Tsebelis G. Veto Players: How Political Institutions Work

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The codecision II procedure eliminates the second path of codecision I, and considers the

failure of the conciliation committee to reach an agreement equivalent to the abortion of a bill.

There are two different interpretations of codecision I and codecision II. One considers that

powers shifted away from the Council from Codecision I to Codecision II, the other argues that

this difference is only in the formal rules, but not in reality.

In a series of articles (Garrett (1995b), Tsebelis (1997), Garrett and Tsebelis (1996),

(1997)) Geoffrey Garrett and I have made the argument that since the Council essentially decides

which of the possible two endings of Codecision I will be selected (the Council can lead the

conciliation committee to reach an agreement or not), in Codecision I the Council can ultimately

make a take or leave it offer to the Parliament. The transition from cooperation to codecision

entailed the Parliament’s exchanging its conditional agenda setting power for unconditional veto

power. The impact of the exchange of conditional agenda setting (cooperation) for unconditional

veto (Codecision I) varies with the relationship between the Parliament’s preferences and those

of members of the Commission and the Council. If the EP and the Commission have similar

positions (and so long as the members of the Council have different preferences themselves) the

swap of the conditional agenda setting under cooperation for the unconditional veto of

Codecision I was a bad deal for the Parliament – and for the pro-integration agenda. If on the

other hand the Commission disagrees with the EP, or if the Council is unanimous, the EP has no

conditional agenda setting powers, and consequently it is better off with a veto.

A different argument is presented by Corrbett (2001a) and Hix (2001). They argue that

because of the adoption of Rule 78 by the EP (see discussion above), the EP had de facto

modified the rules of the interaction, and eliminated the possibility of the Council to make take it

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or leave it offers to the EP. Consequently, Codecision II simply recognized what was already in

practice since Codecision I.

Regardless of this difference, there is wide agreement that under Codecision II the EP is a

co-equal legislator with the Council. The reason is that the Council can no longer overrule the EP

(not even unanimously, as in cooperation) and no longer can it present take-it-or-leave-it

proposals to the Parliament (as was the case under the Maastricht Treaty). Rather, Council and

Parliament must bargain on equal footing over the final legislative outcome, with no a priori

bargaining advantage inhering to either institution.

So, the only difference remaining in the literature on Codecision I and Codecision II is

whether there was a significant shift of power in favor of the EP in Amsterdam, or whether this

shift had already been achieved unilaterally with the adoption of Rule 78. We will return to this

point in the last section of this chapter.

The Nice Treaty modified the majority requirements of the codecision procedure, and

introduced a triple majority in the Council. This modification is equivalent to increasing the

number of veto players in the system.

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As a result decision-making in the EU becomes more

difficult, and policy stability increases.

What is interesting to note in these discussions is that different analyses disagree with

respect to “nominal” or “actual” rights of different institutions, whether decisions are made under

complete or incomplete information, in one or multiple dimensions. Some readers may find these

questions important, and others too “technical.” For the latter, I have to point out that EU

institutions are complicated, and these details have significant consequences on the distribution

of power and on policy outcomes. Be that as it may, the more general picture is that the questions

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More accurately, it will increase the distances among existing veto players. If additional veto players have

smaller distances from the existing ones they will be absorbed, and if they are further away from the existing ones

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asked and the inferences made in all these pieces of literature are on the implicit or explicit basis

of questions studied by the veto players theory: who are the veto players, how do they decide,

who controls the agenda, and how much.

b. Legislative procedure consequences on bureaucracies and the judiciary

Legislative decision-making in the EU changed in several dimensions: it started by

unanimous decisions by the Council, then moved to a qualified majority inside the Council along

with agreement of the other two institutional legislators (Commission, and EP), then it moved

(and remains today) into a codecision stage where an agreement by the EP and the Council are

sufficient for decisions to be adopted.

