
a collectivity to act’ (Coleman 1971), to be discussed and applied in more detail be-
low. Unanimity rules ensure that all voters endorse a specific issue and no one gets
outvoted,9as Buchanan and Tullock emphasize, but they imply relatively high costs
7For an early analysis of this issue, see Robert Dahl (1956).
8Evidently, this formula resembles the ‘double-majority’ clause envisaged by the EU Convention as regards
‘day-to-day’ decision-making, but with reversed decision thresholds regarding population and number of
provinces.
9However, members may receive ‘side-payments’ in order to induce them to support a proposal. Moreover,
they may ‘log-roll’, i.e. trade their votes, obtaining support on an issue crucial to them in exchange for a
AUCO Czech Economic Review, vol. 2, no. 1 81
M. O. Hosli
regarding the process of reaching agreement (e.g. negotiation and transaction costs).
From the perspective of individual voters, in the framework of majority votes, the risk
of being adversely affected by a collective decision contradicting one’s own preferen-
ces is most extensive under the simple majority rule (i.e. 50 percent of the total plus
1 vote). The higher the decision threshold, the better is the protection of individual
interests, but the lower is the capacity of the collectivity to act.
In federal systems, the attribution of a relatively favorable pattern of representation
to smaller units may generally increase the sense of the ‘fairness’ amongst its citizens
(as long as it is not perceived by citizens of larger states as tilting the balance of in-
fluence towards smaller entities). In such systems, smaller groups – characterized by
specific cultural or linguistic ties for example – are able to block decisions they con-
sider to be detrimental to their own interests. Accordingly, such groups may choose
the option of ‘voice’ rather than ‘exit’10 within the federal structure. However, it seems
likely that the protection of the interests of individual components in a system has an
optimum beyond which the flexibility of the system decreases, leading ultimately to
a situation in which the system is no longer capable of generating decisions (or of
reforming itself).
Similarly, in the EU, smaller states may need to have a certain minimum clout in
the decision-making process in order to enable their citizens to feel content with the
overall system. The risk of feeling dominated by larger states is ever present in smaller
EU states and appears to constitute a realistic threat to the perceived legitimacy of the
EU’s institutional setup. Indeed, negotiations leading to the Treaty of Nice illustrated
the extent to which smaller and medium-sized EU states were willing to defend their
voting weights, fearing ‘marginalization’ in the EU’s decision-making process, and
voicing concern about possible increases in the relative power of the largest states (e.g.
Moberg 2002). Larger EU states, in turn, felt there was an increasing domination
of the large by the small, presenting this finding as a rationale for why their citizens
considered the extant system to be lacking ‘legitimacy’. It is, in fact, this discussion
that spurred the debate on the need to re-weight votes in the Council (see Best 2000).
A considerable range of studies has assessed the relative ‘swiftness’ of EU decision-
making, employing various methodological tools, and providing some empirical evi-
dence. For example, Golub (1999, 2002) found, analyzing EU directives, that the
introduction of QMV, combined with enlargement, had not caused a slow-down in EU
decision-making over time. But could the effects be more pronounced when more
members join? K¨
onig and Br¨
auninger (2002), in their analysis of regulations in addi-
tion to directives, contended that, in cases in which QMV applies, the relative swift-
ness of decision-making does indeed slow down with enlargement. A similar finding
was provided in Schulz and K¨
onig (2000). Recently, however, both Golub (2007) and
Hagemann and De Clerck-Sachsse (2007) found that the EU does not operate much
slower, even after the 2004 enlargement.
Most studies agree that the enhanced role of the EP in EU decision-making proce-
vote on an issue they consider to be of lesser importance. On effects of log-rolling more generally, e.g. see
Tullock (1976).
10 For a succinct distinction between ‘voice’ and ‘exit’, and on the importance of the concept of loyalty, see
Hirschman (1970).
82 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
dures is likely to have increased democratic ‘legitimacy’. But, evidently, it may also
have slowed down the swiftness of EU decision-making. This is a significant trade-
off that was highlighted, for example, in Golub (1999), Schulz and K¨
onig (2000) and
K¨
onig and Br¨
auninger (2002). If the capacity of the EU to act is to remain constant
over time, increasing powers for the EP – desirable in terms of strengthening the EU’s
democratic foundations – may need to be counterbalanced by decreasing decision-
making costs in the Council (i.e. by lowering the threshold in Council decision-making
rather than increasing it). In this sense, the suggestion made by the Convention would
provide a helpful remedy to past trends.
