Mathematical Social Sciences 63 (2012) 74–77

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Mathematical Social Sciences

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Finding the balance of power in a post-national democracyAndrew Duff ∗

European Parliament, 60, Rue Wiertz 10 G 346, B-1047 Brussels, Belgium

a r t i c l e i n f o

Article history:Available online 24 December 2011

a b s t r a c t

This article describes the historical background and the political context of the debate about seatapportionment in the European Parliament, and summarises the current reform proposals. The authorhas been the Parliament’s rapporteur on electoral reform since 2004.

© 2011 Elsevier B.V. All rights reserved.

1. Historical background

The apportionment of seats in the European Parliamentbetween the member states of the European Union was for manyyears rather an uninteresting political subject. Although therewere sensitive issues surrounding the initial balance to be struckbetween the three Benelux countries, once an overall consensushad been reached, it proved durable. Besides, one might add, inthe early years the Parliament had too little real power to make itsprecise composition a matter for more than academic discussion.

What changed all this was the fall of the Berlin Wall and thereunification of Germany in 1989–90. Suddenly the disparity interms of population size between Germany (78 million) and thethree other larger states (56–57 million) could not be ignored. TheTreaty of Maastricht gave 18 extra seats to Germany and only sixeach to France, Italy and the United Kingdom. At the same time,the prospect of the imminent enlargement of the Union to includecountries of Central and Eastern Europe inevitably raised morequestions about the future composition of the Parliament.

The closing stages of the Nice Intergovernmental Conference(IGC) in December 2000 were marked by a bruising row over theredistribution of seats in the Parliament. In the early hours of thelastmorning of the IGC, once other institutional questions hadbeensettled, seats were traded between the heads of government likecasino chips. In the end, it was agreed that the size of the House for2004–09 would grow to 732 seats: Germany retained 99, France,Italy and theUKmaintained parity on 78, and Spain and Poland had54 each. (Later, upon the accession of Bulgaria and Romania, it wasagreed that from 2009 there would be 736 seats: again Germanywas to retain 99, France, Italy and the UK were to fall to 72 each,with Spain and Poland equal on 50.)

Parallel to these negotiations on numbers of MEPs went theargument about the balance among states in the other institutions.

∗ Tel.: +32 0 2284 7998; fax: +32 0 2284 9998.E-mail address: andrewduffmep@gmail.com.

0165-4896/$ – see front matter© 2011 Elsevier B.V. All rights reserved.doi:10.1016/j.mathsocsci.2011.11.007

In 2004 Germany, France, Italy, Spain and the UK lost theirsecond member of the European Commission. The four largeststates maintained parity in terms of voting weight in the Councilof Ministers until the Treaty of Lisbon which introduces (butonly as from 1 November 2014) a new system under which aqualified majority will be formed, as a general rule, by 55% ofstates representing 65% of the total EU population. This is not theplace to discuss in detail the complex and in many cases heateddiscussions behind these solemn decisions which shift the balanceof power among the states and, indeed, between the states andthe EU institutions. But it is worth recalling in considering thematter of Parliamentary seats in an academic context that broaderpolitical and inter-institutional considerations were and remainrelevant.1 How to reach and maintain an acceptable balance ofpower between states of very varied sizes of population is aconstant lively theme of European Union politics.

As far as the shape of the Parliament was concerned, theconstitutional Convention on the Future of Europe (2002–03) pro-posed to cap the size of the House at 736. It wrote: ‘Representa-tion of European citizens shall be degressively proportional, with aminimum threshold of four members per Member State’.2 The prin-ciple of degressive proportionality is an elegant federalist con-cept according to which the interests of minorities are notionallyprotected against overweening majorities by awarding the lesspopulous states relatively higher representation than the morepopulous states.

The Convention was followed by an IGC which re-wrote theConvention’s draft to read:

The European Parliament shall be composed of representativesof the Union’s citizens. They shall not exceed 750 in number.Representation of citizens shall be degressively proportional, with a

1 For the author’s discussion of these wider issues, see Andrew Duff, The Strugglefor Europe’s Constitution (2005) and Saving the European Union: the Logic of the LisbonTreaty (2009).2 Article I-19(2) of the Draft Treaty establishing a Constitution for Europe (2003).

