Jean Monnet Center at NYU School of Law


1. Functionality

The transition from unanimity to qualified-majority decision on the Council counts as the central means to secure the Union's functional capacity with the increasing number of members. Delays and blockages by a few Member States, or even a single one, ought to be prevented, and majority decision indeed compels the individual Member States to greater elasticity. No one wants to belong to the outvoted minority, thus respective preferences will be weighed up, and possible coalitions with other countries will be contemplated. But decisions by qualified-majority do not replace the search for as broad a consensus as possible. The majority rule is only a technical means of shortening negotiations in order to reach consensus.

The Union's functionality will not be assured by the possibility of deciding on a growing range of situations by qualified-majority, but by the bringing about of a willingness to decide. The members must be willing to decide on a particular Commission proposal. The willingness of the individual countries to decide is brought about in their capitals, before Council meetings and in parallel with the Commission's work. In order to attain it, the Union has two consensus-producing bodies available: the Commission on the one hand, and the Joint Committee of Permanent Representatives of Member States to the Union (COREPER) on the other. In working out its proposals, the Commission enters into extensive deliberative co-ordination processes with the governments, the associations involved and the Parliament, and mediates between differing viewpoints and lobbies to get its proposal accepted. While the Commission decides independently and bindingly, it knows that its submissions can become effective only if they secure acceptance from Member States. In the Joint Committee, the government representatives to the EU constitute a `consensus engine' switched in after the Commission, and not only harmonise their governments' instructions with the Commission and the representatives of other Governments beforehand, but also calculate the chances of securing a majority for their governments' instructions. Being constantly in touch with the Brussels communication process, they can advise their governments to show elasticity on particular points, and join the winning majority by forming coalitions with other Members on the Council. The COREPER is the diplomatic hinge between the Ministries and the Council. Not only does it decide autonomously on the mass of routine matters before the Council, but it also informs the various voting Ministers, points out the likely conflicts in the Council, and provides a link between the home governments and the specific rationality criteria in Brussels.

Functionality is not just a question of efficient rules of decision, but of well-prepared, co-ordinated production of willingness to decide. It should not be believed that qualified-majority decision will guarantee the Union's functionality by itself. It is not the decision-making process that is the main problem, but getting countries to agree. This is achieved through acceptance of European rationality criteria that emerge not only from national-interest positions but from the cognitive structuring of `European' problems and ways of solving them. This is the Commission's task in working out its proposals, and a task that is grounded in the judgments of the European Court of Justice. Both of these `operationalise' Europe. The formal majority principle does not replace the principle of substantive consensus. Europe arose from consensus. The continual exclusion of states through the qualified-majority principle would endanger further development. Moreover, extending the list of issues to be decided by majority will not remove the unanimity requirement on central questions either. Controversial, weighty problems where the Council cannot, or will not, arrive at a decision can be brought before the European Council where the unanimity principle applies. Blockages can arise there, too, as France's rejection of the Agenda 2000 agricultural reform shows, as does the impossibility of reducing the rebate granted to Britain on its membership contributions again, unless Britain agrees. Europe is a regime of concordance. Institutional reforms ought not to seek to change this, since the basis for legitimation lies in consensus.



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