A somewhat more radical option would be the introduction of a ‘one state, one
vote’ rule combined with simple majority voting – without a second quotum regarding
population size – in the Council, similar to the model of the U.S. Senate. Whereas such
a provision would certainly enhance decision efficiency in the EU, it is impossible to
implement politically (e.g. see Baldwin et al. 2001). The suggestion resulting from the
Convention, however, amounted to almost such a simple majority clause, by abolishing
the voting weights of individual EU states and allocating one vote to each state (while
providing for a second quotum, the 60 percent of population provision).
Different versions of potential double-majority rules have been studied extensively
(e.g. Baldwin and Widgr´
en 2004). In what ex-post appears to be rather impressive
foresight, Turnovec (1997) analyzed effects of various double-majority voting schemes
for an EU expanded to twenty-seven member states – providing respective estimates
for exactly the members that make up the current EU-27.
How can the likelihood that decisions are taken in the Council be assessed in a man-
ner that provides a ‘baseline’ scenario? One possibility might be to use spatial models
of decision-making (e.g. as presented by Steunenberg et al. 1999) in an assessment of
the probability that, with different preference constellations, a required majority thresh-
old can be reached in the Council. However, another possibility consists of using the
decision threshold in order to assess the likelihood that winning coalitions form ceteris
paribus, ignoring other possible influences. This approach is based on the assumption
of Independent Coalition Culture (ICC). Accordingly, EU states are assumed to vote
independently in the Council and generally, to vote for or against a proposal with a
probability of one-half.
3. Voting weights, winning coalitions and ‘efficiency’ in Council decision-making
How will ‘efficiency’ of decision-making be measured in this article? The main focus
of the analysis is on the probability that, within a committee, winning coalitions can
be formed. Accordingly, the following sections analyze ‘efficiency’ by calculating the
probability that a randomly selected coalition among EU member states can meet the
required decision quota (here the majority requirement in the Council’s voting proce-
dures, assuming independence of vote choices and the probability of each voter voting
‘yes’ or ‘no’ to be p=0.5). The approach essentially provides figures on the propor-
tion of winning coalitions in all possible coalitions among EU member states, using
Coleman’s measure of the ‘power of a collectivity to act’ (Coleman 1971). For similar
AUCO Czech Economic Review, vol. 2, no. 1 83
M. O. Hosli
approaches, see Buchanan and Tullock (1962), Kilgour and Levesque (1984), Peters
(1996), K¨
onig and Br¨
auninger (1998, 2002), Baldwin et al. (2000, 2001), Paterson
and Sil`
arszky (2003), Felsenthal and Machover (2001, 2003), Hosli and van Deemen
(2002) or Plechanovov´
a (2004). The measure provided in this article thus largely
neglects political variables and the resulting estimates on the likelihood that specific
coalitions form among members on the basis of particular preference configurations.11
It aims to provide measures of ‘decision-making efficiency’, valid over longer time
spans and for a broad variety of issue areas. With this, it provides somewhat ‘pes-
simistic’ assessments regarding the probability of reaching decisions in the Council,
as in reality vote choices of governments in the Council of the EU may not be fully
independent of each other. In practice, the figures presented here provide estimates
on the length of time negotiations within the Council may take. Formal votes in the
Council can be taken at the end of a lengthy bargaining process (both inter-institutional
within the EU and among member states represented in the Council) and empirically,
have a sharp bias towards ‘yes’ votes due to the fact that ‘no’ votes tend to rather be
demonstrations of opposition against an EU decision for domestic audiences than an
actual revelation of preferences.
The technique used here focuses on the concept of winning coalitions, assuming
ICC; formally, the existence of a winning coalition can best be conceptualized in the
framework of the theory of simple games (e.g. see van Deemen 1997). A simple game
is an ordered pair of sets G= (N,W), where N denotes the full player set and W is
a set of coalitions (or subsets of N). An element of Wis termed a winning coalition
(correspondingly, the set of losing coalitions is generally denoted by L).12
A weighted threshold game is a simple game in which a voting weight is assigned to
each player. In such a game, a coalition is winning when the sum of the voting weights
of the coalition members is larger than, or equal to, the decision threshold (the ‘quota’
of the game). A weighted threshold game Gis represented by G= [q;w1,w2,...,wn],
with qdenoting the decision quota and wiplayer i’s voting weight. Formally, in a
weighted threshold game, a winning coalition satisfies the condition
S∈Wiff ∑
i∈Swi≥q.(1)
In words, coalition Sis winning if and only if the sum of the weights of the players in
the respective coalition equals or exceeds the decision threshold.