All these changes have effects on the number and the ideological distances of veto

players, and as a consequence and for the reasons we have seen in Chapter 10 they are likely to

affect the discretion of bureaucrats and judges. Since the legislative procedures are quite

complicated, we will have to look at the identities and distances of veto players more closely. I

will start with a more realistic representation of policy dynamics in the EU than the simplistic

version I started with in Figure 1. I will make use of a two-dimensional figures (Figure 2 and

Figure 3) for at least two reasons. First, because as I have argued a one-dimensional

approximation may be misleading. Second, because many important policy disputes in the

contemporary EU appear to take place in an at least two-dimensional issue space – one

dimension describes their preferences for more regional integration; the other is more akin to a

traditional left-right cleavage (most notably on regulatory matters). (Hix (1999), Kreppel and

Tsebelis (1999)). The analysis that follows is based on an article by Tsebelis and Garrett (2001).

INSERT FIGURE 11.2 HERE

they will not be absorbed.

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The locations of the actors in Figure 11.2 represent plausible general preference

configurations in these two dimensions. In both cases the Council and the Parliament are likely

to be the more “extreme” actors, whereas the Commission is likely to be positioned somewhere

in between them. On the left-right dimension the Commission is more likely to be closer to the

national Governments that appoint the Commissioners; on the integration dimension, however,

the Commission and the EP are more likely to be allied as pro-Europe actors.

What emerges from these assumptions is that the locations of the three actors represent

the corners of a triangle. Theoretically, this is the most general representation of all cases in

which the three actors can have any position with respect to each other – except where two of

them have identical or positions

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, or where one of them is located exactly on a straight line

connecting the central points of the other two. It should be emphasized, therefore, that the

analytic thrust of this analysis holds regardless of the relative position of actors.

INSERT FIGURE 11.3 HERE

Let us now rotate Figure 11.2 by 45 degrees (for presentational purposes only), and

incorporate the fact that the all three institutional actors are in fact multimember bodies deciding

by simple, absolute or qualified majorities (Figure 11.3). I present the preferences of a

Parliament made up of 9 members to characterize what is a de facto super-majority threshold for

voting in the Parliament under the absolute majority requirements for passage in the second

reading of legislative bills. I incorporate this restriction into our model by requiring a majority

higher than 5/9 for a bill to be adopted. As a result in Figure 3 there is no majority to the left of

line E1E5, no majority above line E3E8 etc.

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As a result of this de facto supermajoritarian

requirement there are some points located centrally in the EP that cannot be defeated by the

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This was the case I presented in Figure 1. Even in the two dimensional Figure the Commission and the EP had

almost identical positions.

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required qualified majority. The Commission is presented with three members, deciding by

majority of its members (two out of the three) since this is the formal decision rule for the

College of Commissioners. Finally, again I analyze a seven member Council where five of its

members represent the required qualified majority for decision-making.

The central feature of Figure 11.3 is its description of the “core” of the EU’s legislative

institutions under the various legislative procedures. The core of a legislative rule is the set of

outcomes that cannot be overruled by the application of that rule. The core of the EU’s different

legislative procedure describes the discretionary space available to the Commission in the

implementation of legislation, and to the Court in statutory interpretation. As I have

demonstrated in Chapter 2, the propositions that follow generalize to more than two dimensions,

even if the core does not exist.

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It also assumed that the outcome of legislative interactions – in

the long run – will select points inside the core. Indeed, no matter what the decision making rule

is, some point inside the core can always defeat any point outside the core. Thus, in equilibrium,

we would expect the legislative status quo to be inside the core, even if at particular times the

actors cannot agree to such a move.

Let us begin by briefly reinterpreting political dynamics where the Council decides by

unanimity. In such cases, a unanimous Council is required for a change of the legislative status

quo. Any point inside the C1 … C7 heptagon cannot be modified by unanimity because at least

one member of the Council would object to any change in the status quo. The hatched area in

Figure 11.3 (regardless of its shade) is thus the core of unanimity-based legislative procedures

(and for treaty revisions). Turning to discretion, the Commission and the Court could therefore

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Since there are only five points in the specified directions and the requirement is more than 5/9 of the votes.

