The European Parliament: Status Quo Vs. Degressive Proportionality

Abstract

The principle of degressively proportional representation in the European Parliament recorded in the Treaty of Lisbon has not been respected so far. According to the current proposals, neither it is applied in the 2014-2019 term of office. A political compromise has led to the dominance of another principle, that is “nobody gains and nobody loses more than one”, which again by its assumption cannot be degressively proportional. This paper shows some examples of the allocations of seats according to this rule, which emphasize the need for the further discussion on the precise rules for the composition of the European Parliament in the future.

Keywords: European ParliamentVotingDegressive Proportionality

Introduction

Ever since the beginning of the formation of modern states, based on the principles of democratic

representation, one of the main issues in the science of constitutional law has been the creation of such

rules of the electoral law which would serve in the best possible way to transfer the will (a spectrum of

political views) of society to its parliamentary representation (Lijphart, 1995). Hence several diverse

electoral systems were formed, with crucial differences regarding the method of establishing the results of

elections to representative bodies, and the allocation of seats among the political parties, electoral

committees and particular candidates. In the legal systems of individual countries there were formed

several – diverse in their construction – electoral systems which can be divided into the majority,

proportional and mixed (Blais, 1988). The historical, legal, economic and social phenomenon of post-war

European integration, leading to the creation of the European Union, made it necessary to answer the

question as to what principles should be the basis of the system for the election of the organ representing

citizens of the Union, i.e. the European Parliament (EP) (Obradovic, 1996). Due to the fact that we are

dealing with a supranational structure – a union of states diverse regarding their population size – it was

fundamental to establish such rules and allocation of seats which would not marginalize less populous

countries, and at the same time, using such an allocation which would provide the society in most

populous countries, with a suitable number of representatives reflecting their share in the total population

of the Union. Very significant disparities in the size of populations existing among some member states,

and the legal nature of the EU as an integrational structure serving those states to achieve common

economic and social aims (see Article 1(1) TEU), makes it impossible to base elections to the European

Parliament on the rules of the proportional representation particular for a single state.

As a result of the growing number of member states, and at the same time of the population

potential of the entire EU territory, it has become vital to find a formula which could lead to

implementing such aims, yet without endangering the effective functioning of the European Parliament. A

further increase in the numbers of Members of the European Parliament (MEP) would certainly

contribute to such a state of affairs, as has been repeatedly demonstrated in the past.

Problem Statement

The new solutions introduced in the Treaty (2007), the Lisbon Treaty, regarding the allocation of

the EP seats among the individual member states, established the principle of degressive proportionality

(Article 14(2) of the Treaty on European Union, 2012). The ruling of the Treaty in this question is,

however, of a very general nature and introduces only the criteria of the acceptable number of EU

citizens' representatives (751 including the President of EP) and the minimum and maximum numerical

threshold of the seats available for the least and the most populated member states (from 6 to 96 seats).

Within the indicated solutions, it is possible to apply diverse methods of allocation of seats among

the member states, as long as they follow the principle of degressive proportionality. This principle is

expressed in the EU documents as the inclusion of three fundamental objectives:

“1) minimum and maximum numbers defined in the Treaty have to be fully implemented in order

that the allocation of the seats reflects, as broadly as, possible the cross-section of population of the member states; 2) the larger the population of a member state, the larger the number of seats it is entitled

to; 3) the larger the population of a member state, the larger the number of its citizens represented by its

individual members of EP” (The Treaty of Lisbon).

The indicated elements of the concept of degressive proportionality allow for the implementation

of several solutions based on diverse mathematical methods. In the face of the lack of a legally defined

way (method) of allocating the seats among the individual member states, such a decision about their

allocation depends on the Council of Europe, which has to pass it unanimously on the initiative of the

European Parliament and with its consent (Article 14(2) TEU). Such a state of affairs results in the need

to make changes in the allocation accepted so far, in particular in the case of the accession of new states,

or in significant changes in the population of the individual member states. This, in turn, requires

obtaining a political compromise, the acceptance of which may become a source of obstacles in the

functioning of the whole institutional mechanism of the EU. The above mentioned form of legal ruling is

difficult to concur with the principle of definiteness of law, which not only constitutes a fixed part of the

concept of a democratic state of law, fundamental in the constitutions of individual member states, but is

also a requirement formed by the theory of law addressed to every system of laws (Costa and Zolo, 2007).