In a committee of size n, the total number of possible coalitions (combinations)
among members, including the ‘grand coalition’ and the coalition containing the ‘em-
pty set’, is 2n. Subsequently, the number of winning coalitions – for the EU Council
in our case – will be denoted by |W|. When no restrictions on coalition-formation
11 In this sense, the calculations provide ‘baseline’ estimates - almost to be compared to a regression line in
regression analysis; see Leech 2002.
12 The following axioms apply with respect to winning coalitions: (1) any coalition which contains a winning
sub-coalition is itself winning; formally, if S∈Wand S⊆T, then T∈W(monotonicity requirement); (2)
there are winning coalitions: W6=/0; (3) the empty coalition is not winning (/0 6=W). Axioms (2) and (3)
ensure that trivial games are excluded. (See van Deemen 1997). On legislatures and simple games also see
Rapoport (1970: 207-21).
84 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
are introduced, according to the ICC approach, the measure for relative efficiency,
λ
,
can simply be expressed with Coleman’s index of the power of a collectivity to act
(Coleman 1971):13
λ
=|W|
2n(2)
The analysis needs to be adapted, however, when a double-majority clause applies.
Formally, as an extension of equation (1), the double-majority requirement is given by
S∈Wiff ∑
i∈Swi≥q1∧∑
i∈Spi≥q2.(3)
Applied to the EU, q1may denote the voting weight threshold, withe voting weight
of Council member i,14 pimember i’s share in the EU population total, and q2the
second decision quotum (the threshold in terms of the required share in total EU popu-
lation). Winning coalitions in the Council under the double-majority clause, according
to equation (3), require that both decision quotas be met simultaneously.
By comparison, the Treaty of Nice has introduced a ‘triple majority clause’ (see
Felsenthal and Machover 2001): it requires a qualified majority of voting weights and,
generally, a simple majority of the EU states for decisions to pass. In addition to
this, verification could be requested that the votes represent at least 62 percent of the
EU population total. Effects of this rule have been analyzed extensively in Felsen-
thal and Machover (2001), for example, who demonstrate, inter alia, that the require-
ment regarding a majority of member states was superfluous – at least before the 2004
enlargement – since there was no winning coalition in the EU-15 that satisfied the first
two requirements while not being composed of a majority of member states.
4. Former decision rules and the Nice, Convention and Lisbon provisions
Evidently, QMV, as compared to the unanimity rule, tends to increase the Council’s
‘capacity to act’ – a point often emphasized by practitioners (e.g. Moberg 2002). Us-
ing the method of assessment applied above, how ‘efficient’ is decision-making in the
Council under the provisions of the Treaty of Nice as compared to those of the Con-
vention and its later, modified, version?
In order to allow for a comparison over time, the distribution of votes among EU
states and the QMV threshold is shown in Table 1 for the various stages in the EU’s
history (see Hosli 1993, Paterson 1997, Felsenthal and Machover 1998, 2001),15 and
includes the Nice, Convention and Lisbon provisions. As can be seen, the Nice re-
weighting of votes was the first instance of an increase in the voting weights of larger
EU states since the re-weighting of votes that accompanied the 1973 enlargement.
13 In the computer program provided by Br¨
auninger and K¨
onig (2001), this index is aptly referred to as
‘decision probability’.
14 Note, however, that according to the draft constitutional treaty as well as the Constitutional and the Lisbon
treaties, votes of EU states would be non-weighted.
15 Note, however, that the use of QMV was limited in practice because of the ‘Luxembourg compromise’.
This compromise was resorted to in the 1960s after the French ‘policy of the empty chair’ and led to the
requirementof unanimitywheneveramemberstate’s‘crucial nationalinterests’were consideredtobe atstake.