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The core formally ceases to exist if one sufficiently increases the dimensionality of the policy space. However,

we have seen in Chapter 10 that one can make similar arguments on the basis of veto players even when the core

ceases to exist.

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effectively implement or interpret a given piece of legislation (the status quo) in any way they

wish – so long as the ensuing policy outcome remains within the core. This would be true even if

the Commission’s implementation or the Court’s interpretation were inconsistent with the

Council’s intent when it passed the legislation.

The final observation concerns the spatial location of actors. It is obvious that preference

convergence (e.g. if C1-C7 were clustered more tightly under unanimity, or if the distances

among Council, Parliament and Commission shrank) would reduce the core and hence the scope

of discretion in implementation and adjudication as well. Increasing heterogeneity would have

the opposite effect. In the context of the EU, adding new members to the EU might be expected

to increase heterogeneity in some cases (the southern accessions and, in the future, those from

eastern Europe

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), but decrease it in others (Austria, Finland and Sweden, on many issues).

Moreover, there might be reasons to expect the distance among the institutions to be reduced, for

example if citizens come to hold their MEPs more accountable (and then vote the same way in

national and EP elections).

Here I will hold preferences constant and analyze differences in the cores of EU

legislation – and hence the scope for bureaucratic and judicial discretion – in terms of the

procedures used to aggregate the preferences of legislative actors. Legislation can pass under the

consultation and cooperation procedures in two ways. A decision can be taken with an agreement

of the relevant actors, or by unanimity in the Council (acting alone). For consultation the

“relevant actors” are a qualified majority of the Council and a majority of the Commission. For

cooperation an absolute majority of the EP should be added to this list. Figure 11.3 has already

shown the unanimity core of the Council. What constraints does the alternative rule (agreement

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Bednar, Ferejohn and Garrett 1996.

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of Commission for consultation, or the Commission and the Parliament for cooperation) impose

on policy discretion?

I concentrate on the cooperation procedure because of the additional complexities

generated by the participation of the Parliament in legislation. Recall that we are assuming that

the absolute majority requirement in the Parliament creates a de facto supermajority threshold of

more than 5/9ths. In Figure 11.3, the 5/9ths core of the EP can be identified. Following the

procedure described in Chapter 6, I connect each EP member with another so that three other

members are on one side of the line and the other four members on the other side. Such lines are

the pairs E1E5, E1E6, E2E6, E2E7 etc. These lines define a polygon inside E1…E9. This is the

Parliament’s core under absolute majority. Call this specific set of outcomes the “5/9 EP core.” It

is obvious that the EP cannot modify anything located in that core – even if it could act alone,

without the support of the Council or Commission. The reason is that there is a majority of more

than 5/9ths against moving away from any particular point of this nine-sided polygon. Similarly

there is a core for the Council when it decides by 5/7 QMV. As Figure 3 indicates (and for

similar reasons as for the Parliament) this “QMV core” is a heptagon located inside C1...C7.

The lightly shaded area of Figure 11.3 – connecting what turns out to be the decisive

Commissioner (#1) with the extreme points of the EP’s 5/9ths core and the Council's QMV core

– is thus the core of legislation requiring a qualified majority in the Council, an absolute majority

in the EP and a simple majority in the Commission.

But this is not the core of the cooperation procedure because a unanimous Council can

also pass legislation. The core of cooperation is thus defined as the intersection of the unanimity

core of the Council (the hatched area) and the inter-institutional core (the shaded area). In the

figure, the crosshatched area denotes this cooperation core. Note that this area is always smaller

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than the Council’s unanimity core (which readers will recall defines the room for policy

discretion under the Luxembourg compromise, treaty revisions and legislation still subject to

unanimity voting).

It is easy to calculate the consultation core, which is simply a subset of the cooperation

core – since the salient difference between the two procedures is that the agreement of the EP is

not required. This consultation core is represented in Figure 3 by the most heavily hatched area

(regardless of shade).