According to Article 2 of the TEU, the functioning of the Union should be based on the values of a state

of law common for the member states. Undoubtedly, this principle should guide the creation of both the

treaty basis of the Union's legal order, and the secondary laws decreed by the Union's institutions, which

are their further development. This also means that the ways of understanding the concept of the state of

law evolved in the legal tradition of individual member states should be used in the process of

establishing and implementing laws at the EU level.

Research Questions

When referring in the aspect mentioned in the previous section to the concepts existing in the

science of law, it should be stressed that the principle of definiteness of law includes several requirements

of correct legislation, among them a premise that the newly created regulations should be formulated

correctly, both linguistically and logically, be understandable (clear) for those they are addressed to, but

also be precise, i.e. unequivocal in their interpretation and implementation. Meanwhile, the rules included

in the Article 14(2) TEU, do not indicate a precise method of allocating the EP seats among the individual

member states, they simply create a general template necessary to fill in with decisions made by The

Council of Europe. Such a template may be filled by assuming diverse solutions, resulting from several

possibilities existing within the area delineated by the criteria of the maximum and minimum number of

parliamentarians from each member state and the maximum number of seats in the European Parliament.

The elements of the degressive concept of proportionality indicated above are also of a very general

nature, and the relevant EU documents state that it is not possible to copy them literally (in full) and to

follow in the allocation of seats. They are merely treated as points of reference when necessary to conduct

a concrete allocation.

Therefore, it undoubtedly remains necessary to attempt to create a precise legal ruling regarding

the presented issue, based on a suitably defined mathematical method acceptable for all the member

states, which would prevent the frequent, politically motivated, changes in that area. This approach has

been further confirmed not only in the EU documents, but also in the principle of the definiteness of law

fundamental in the state of law, and a principle of the EU laws (Article 2 TEU). Therefore, the

considerations presented in this paper will constitute an attempt to define such a method, characterized by

objectivity and respecting – to the highest possible degree – the concept of degressive proportionality in

the allocation of the EP seats among the individual member states.

The main contribution of this paper is to show that the requirements on the allocation of seats for

the European Parliament given by Gualtieri and Trzaskowski (2013) do not respect the highest possible

degree objectives defined in that document. Namely, we show that there are other allocations following

“nobody gains and nobody loose more than one”, but in the same time the degressive proportionality of

the proposed allocations does not hold only for the smallest possible number of countries. It is worth

highlighting that in the solutions given by Gualtieri and Trzaskowski (2013), the number of countries,

which do not hold the degressive proportionality is greater than the propositions presented in this paper.

Furthermore, the assumption applied by Gualtieri and Trzaskowski (2013), by its definition cannot be

degressively proportional, thereby against the Treaty of Lisbon. Therefore, this paper points out some

limitations of the existing propositions, but also provides solutions and their comparison, which

emphasize the need for the further discussion on the precise rules for the composition of the European

Parliament.

Purpose of the Study

The previously operated allocation of seats in the EP did not respect the condition of degressive

proportionality defined in the Treaty of Lisbon. The conditions regarding the general number of

parliamentarians and the maximum representation of each country are not met. The legal basis for such a

deviation are based in this case on the provisions of Art. 2 Protocol no 36 regarding temporary provisions

(see Gualtieri and Trzaskowski, 2013). However, a thus sanctioned deviation from the Treaty, was limited

in time till the end of the 2009-2014 term of office, and therefore the necessity arose to adapt these

solutions to the provisions of the Treaty of Lisbon.

As a result of such an adaptation, the general number of MEPs in the 2009-2014 term of office

was restricted to 751, and Germany – as the most populous member state – will obtain 96 seats. These

changes shaped the make-up of the European Parliament according to the peripheral conditions describing

the general, minimum and maximum number of MEPs. However, they did not determine the fulfillment

of the two other remaining conditions of the principle of degressive proportionality.

It transpired that deviations from the resolutions of the Treaty of Lisbon also occurred in the

current term of office. The reluctance to upset the existing system of seats means that the proposals

regarding the composition of the EP tended to aim at the smallest possible changes in the previous

structure, at the expense of breaking the principle of degressive proportionality. Reports presenting the

project of the resolution of the European Parliament regarding its composition for elections in 2014,

pointed out as a justification the basic rule of “nobody gains and nobody loses more than one”. Losses

and gains refered naturally to the previous structure in 2013 (see Table 1 ). The proposed solution assumed

as a criterion of allocation the limiting of the loss of seats on the part of member states, at the same time

respecting – as far as possible – the principle of degressive proportionality.