AUCO Czech Economic Review, vol. 2, no. 1 85
M. O. Hosli
Table 1. The distribution of votes and the qualified majority threshold in the Council of the EU
Pop.∗∗ 1958-
1972 1973-
1980 1981-
1985 1986-
1994 1995-
2004
Treaty of Nice Convention Lisbon Treaty
Voting
weights No. of
states Pop.∗No. of
states Pop.∗No. of
states Pop.∗
Austria 8.30 – – – – 4 10 1 1.68 1 1.68 1 1.68
Belgium 10.58 2 5 5 5 5 12 1 2.14 1 2.14 1 2.14
Bulgaria 7.68 – – – – – 10 1 1.55 1 1.55 1 1.55
Cyprus 0.78 – – – – – 4 1 0.16 1 0.16 1 0.16
Czech
Republic 10.29 – – – – – 12 1 2.08 1 2.08 1 2.08
Denmark 5.45 – 3 3 3 3 7 1 1.10 1 1.10 1 1.10
Estonia 1.34 – – – – – 4 1 0.27 1 0.27 1 0.27
Finland 5.28 – – – – 3 7 1 1.07 1 1.07 1 1.07
France 63.39 4 10 10 10 10 29 1 12.80 1 12.80 1 12.80
Germany 82.31 4 10 10 10 10 29 1 16.62 1 16.62 1 16.62
Greece 11.17 – – 5 5 5 12 1 2.26 1 2.26 1 2.26
Hungary 10.07 – – – – – 12 1 2.03 1 2.03 1 2.03
Ireland 4.31 – 3 3 3 3 7 1 0.87 1 0.87 1 0.87
Italy 59.13 4 10 10 10 10 29 1 11.94 1 11.94 1 11.94
Latvia 2.28 – – – – – 4 1 0.46 1 0.46 1 0.46
Lithuania 3.38 – – – – – 7 1 0.68 1 0.68 1 0.68
Luxembourg 0.48 1 2 2 2 2 4 1 0.10 1 0.10 1 0.10
Malta 0.41 – – – – – 3 1 0.08 1 0.08 1 0.08
86 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
Pop.∗∗ 1958-
1972 1973-
1980 1981-
1985 1986-
1994 1995-
2004
Treaty of Nice Convention Lisbon Treaty
Voting
weights No. of
states Pop.∗No. of
states Pop.∗No. of
states Pop.∗
Netherlands 16.36 2 5 5 5 5 13 1 3.30 1 3.30 1 3.30
Poland 38.13 – – – – – 27 1 7.70 1 7.70 1 7.70
Portugal 10.60 – – – 5 5 12 1 2.14 1 2.14 1 2.14
Romania 21.57 – – – – – 14 1 4.36 1 4.36 1 4.36
Slovakia 5.39 – – – – – 7 1 1.09 1 1.09 1 1.09
Slovenia 2.01 – – – – – 4 1 0.41 1 0.41 1 0.41
Spain 44.47 – – – 8 8 27 1 8.98 1 8.98 1 8.98
Sweden 9.11 – – – – 4 10 1 1.84 1 1.84 1 1.84
United
Kingdom 60.85 – 10 10 10 10 29 1 12.29 1 12.29 1 12.29
Total 495.12 17 58 63 76 87 345 27 100 27 100 27 100
Qualified
Majority
Threshold –12
70.6% 41
70.7% 45
71.4% 54
71.1% 62
71.3% 255
73.9% 14 306.98
62% 14 297.08
60% 15
55% 321.83
65%
Source: Updated from Hosli (1993).
* Population figures 2007 (from Eurostat), in percent.
**Population figures 2007 (from Eurostat), in millions.
AUCO Czech Economic Review, vol. 2, no. 1 87
M. O. Hosli
In a surprisingly regular pattern, moreover, the voting threshold for QMV, since
the end of the 1950’s, stayed constant at about 71 percent of the weighted vote total
(Hosli 1993). By comparison, the Convention proposal constituted a radical departure
from the traditional pattern by allocating one vote to each EU member state. An ad-
ditional population criterion (62 percent) was first introduced by the Treaty of Nice
and modified (to 60 percent) by the Convention proposal. The IGC that followed the
Convention raised this threshold to 65 percent (in addition to a 55 percent clause as
regards the required share of member states to support a proposal).
Applying the methodology described above, Table 2 gives an overview of the pro-
portion of winning coalitions in the Council that can form when coalition-formation is
considered to be non-restricted (ICC assumption), for each stage in the EU’s history.
In addition, it shows the consequences of the provisions contained in the Nice Treaty
and the Convention and Lisbon Treaty clauses, respectively. To allow for comparison,
Table 2 also provides the respective number of possible winning coalitions under the
unanimity requirement.