If the Commission or the Court wants to make a decision that will not be overruled under

the cooperation procedure, they can implement and interpret legislation anywhere within the

crosshatched area. How big this area is, of course, depends on the relative position of the

Commission and the EP with respect to the Council (and the cohesion of individual actors’

preferences in these institutions). If, for example, the Commission were located close to E3, the

core would shrink. One may think that given the selection mechanism for the Commission (that

requires approval by both the Council and the Parliament) this is the most realistic position of the

three actors most of the time. The core would expand, however, if the Council was located

between the Commission and the EP.

Both versions of codecision specify that at the end of the legislative game, an agreement

by a qualified majority of the Council and an absolute majority of the EP can overrule other

actors. In particular, they can bypass the Commission. Consequently, the heavily shaded area of

Figure 3 that connects the 5/9ths EP core and the 5/7ths Council core represents the core of

Codecision (I and II). The greater are the policy differences between the Council and the EP (and

the greater the preference dispersion inside these institutions), the greater the size of the core,

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and hence the greater the discretion available to the Commission in policy implementation and

the Court in statutory interpretation.

INSERT FIGURE 11.4

Figure 11.4 focuses on the effects of the Nice Treaty. As I discussed in section 2 the

qualified majority threshold slightly increased, and the preferences of the new countries are

likely to be less homogenous than those of the current 15 members. Both these changes tend to

increase the core of the Council. However, here I will focus on the other two modifications, the

requirement that legislation be supported by a majority of the countries members, and the

requirement that winning proposals should be supported by countries totaling at least 62% of the

EU population. Figure 11.4 starts from the core of the codecision procedure before Nice (as

presented in Figure 11.3), and compares it with the core after.

Because of the required triple majority in the Council, some of the qualified majority

dividers under Amsterdam are replaced. For example, let us assume that C2C6 in Figure 11.4

does not fulfill one of the two additional requirements. In order to calculate the qualified

majority core of the Council, this line has to be replaced by the actual qualified majority dividers.

Let us consider that these lines are C2C7, and C1C6.

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Recalculating the core of the Council

under these assumptions indicates that it expands as Figure 11.4 indicates. As a result, the core of

the EU legislative procedures expands also.

Why did the countries members of the EU select such a convoluted process. Tsebelis and

Yataganas (2001) trace the Nice negotiations and demonstrate that the large countries were

essentially satisfied by the qualified majority decision-making in the Council, while the small

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These lines should go further away from the center of the yolk in order to fulfill the additional requirements. It is

possible that even these lines would not fulfill the additional requirements, and one would have to move to the lines

C2C1, C1C7, and C6C7. In this case the difference between Amsterdam and Nice would be even more pronounced

than the one I am about to describe.

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countries wanted a to introduce a majority of countries requirement in order to increase their

weight in the Council. The terms of this debate take us back to the differences between

Condorcet and Madison with respect to qualified majority and bicameralism that we discussed in

Chapter 6. Instead of resolving the issue Nice adopted all possible criteria, resulting to an

overwhelming expansion of the legislative core.

There is one more expectation resulting from the Nice Treaty that we should underline.

Because the core of the Council expands, policy stability in the Council increases, and

consequently it is more difficult for the Council to change the status quo or its previous position.

As a result, in the conciliation committee of codecision, it will be more difficult for the EP to

make the Council alter its previous positions, which implies at the institutional level a shift of

power towards the Council (see Figure 6.3 and the discussion around it).

In conclusion, the Nice Treaty expands further the size of the Council core, and the EU

core. The result of these modifications is a shift of legislative power in favor of the Council, and

an increase in the discretion of the Commission and the Court resulting from the reduced

capacity of the EU to legislate. It is important to note that in the above discussion just like in

Chapter 10 “discretion” refers to the behavior of the Commission and the Court, not to the

institutional rules regulating their activities.

On the subject of institutional rules regulating bureaucratic behavior, Francino (2001) has

argued that when the legislative branch cannot overrule bureaucratic behavior (when the core of

the EU is large), then they will be more restrictive ex ante, that is, they will write the legislation

in a way of reducing Commission discretion. I have discussed this point in Chapter 10.

4. Empirical Evidence