In 2013, there were 766 MEPs. To obtain the declared number of 751 representatives, the number

of seats had to be decreased by 15. Germany was represented by 99 seats, and it had to lose three of them

to meet the condition of a maximum representation of 96. Therefore, the remaining countries also lost 12

seats; the reference values of seats for these considerations are given in Table 1 in column “Reference”.

Obviously this did not concern the smallest countries which, if they lost any seats, would not fulfill the

condition of the minimum representation of six parliamentary seats. This means a cut in the number of

seats concerned other 23 countries (indices 5-27 in Table 1 ).

On the other hand, to obtain an unprejudiced rule for the composition of the EU Parliament, a fair

analysis is needed, which requires examining of all feasible allocations of seats (holding the above

constraints). Therefore, lots of methods have been proposed, which construct compositions of the EU

Parliament (e.g., Martinez-Aroza and Ramirez-Gonzalez, 2008; Ramirez-Gonzalez et al. 2012; Serafini,

2012; Słomczyński and Życzkowski, 2012). However, they face an essential problem – they are not able

to generate (examine) all feasible allocations of seats (solutions).

Table 1 -
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Research Methods

Recently, Łyko and Rudek (2013) have designed and implemented an algorithm that is able to find

all feasible solutions. Nevertheless, all allocations of seats such that “nobody gain and nobody loses more

than one” can be generated by an exhaustive search method. As mentioned above, there are 23 counties

Table 2 .and among them 12 have to lose one seat. Thus, the number of possible allocations to be examined is

equal to the binomial coefficient 23 11 = 1352078.It can be done in a reasonable time. Among them,

there are 9835 allocations that hold the mentioned assumption and the number of seats of a smaller

country is not greater than the number of a greater country. Namely, following Table 2 there are 9835

allocations meeting the first two conditions of the principle of degressive proportionality equal to

removing one seat for each of 12 countries. Analyzing solutions of two pairs not holding degressive

proportionality (see also Table 4), one can notice that, apart from the four mentioned countries (i.e.,

Malta, Luxembourg, Cyprus and Estonia) also 9, and therefore all together 13, will not diminish in any

case its representation. With each allocation of seats are lost by 8 countries, therefore the acceptance of

the principle “nobody gains and nobody loses more than one” results in depriving each of these countries

of one representative. In this case the task is reduced to indicating 4 countries from among 7 which have

to give up a larger representation, in order that the proposed solution would not be “too drastic to be

politically sustainable in a single step”.

Figure 1: Number of solutions for the given number of pairs that do not hold degressive proportionality assuming that “nobody loses more than one” in reference
Number of solutions for the given number of pairs that do not hold degressive proportionality assuming that “nobody loses more than one” in reference
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Table 2 -
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Findings

It is known that setting a rule that a seat cannot be gained, and that at the most one seat can be lost,

has to lead to breaking the third condition of the principle of degressive proportionality (see Table 2 ).

Importantly, the current demographic structure means that by leaving Germany with 96 seats and limiting

the obtainable number of the allocated seats for France to 73 or 74, the required inequalities for a

coefficient representing a number of population of a given country per one parliamentary seat is not

obtained. In the case of Germany the ratio between the population and the number of seats is 852539, in

the case of France it is respectively 895862 and 883756. Therefore, both in the first and the second

situation it is larger for a smaller country than for a bigger one.

A similar disparity can also be observed for a pair of countries: Italy and Spain. According to the

accepted principles, Italy can be represented by 72 or 73 MPEs. The ratio between the population and the

number of seats of each country is then respectively 844733 and 833161. Spain can obtain 53 or 54 seats,

which results in the ratio between the population and the number of seats 871628 and 855487,

respectively. Therefore, in any possible – with the above mentioned restrictions – allocation of seats, an

MEP from Spain, less populated than Italy, represent a larger number of population.

