The logic of power in the emerging European constitution: Game theory and the division of powers

Abstract

The major institutions of government in the European Community are the Council of Ministers, the Parliament, the Court of Justice, and the Commission. The initial treaties prescribed a legislative process in which the Commission proposed, the Council enacted, and the Court interpreted. The Council enjoyed the exclusive power of legislation, and most of its enactments required unanimity. In contrast, the Parliament had, at most, a right to be consulted about legislation. In effect, the institutions of European government originally provided a framework for cooperation among ministers of the sovereign states. From this beginning, the European Community has evolved gradudly towards a democratic government. Specifically, majority rule is replacing unanimity in the Council, and the role of Parliament is increasing towards full partnership in the legislative process. Legislation now must follow majoritarian, bicameral procedures on some issues, and the scope of these issues will presumably widen. The obvious consequence of these changes is a decrease in the power of the Council and an increase in the power of Parliament. We use game theory to prove the not-so-obvious fact that majoritarianism in the Council increases the power of the Commission and, in the long run, decreases the power of the Court, whereas bicameralism has the opposite effect. Our analysis suggests a revaluation of the implementation of democracy in Europe. To be more precise, there are four procedures for European legislation that differ according to the extent that the Council must involve Parliament in making law. The procedures, arranged in order of increasing involvement of Parliament, are called unilateral, consultation, cooperation, and co-decision. A change from consultation to cooperation on an issue, and a change from cooperation to co-decision, obviously