A. Duff / Mathematical Social Sciences 63 (2012) 74–77 75

minimum threshold of six members per Member State. No MemberState shall be allocated more than 96 seats.3

The change to the description of the mandate of an MEP wasrather similar to a proposal made by Germany at the time ofMaastricht, but at that stage rejected. There have been argumentsabout the exact significance of the change of the wording—from‘representatives . . . of the peoples of the States brought together inthe Community’, which dates from the original Treaty of Rome, to‘representatives of the Union’s citizens’. Although the term ‘peoples’is not thought to have any precise legal meaning in the EUTreaties, the change to ‘citizens’ was far from accidental. Indeed,the elevation of the EU citizen was accentuated elsewhere in theConstitutional Treaty — notably, in Article I-45(2) which assertedthat ‘Citizens are directly represented at Union level in the EuropeanParliament’.4 Certainly, representatives of the European Parliamentin the Convention and at the subsequent IGCs were hopeful thatthe change would encourage the further development of pan-European politics, leading to a more popular recognition of thepost-national political space.

2. The Treaty of Lisbon

After the defeat of the Constitutional Treaty in 2005 byadverse referendums in France and the Netherlands, the Treaty ofLisbon was crafted to salvage as much as possible of the originalconstitutional package.While thematter of the electoral procedurewas not raised during the Lisbon renegotiation of the constitutionaltreaty, an intense controversy broke out – once again at the veryend of an IGC – concerning the proposal to redistribute seats forthe Parliament to be elected in 2009.

In June 2007, as part of the Lisbon process, the European Councilhad invited Parliament to make a proposal for the redistributionof seats. This request conformed to the spirit of the new (draft)treaty which would give to Parliament the right to initiate a re-apportionment of its seats. Accordingly, and usefully, the legalquestion of seat apportionment was relegated from Treaty statusto that of a unanimous decision of the European Council on theproposal from and with the consent of the Parliament.

In autumn 2007 Parliament approved the Lamassoure–SeverinReport which sought to define what is meant by the principleof degressive proportionality, thus: ‘. . . the ratio between thepopulation and the number of seats of each Member State must varyin relation to their respective populations in such a way that eachMember from amore populousMember State represents more citizensthan eachMember from a less populousMember State and conversely,but also that no less populous Member State has more seats than amore populous Member State’.5

However, one state, Italy, objected to the proposal, consequenton the above, to give it 72 seats compared with the UK (73) andFrance (74). In the last minutes of the Lisbon IGC a compromisewas reached which raised the size of the Parliament to 751 – thatis, ‘750 in number, plus the President ’ – and the extra seat wasgiven to Italy.6 Unfortunately, however, this arrangement breachedParliament’s own definition of degressive proportionality (asdefined by Parliament), in that an ItalianMEPwould now representfewer people than a Spanish colleague, despite the fact that Spainwas less populous than Italy.

3 Article I-20(2) of the Constitutional Treaty (2004).4 Later replicated in Article 10(2) of the Treaty on European Union (2007).5 From paragraph 6 of the Lamassoure–Severin Report, adopted 11 October 2007

by 378 votes in favour to 154 against, with 109 abstentions; A6-0351/2007 (OJ C227 E, 4.9.2008, p. 132).6 Article 14(2) TEU (2007).

Notwithstanding this lapse from purity, the Lamassoure–Severin definition of degressive proportionality, as approvedby Parliament, was also accepted by the European Council inDecember 2007.7 Acceptance of degressive proportionality intheory, it appears, is much easier than its application in practice.The Italo–Hispanic rupture is only one of several pairings whichare not degressively proportional as the Treaty requires themto be. The heads of government themselves, in their redundantdraft decision of the European Council on the composition of the2009–14 Parliament, appeared worried about how to interpretdegressive proportionality: ‘the minimum and maximum numbers. . .must be fully utilised to ensure that the allocation of seats . . . reflectsas closely as possible the range of populations’. Nobody quite knowswhat this meant.8

The passage to ratification of the Treaty of Lisbon was longand difficult. The European Parliamentary elections in June 2009elections had to be fought on the basis of the Treaty of Nice (736seats within a range of five to 99 seats per state). The Lisbon treatydid not come into force until 1 December that year, and at thatpoint a primary law revision had to be launched for the electionof an additional 18 MEPs in order to raise the size of the Housefrom 736 to 751.9 At the same time, it was accepted that Germanyshould continue to enjoy having 99 MEPs until the next electionsin 2014, so the real size of the House until the end of the currentterm is 754. It is worth noting that the addition of the 18 ‘Lisbon’MEPswill not rectify the situationwhereby Parliament is in breachof the Treaty provision on degressive proportionality.

