The flexibility of constitutional design: enlargement and the Council of the European Union

Abstract

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'. The provisions of the draft constitutional treaty would considerably increase constitutional flexibility regarding day-to-day decision-making in the EU, but without adequately protecting the interests of the citizens of smaller and medium-sized member states. By comparison, provisions foreseen in the Treaty of Nice, which essentially amount to the implementation of a 'triple-majority rule' in Council decision-making, would lower the Council's capacity to act, but would lead to a more moderate 're-balancing' in favor of larger EU states. Finally, the paper provides background calculations indicating that, with twenty-five member states, the EU risks being unable to reach intergovernmental agreement and hence, a challenging issue for the EU is to move towards provisions allowing for its own constitution, once adopted, to be amended.