Increased membership, as Table 2 illustrates, appears to have considerably reduced
the Council’s capacity to act under the unanimity requirement – as it applied regard-
ing decisions taken either on the basis of the ‘Luxembourg compromise’ or decisions
formally requiring unanimity (such as taxation). Under the unanimity rule, assuming
ICC, one in 64 coalitions (1.56 percent) is winning in the framework of a six-member
committee, whereas this proportion decreases to one in 32 768 (or 0.0031 percent)
in an institution encompassing fifteen members, implying a significant change in the
‘betting odds against passing’,16 again assuming ICC. With twenty-seven members,
decision probability has decreased to one in 227, implying that evidently, reaching una-
nimity has become much harder in the enlarged EU in practice.
These figures appear to be rather abstract and to underestimate the actual proba-
bilities of legislative acts to be adopted. Preference constellations in which EU states
do not decide to either agree or disagree with a general probability of one-half may
certainly render predictions as regards decision probability more ‘optimistic’. In this
respect, the figures provide a ‘worst case reference scenario’. However, intuitively,
it is certainly plausible that it is easier to reach agreement among three players than
among ten, for example, although situations can of course be imagined in which the
reverse holds true (depending on the specific distribution of players’ preferences). In
this sense, the figures provided in Table 2 give simple ‘averages’, indicating the a priori
chances of forming various winning coalitions when all member choose to either sup-
port or decline a proposal independently, based on the decision weights and thresholds,
and ignoring any other information (such as specific preference constellations). In this
sense, the figures indicate simple trend lines regarding the extent to which decision-
making may become more tedious with enlargement.
How has decision probability changed in the framework of QMV over time? Since
the QMV threshold, historically, remained at about 71 percent with each enlargement,
one would expect that ‘decision probability’ – measured as the share of winning coali-
tions in all possible coalitions among members – would have remained largely constant
16 This term is adopted from Hosli and Machover (2004).
88 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
Table 2. The capacity of the Council to act under QMV and unanimity (Coleman’s measure of the power of a collectivity to act)
1958-
1972 1973-
1980 1981-
1985 1986-
1994 Since
1995 Nice
Triple Majority Convention
Double Majority Lisbon Treaty
Double Majority
No. of member states 6 9 10 12 15 27 27 27
No. of possible coalitions 2629210 212 215 227 227 227
QMV
No. of winning coalitions 14 75 140 402 2 549 2 718 740 29 381 273 17 233 337
Decision probability∗21.88 14.65 13.67 9.81 7.78 2.23 21.89 12.84
Unanimity
No. of winning coalitions 1 1 1 1 1 1 1 1
Decision probability∗1.563 0.195 0.098 0.024 0.003 0.00000000745 0.00000000745 0.00000000745
* Decision probability is defined as the share of winning coalitions in all possible coalitions (in percent).
AUCO Czech Economic Review, vol. 2, no. 1 89
M. O. Hosli
over time. However, this intuition is misleading, as Table 2 clearly illustrates. The
overview shows that a decrease in the Council’s capacity to act under QMV should
be expected to have occurred between 1958 and the present, as the share of winning
coalitions in the total that could be formed among member states was more than one
in five (21.9 percent) in the first phase of the Community’s existence, 14.7 percent
after the 1973 enlargement and lower ever since: between 1981 and 1985, the share
was 13.7 percent, with a subsequent drop to 9.8 percent (1986–1994). In the 1995
to 2004 constellation of EU membership, the ratio of winning coalitions to all coali-
tions that could be formed under QMV among the 15 member states, assuming ICC,
was 7.8 percent.17 The change, as compared to unanimity, is much less dramatic, but
significant nonetheless. The provisions according to Lisbon Treaty lead to a capacity
of the Council to act – here based on calculations for the twenty-seven EU states –
comparable to the 1981 to 1985 situation within the European Community. Clearly,
reaching unanimous agreement within the enlarged EU has become significantly more
difficult, providing further incentives to apply QMV instead of unanimity provisions
in EU decision-making.
Of course, decision-making can still be swift if enlargement is paralleled by a con-
vergence of preferences, thus maintaining the same ability of the Council to act. This
claim would be in agreement with Golub’s empirical analyses (Golub 1999, 2002,
2007). Accordingly, when members’ preferences are relatively close to each other, it
may be possible that it is rather easier to agree, even when the group size expands.