3. Enlargement, migration and demography

At any rate, further enlargement inevitably forces a reappor-tionment of seats in the House, at least in good time before the2014 elections. Croatia expects to join the Union during 2013. Inthat case, a number of Croatian deputies (probably 12) will beelected to join the Parliament on a transitional basis. The paceof Icelandic accession is more difficult to determine, but one dayIceland will in any case be entitled to the minimum of six MEPs.Further on, the Union faces the prospect of – and purports to en-courage – the eventual accession of the remaining countries of theWestern Balkans.10 And Turkey, due soon to be more populousthan Germany, still maintains its candidacy.

Moreover, it cannot be excluded – although it may bediscouraged – that one or two existing member states split upinto one, two or more separate state entities, all of which wouldrequire the election of their own – and inevitably more numerous– Members of the European Parliament.

A further spur to the re-apportionment of seats is the churningof population throughout the European Union. The mobility ofEU citizens migrating to and in many cases settling down tolive (and vote) in EU states other than their own has reachedunprecedented levels; and this welcome phenomenon is unlikelyto stop. Demographic change is another important factor, notleast in that Germany’s population is declining faster than that ofits neighbours, thereby lessening the gap between itself and itsnearest rival (and closest companion), France.

So the question about seat apportionment in the EuropeanParliament becomes ever more salient. And the problem of

7 Paragraph 5 of the Presidency Conclusions of the European Council, 14December 2007.8 Alas, no head of state or government was present at the Cambridge colloquium.9 At the time of writing, this change has still to be ratified by all member states:

the 18 extra MEPs wait expectantly to take their seats.10 Prospectively andputatively, Albania, Bosnia–Herzegovina, Kosovo,Macedonia,Montenegro and Serbia.

76 A. Duff / Mathematical Social Sciences 63 (2012) 74–77

fitting everyone in fairly beneath the ceiling of 751 according tothe principle of degressive proportionality now lies directly atthe door of Parliament which, under Lisbon, acquires the right(and the duty) to initiate changes in the composition of theHouse, effectively during each mandate.11 The combination ofenlargement, migration and demography presents a formidablechallenge to the retention of the arrangement whereby seats areredistributed by way of barter as part of an occasional generalrevision of the Treaties.

4. Optimal outcomes

Another valid criticism of the present ad hoc arrangements forseat apportionment is that they no longer produce acceptably fairresults. The allegation that Germans are disproportionately under-represented in the European Parliament formed part of the moti-vation of certain eurosceptic plaintiffs who brought a case againstthe Lisbon treaty to the German Federal Constitutional Court. In itsjudgment of June 2009, the Court concluded, after a diverting dis-cussion of themerits of degressive proportionality, that the systemas proposed in the Treaty is acceptable only because the EU fallsshort of being a federal state. The Court found that, in spite of theUnion’s pretensions to European citizenship, the European Parlia-ment is in fact made up of national contingents. Unlike the Bun-destag, the European Parliament is not an assembly of equals. Noris it the supreme authority of the European sovereign people. True,Germany’s representation elsewhere in the government systemof the European Union compensates for what might, in other cir-cumstances, be considered its unfair treatment in the Parliament.Moreover, the Treaty contains optional instruments of transna-tional participatory democracy, such as the newEuropean Citizens’Initiative, which usefully complement the role of MEPs.12 But theGerman Federal Constitutional Court averred that the present com-position of the European Parliament is suspect and cannot be pre-sumed to be lasting if or when the EU takes on a more distinctlyfederal character. The emergence of the prospect of fiscal union asa solution to the EU’s present financial and economic crisis accel-erates that crucial federal moment.13

The Lisbon judgment of the Karlsruhe Court remains controver-sial. In particular, the Court seems to have missed the point thatrepresentation in the EU is grounded on the basis of an historiccompromise between the international law principle of the equal-ity of states, on the one hand, and the democratic principle of oneman one vote, on the other. One does not have to accept the Court’sobiter dicta, however, to take note of the sensitivity of the issue ofhow the Parliament is to be composed in the future. At the veryleast, now that Lisbon is in force, it will be essential for the decisionon the future composition of the Parliament to try more scrupu-lously to apply the principle of degressive proportionality if litiga-tion in the European Court of Justice is to be avoided.