Seemingly, accepting the principle “nobody gains and nobody loses more than one” does not cause

any other violation of the rules of the Treaty of Lisbon. One can indicate 25 allocations (see Table 4)

according to this principle which do not meet only the third condition of the principle of degressive

proportionality, and that is only in the case of the two indicated pairs of countries, i.e. Germany and

France, and Italy and Spain. One would therefore expect that the allocation proposed in the report

presenting the project of a resolution of European Parliament regarding the composition of the EP in

2014, was one of those 25 allocations (see Table 4), but it was not so. The solution indicated by the report

(Gualtieri and Trzaskowski, 2013) violated the third condition of the principle of degressive

proportionality for a larger number of pairs of countries. What is more, every Irish MEP represents a

greater number of citizens than MEPs from two larger countries, i.e. Finland and Slovakia (see Table 3 ).

Hence, it is hard to say that the idea of the principle of degressive proportionality was respected “as far as

possible”, since any related definition was not provided by Gualtieri and Trzaskowski, 2013.

Justifying the project of the resolution, it was also written that the proposed solution is the result of

a two-step procedure, in which “the first step is a reallocation fully in line with the three principles of

degressive proportionality and, at the same time, involving as little change as possible in the number of

seats”. Without involving Germany in these considerations, which, in any case, has to obtain 96

parliamentary seats, an allocation obtained at this stage is the one in case of which the change of number

of seats concerns 17 countries. To obtain the current result, 34 seats have to be moved. The biggest loss

amounts to three, and the largest gain amounts to four additional seats.

Such an allocation is one of 296280 degressively proportional allocations as a result of which the

biggest loss, in relation to the current state (“Reference”), amounts to -3 seats, and the largest gain

amounts to +4 (see Table 5). Therefore, it seems necessary to justify the choice of this particular solution

obtained on completion of the first stage (see step 1 in Table 3 ). Based on Table 5, it is worth noticing

that there are 134 degressively proportional allocations, for which the maximum deflection from the

current allocation is -2 (maximum lose) and +3 (maximum gain). It can also be proved that there are no

degressively proportional allocations differing less, in that sense, from the one presently in use.

Figure 2: All solutions (numbers of seats), where only two pairs of countries (bolded) do not hold degressive proportionality
All solutions (numbers of seats), where only two pairs of countries (bolded) do not hold degressive proportionality
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Table 3 -
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Conclusion

In this paper, we pointed out some limitations of the existing propositions, but also provided better

solutions, which emphasized the need for the further discussion on the precise rules for the composition

of the European Parliament. Despite the frequently stressed in official documents need to prepare a clear

and repeatable way of selecting the representations of the member states, the composition of the European

Parliament is still established on the basis of political compromise. Moreover, such a compromise does

not allow for adapting the allocation of seats to the rulings of the Treaty of Lisbon. In the current term of

office, i.e. 2014-2019, the principle of degressively proportional representation recorded in the Treaty is

not respected. However, it seems that the proposed allocation which remains in force from 2014 onwards,

from the point of view of the accepted principles, is removed further than necessary from the solutions

written down in the legal regulations. The examples of allocation of the parliamentary seats among the

member states presented in this paper follow the principles mentioned in the project of the resolution of

the European Parliament in view of the elections in 2014, and reflect more closely the principle of

degressive proportionality.

In our opinion, the allocation of seats for the current term of office should be chosen among the

solutions presented in Table 4, since only them holds rules defined by Gualtieri and Trzaskowski, 2013.

Furthermore, on the basis of these solutions different allocations of seats can be found, which depending

on the preferences encourage smaller or greater countries. To hold the degressive proportionality as much

as possible (see Table 4), the political discussions can concern only 7 countries (denoted by “~”), i.e.,

Austria, Romania, Poland, Spain, Italy, UK, France. Therefore, it has to be decide, which 4 counties

among the above mentioned have less MEPs than “Reference”. Thus, the spectrum of the political

negotiations is significantly reduced. Observe also in Table 4 that the allocation of seats denoted by “25”

encourages smaller countries, in opposition to “1”, which prefers the more populated. It seems that

solution “25” seems to be most fair, since not only Germany loses most seats (from 99 to 96) as the most

populated countries, but also other in this order, i.e., Spain, Italy, UK and France. Nevertheless, a future

discussion before the new election is required such that the new structure of the European Parliament will

hold at last the Treaty of Liston.

Acknowledgments

The results presented in this paper have been supported by the Polish National Science Centre

under grant no. DEC-2013/09/B/HS4/02702.

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Publisher

Future Academy

First Online

18.12.2019

Doi

10.15405/epsbs.2017.02.3

Online ISSN

2357-1330