Under the provisions of the Nice Treaty and with twenty-seven EU member states,
the Council’s decision probability under QMV decreased to just 2.2 percent. By com-
parison, under the provisions foreseen by the Convention (again assessed for 27 EU
states), it would have remained remarkably flexible with 21.9 percent, reaching a de-
cision probability almost equal to that attained in the 1958–1973 phase. Under the
provisions of the Lisbon Treaty, with an EU consisting of twenty-seven member states,
decision probability is again somewhat lower than in the 1981–1985 phase.
Effects on decision probability, however, are not the only consequences of the re-
cent suggestions for voting weight adaptations. Clearly, in addition to this, distribu-
tional effects materialize. Recent political discussions have focused on the effects the
provisions of the Nice Treaty and of the Lisbon Treaty would generate regarding the
balance of influence among EU states in the Council of the EU. Since these respective
calculations use similar tools to those applied above, Table 3 applies a prominent power
index – the normalized Banzhaf index – in order to indicate the current distribution of
a priori influence among EU states in the Council18 and the effects generated by the
Nice, Convention and Lisbon Treaty proposals on this distribution.19
17 On these figures e.g. see Hosli (1998).
18 The provisions of the Lisbon Treaty are likely to only become effective as of 2017. The calculations
provided here do not account for additional blocking possibilities by a limited number of EU states (e.g. the
four-member blocking minimum requirement incorporated into the provisions of the Constitutional Treaty),
as their effects are very small in practice. Neither does it account for the possibility that the earlier Ioannina
compromise, demanding prolonged negotiations when a given number of EU states oppose a proposal, might
become effective again in the future.
19 For helpful information on the characteristics of various power indices, e.g. see Pajala et al. (2002). For
the introduction of a new measure of voting power, see Turnovec (2007).
90 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
Table 3. Relative power of EU states in the Council: EU-15 and EU-27
(normalized Banzhaf index)
EU-15
(1995–2004)∗Nice
Treaty∗∗ Convention∗∗ Lisbon
Treaty∗∗
Germany 11.16 7.78 11.59 12.39
Italy 11.16 7.78 8.51 8.85
Spain 9.24 7.42 6.61 6.85
Poland – 7.42 5.66 6.29
Romania – 4.26 4.14 4.00
Netherlands 5.87 3.97 3.50 3.38
Greece 5.87 3.68 2.87 2.76
Belgium 5.87 3.68 2.81 2.69
Czech Republic – 3.68 2.80 2.68
Portugal 5.87 3.68 2.77 2.65
Hungary – 3.68 2.74 2.62
Sweden 4.79 3.09 2.63 2.50
Austria 4.79 3.09 2.53 2.41
Bulgaria – 3.09 2.46 2.33
Slovakia – 2.18 2.19 2.06
Denmark 3.59 2.18 2.18 2.05
Finland 3.59 2.18 2.17 2.04
Ireland 3.59 2.18 2.05 1.92
Lithuania – 2.18 1.94 1.81
Latvia – 1.25 1.81 1.67
Slovenia – 1.25 1.78 1.64
Estonia – 1.25 1.69 1.56
Cyprus – 1.25 1.63 1.49
Luxembourg 2.26 1.25 1.59 1.45
Malta – 0.94 1.58 1.44
Total 100 100 100 100
* Calculations based on population size in 2003.
** Calculations based on population size in 2007.
Clearly, compared to the rules of the Nice Treaty, the Convention proposal would
have increased the power of larger states in EU decision-making.20 Similarly, com-
pared to Nice, the Lisbon Treaty provisions change the balance of a priori voting power
in the Council by increasing the influence of the largest states, to the detriment of the
middle-sized EU members. Even though the Convention proposal would have conside-
rably increased collective decision probability within the Council, this ‘balancing’ of
influence among EU states may have been a major rationale for why the EU summit in
December 2003 on this proposal failed: the relative influence of states in the Council –
20 In interpreting the results of Table 3, it has to be kept in mind that each enlargement usually generates a
relative decrease in the power of states that are already EU members’. In this sense, an increase in the relative
power of Germany, for example (from 11.16 percent to 11.59 percent according to the Banzhaf index), is
fairly extensive.
AUCO Czech Economic Review, vol. 2, no. 1 91
M. O. Hosli
including the ‘almost largest’ ones – on the basis of the distribution of voting weights,
is indeed core to governments’ EU institutional interests.