Most Members of the European Parliament recognise thatthe present ‘system’ for the distribution of seats is really nomore than a political fix—and one that is constantly unstable.Even those who are hostile to other elements of electoral reformappear increasingly to be reconciled to the view that to find amathematical formula to deal with the question of seats is the bestway forward. It would certainly be in the interests of simplicityand transparency if thematter of seats were to become less overtlypolitical and more nearly neutral.

11 Article 14(2) TEU (2007).12 Federal Constitutional Court Judgment of 30 June 2009, especially para-graphs 279–297; http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.13 See Andrew Duff, Federal Union Now, Federal Trust, 2011.

The sentiment for change is not confined to MEPs. Among theCouncil there is also a feeling that the time has come to lookmore seriously at arriving at a mathematical formula for a regulardistribution of seats which will be durable, transparent, explicableand impartial to politics. An escape from the unseemly scrabblefor seats is a very necessary reform if the popular legitimacy ofthe European Parliament is ever to become commensurate with itsundoubted, large, and growing statutory powers.

5. The Duff report I

The question of seat apportionment is only one of severalcontroversial elements which go tomake up Parliament’s prospec-tive reform package — the others being the creation of a pan-European constituency for the election of an additional 25 MEPsfrom transnational lists, the modernisation of the privileges andimmunities regime, a change in the date of polling day, and mea-sures to facilitate electoral participation by those EU citizens wholive away from home. The rapporteur – your author – hopes thatthe combination of several different ingredients will give rise tothe emergence of a decent package deal between Parliament andCouncil.

With regard to seat apportionment, the rapporteur observesthat many governments are less interested in increasing thenumber of MEPs for their country than in achieving parity ofesteem with states of a similar size. Although this may be difficultto admit in the face of press and public opinion, not all primeministers admire their MEPs enough to want more of them.Nevertheless, there are some assumptions which have to be takenas given. Luxembourg, for example, as a small but foundingmember state can hardly have fewer than its historical six MEPs.Cyprus, in its present divided state, hardly deserves more thansix. Spain, by any reckoning, did badly at Nice and is set to getmore.

The rapporteur is firmly of the view that unless consensus canbe found among the mathematicians there is no possibility thatagreement can be achieved by the politicians on the application ofa formula. As he hadwished, the Cambridge symposium in January2011 was rigorous in being scientific; rightly, it was not distractedby the likely political acceptability of its proposals. Nor did theassembled mathematicians fall to the temptation of seeking toredraft the strict Treaty-based parameters of the ceiling of 96, thethreshold of 6 and the overall size of 751. They also recognised thepolitical desirability of filling every available seat, although this isnot demanded by the Treaty. They discussed but did not challengethe assumption that the total resident population, as verified byEurostat, would continue to be the statistical basis.

In the future it may be possible to revisit some or all of theseTreaty constraints. If the Western Balkans were to join the EU, forexample, it would be better to lower the base. If the experimentof pan-European MEPs were to be deemed a success it mightbe desirable to expand their number beyond 25 and reduce thenumber of MEPs elected in the states accordingly. Yet any suchmove to transferMEPs from the national to the transnational quotacould not be achieved in the absence of a mathematical formula.For reasons both of sociology and efficiency, it is improbable thatthe overall size of the House will be allowed to growmuch beyond776.

When the Cambridge Compromise was unveiled to theConstitutional Affairs Committee of the European Parliament(AFCO) a predictable reaction set in. Any elected politician facedby proposals to amend the procedures by which he or shegot elected is bound to be nervous: in matters of electoralreform the status quo has a head start. After lengthy discussions,however, the Committee agreed to try to open up negotiationswith the Council in the quest for an agreeable mathematical

A. Duff / Mathematical Social Sciences 63 (2012) 74–77 77

approach to the matter of seat apportionment. AFCO also took theadvice of the Cambridge mathematicians and modified its earlierLamassoure–Severin definition of degressive proportionality.14

It was always fairly clear that the Cambridge Compromisewould not be acceptable en bloc for the 2014 elections, not leastbecause the representation of the middling sized states wouldbe squeezed somewhat abruptly. In politics most adjustmentsare best made gradually. It is probable that if the CambridgeCompromise is to be acceptable in the longer term, sometransitional arrangementwill have to be found to soften the impactof the change over two or more parliamentary terms.

In its vote on 19 April 2011 the Committee backed the DuffReport by 20 votes to four with no abstentions.15 Support inthe wider Parliament, however, was less convincing. When theDuff Report as passed by AFCO was raised in the political groupsand national delegations, MEPs began to look closely at theprospective personal and party repercussions of both the pan-European constituency and the mathematical formula. Hostilitywas especially strong from small parties in the medium-sizedcountries, but in all the classically ‘pro-European’ groups opinionwas divided. These divisions were reflected faithfully in the fullplenary debate which was held in Strasbourg on 7 July. In the lightof the debate, the rapporteur’s proposal to refer the Report back toAFCO was accepted without a vote.

6. The Duff report II

Following a further exchange of views in the Committee, therapporteur tabled a second report.16 Duff II seeks to address themain criticisms levelled at the original proposals, as well as takingnote of the anticipated signing of the accession treaty with Croatiawhich is scheduled for December 2011. The operational paragraph

14 ‘For the purpose of allocating seats among Member States in accordance withthe principle of degressive proportionality pursuant to Article 14(2) of the Treatyon European Union, the ratio between the population and the number of seats ofeach State before rounding to whole numbers shall vary in relation to their respectivepopulations in such a way that each Member elected in a more populous Staterepresents more citizens than each Member elected in a less populous State andalso, conversely, that there are fewerMembers elected in a less populous State thanin a more populous State’. (Author’s emphasis).15 Report on a proposal for a modification of the Act concerning the electionof the Members of the European Parliament by direct universal suffrage of 20September 1976, (Duff I), A7-0176/2011. The four votes against came from two UKConservatives, one Danish eurosceptic and one British National Party MEP.16 Draft Second Report on a proposal for a modification of the Act concerning theelection of the members of the European Parliament by direct universal suffrageof 20 September 1976, (Duff II), 2009/2134(INI). http://www.europarl.europa.eu/meetdocs/2009_2014/documents/afco/pr/877/877724/877724en.pdf.

on seat apportionment says:

(i) Determines that Parliament will initiate a proposal for a decisionestablishing the redistribution of the 751 seats among States, ifjustified objectively by figures established by Eurostat before everyelection; this decision should be adopted before the end of thefourth calendar year of the parliamentary term17;

(ii) Proposes to enter into a dialogue with the European Council toexplore the possibility of reaching agreement on a durable andtransparent mathematical formula for the apportionment of seatsin Parliament respecting the criteria laid down in the Treaties andthe principles of plurality between political parties and solidarityamong States.

At the time of writing, Duff II is still under discussion, andpossible amendment, in AFCO. At the same time, doingwhatever isnecessary to salvage the eurozone opens up the imminent prospectof wider treaty change. The Cambridge Compromise might wellend up featuring on the agenda of a constitutional Conventioncalled in the course of 2012 with the primary goal of installingeconomic government in the Union.18 In that case, the possibilitiesof package deals are almost limitless.

For his part, the rapporteur remains confident that a re-apportionment of the 751 seats can be worked out according toa sensible mathematical formula whose simplicity and clarity willnot only meet the technical requirements of the Treaties but alsoappeal on the grounds of fairness to public opinion. The EU shouldwork hard to take the first transitional steps in time for the nextelections in 2014.

The European Parliament is an historic experiment in post-national democracy. For all our sakes, the experiment deserves skilland perseverance. Mathematics can help the Parliament enhanceits efficiency and representative capability.

17 That is, December 2012.18 Article 48(3) TEU.