Hence, the Convention succeeded in formulating provisions to enhance the capacity
of the Council to act but with this, it lowered the ability of individual governments
to block collective EU decisions, and offered a re-balancing of influence within the
Council notably in favor of the larger EU states. By comparison, the provisions of
the adapted Constitutional Treaty – incorporated into the more recent Lisbon Treaty
– amplify this latter effect. Overall, compared to the current voting system in the
Council (based on the Nice Treaty scheme), larger states tend to win with both the
Convention proposal and the provisions as incorporated into the Lisbon Treaty. By
comparison, collective decision-making capacity has been reduced with the Lisbon
Treaty as compared to the Convention, but is still considerably above the level of the
(present) Nice Treaty rules.
5. Conclusions
This paper shows that the choice of a decision rule for the Council of the EU constitutes
a trade-off in terms of decreased sovereignty for individual governments versus an
increased ‘capacity to act’. This trade-off is well known from the various debates about
moving from the unanimity rule to QMV in some important policy fields, including
foreign and security policy, and taxation.
The relevant decision rules will not only matter regarding ‘day-to-day’ decisions
in the EU Council, however. Supporting general intuition, this paper provides back-
ground calculations which indicate that, with a significantly expanded membership,
the EU indeed risks being unable to reach intergovernmental agreement. Accordingly,
a challenging issue for the EU is to move towards provisions allowing for its own con-
stitution, if ever adopted, to be amended: again, the trade-off between state sovereignty
and the EU’s capacity to act is at the core of this dilemma.
In view of recent and likely future enlargement, the EU, without adaptations of
its decision rules – within the Council as well as in view of possible future ‘consti-
tutional change’– risks paralysis of its own system. The European Convention has
come up with an ingenious design that would, as this paper demonstrates, indeed have
considerably enhanced the capacity of the EU Council to act. Given increased in-
volvement of the EP in EU-decision making over time, this might have been a helpful
instrument to avoid excessive status quo bias in EU decision-making. However, this
change would also have strongly increased the relative influence of larger states in EU
decision-making – an effect that will, however, also materialize under the provisions
of the Lisbon Treaty. Accordingly, the Convention and Lisbon provisions protect the
interests of the largest, and in fact also the smallest members in the EU, but lower
the protection of the interests of medium-sized EU states. By contrast, the provisions
according to the Treaty of Nice, which implemented a triple-majority rule in Council
decision-making, led to a more moderate ‘re-balancing’, but clearly lowered the Coun-
cil’s overall capacity to act. The Lisbon Treaty provisions, compared to the Convention
proposal, generate a more moderate increase in the Council’s capacity to act.
92 AUCO Czech Economic Review, vol. 2, no. 1
Council Decision Rules and European Union Constitutional Design
Findings presented in this paper are not uniformly plausible intuitively. Back-
ground calculations are needed in order to discern the effects not only of different
vote allocation schemes, but also of various other elements needed to form winning
coalitions in the Council (such as, regarding the ‘institutional skeleton’, the number of
EU states, the required population threshold and qualified majority of voting weights).
The findings of this paper have profited from the fact that programs readily available
on the internet, especially ‘Indices of Power’ (K¨
onig and Br¨
auninger 2001) and ‘Po-
werslave’ (Pajala et. al. 2002), make calculations, even for twenty-seven or more EU
member states, relatively simple exercises to undertake. The results presented in this
paper partially corroborate findings presented elsewhere (e.g. Hosli 1998, Felsenthal
and Machover 1998, Federer et al. 2003, Felsenthal and Machover 2003). In spite of
a number of critiques that have been leveraged against techniques that analyze voting
power and decision probability (e.g. Albert 2003), such tools may indeed still be useful
(e.g. Baldwin et al. 2001, Felsenthal et al. 2003) in assessing some basic institutional
challenges facing the EU in view of considerable enlargement.
Reflecting on the results presented in this paper, the EU has managed to adapt its
day-to-day decision-making rules in view of the challenge of considerable enlarge-
ment. But with the latest Treaty revisions, it has empowered its largest members. It
has also managed to enhance the decision capacity of the Council of the EU, at least
under the respective QMV decision rules. But with these changes, it now gives less
‘voice’ to medium-sized EU states, in the EU-27 and beyond.
Acknowledgment Earlier versions of this paper have been presented at various aca-
demic conferences and a preliminary version was published in the form of a working
paper by the Institute for Advanced Studies, Austria (Reihe Politikwissenschaft 97).
For helpful comments, I would notably like to thank Pieter Bakker, Martin Gregor,
Iain Paterson, Bˇ
ela Plechanovov´
a and an anonymous reviewer.
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