Codecision procedure bias: the European legislation game

Jenny Helstroffer, Marie Obidzinski

Abstract The European Unions codecision procedure is analyzed as a bargaining game between the Council
and the European Parliament. Our model shows that there is a significant probability of the procedure failing.
Even if the negotiation leads to an agreement, the policy outcome is biased towards the ideal point of the institution that is closest to the status quo. This is generally the Council. Furthermore, the result of the codecision
procedure is Kaldor-Hicks inefficient. The developments of common policies concerning asylum, fishery and
maternity leave illustrate both the possibility of a failure of negotiation and the dominating influence of the
Council on the outcome.
Keywords Codecision European Union Council of Ministers European Parliament Law making
PACS D72 D78 F22 K42 H53

1 Introduction
When the Lisbon Treaty entered into force in December 2009, codecision became the European Unions ordinary legislative procedure1 , replacing Council decision making with simple consultation of the European
Parliament in all areas of legislation. Codecision requires the alternative opinions and amendments of both
the European Parliament and the Council, based on a Commission proposal. If no common position is found,
codecision ends with a conciliation stage, which may or may not lead to a common position. The aim of this
reform is to set the European Parliament on an equal footing with the Council.
This contribution pursues two aims: (1) to understand the impact of the introduction of codecision on the
influence of the European Parliament and on the Council in policy making, and (2) to show the consequences
of the change of procedure on law making.
There is a rich literature on the EU legislative process. The discussion on the relative influence of the EU
institutions focusses on a power index approach in the tradition of Shapley and Shubik (1954) and Banzhaf
(1965) versus a procedural approach, which takes strategic interaction between the institutions into account
(Garrett and Tsebelis 2001; Napel and Widgren 2004, 2005). The power index approach having been criticized
for relying solely on cooperational models of game theory (Tsebelis and Garrett 1996), more recent power
Jenny Helstroffer
BETA, Universite de Lorraine, 6 rue des Michottes, 54000 Nancy, France, E-mail: jenny.helstroffer@univ-lorraine.fr
Marie Obidzinski
CRESE, Universite de Franche-Comte, 30 avenue de lObservatoire BP 1559, 25009 Besancon Cedex, France, +33 3 81 66 60 70,
E-mail: marie.obidzinski@univ-fcomte.fr
1 Treaty of the Functioning of the European Union, TFEU, Article 294. Codecision between the European Parliament and the
Council of Ministers was initially established by the Maastricht Treaty (entered into force on 1 November 1993) and extended and
adapted by the Treaty of Amsterdam (entered into force on 1 May 1999) and the Treaty of Nice (entered into force on 1 February
2003).

Jenny Helstroffer, Marie Obidzinski

indices have incorporated strategic interaction into their models: the strategic measure of power Napel and
Widgren (2004), the strategic power index Steunenberg et al. (1999), and voting power analysis (Passarelli and
Barr 2007; Barr and Passarelli 2009) are based on non-cooperational models. However, none of these indices
allow for amendments, focusing instead on yes or no decisions.2 We therefore concentrate on the procedural
(game theoretic) aspects of EU legislation.
A large part of the literature on procedure focusses on the voting rule within the Council of Ministers,
studying the impact of its alterations over time.3 However, as Mattila and Lane (2001) point out, voting rarely
takes place in the Council. When the voting rules are applied, they lead to outcomes that comfort the hypothesis
of the Council as reticent to change. We therefore abstract from the voting procedure in this paper.
The procedural analyses of the codecision procedure has been analyzed using spatial models4 both under
the veto-player perspective (Tsebelis and Garrett 1996, 2000; Tsebelis 2002; Tsebelis and Yataganas 2002)
and using the Nash Bargaining Solution (NBS) (Napel and Widgren 2006). Both approaches find that the
codecision procedure comports a significant risk of the procedure failing, result which is corroborated in the
empirical work of Konig et al. (2007).
The question of the impact of the codecision procedure on the relative power of the European Parliament
has been addressed in a number of both theoretical and empirical studies. While some show an increase of
the Parliaments influence compared to the former cooperation procedure,5 others find that the European Parliament becomes a co-legislator equal to the Council (Tsebelis and Garrett 2000; Crombez 2000). Further,
Steunenberg and Dimitrova6 measure the power index of the institutions and conclude that the European Parliaments power under codecision is higher than that of the Council. However, an increasing number of studies7
find that the influence of the European Parliament under codecision is inferior to that of the Council.
Based on a NBS model similar to that of Napel and Widgren Napel and Widgren (2006), but introducing
endogenous, asymmetric utility functions, our paper analyses these biases introduced by codecision. In addition
to an increase in the failure of negotiation, we show that there is bias in favor of the Council when a decision
is reached. This outcome is shown to be inefficient.
The remainder of the paper is organized as follows. Section two introduces the general framework of
the codecision procedure. Results are derived. Section 3 summarized the consequences for lawmaking and
illustrates the results of the model with recent EU policy developpements concerning asylum, fishery and
maternity leave.

2 The Model
2.1 The general framework
The framework is the following. The European institutions (we note the European Parliament EP, the Council
of Ministers CM and the Commission EC) bargain over a standard or policy x in a policy space [0, 1].
Codecision requires that both the European Parliament and the Council of the European Union agree on
a text.8 Figure 1 presents the codecision procedure. First, the Commission (EC) makes a proposal. The phase
2 For a review of power indices, see Napel and Widgr
en (2011) and B. Steunenberg, D. Schmidtchen, On the Possibility of a Preference-based Power Index: The Strategic Power Index Revisited, paper presented at the Leverhulme Trust
sponsored Voting Power in Practice Symposium held at the London School of Economics, 20-22 March 2011. Available at
http://www2.lse.ac.uk/CPNSS/projects/VPP/VPPpdf/VPPpdf Symposium2011/Schmidtchen.pdf.
3 See for example Widgr
en (2009), Napel and Widgren (2006) and Barr and Passarelli (2009).
4 For a review of the spatial models, see Hoerl et al. (2005).
5 See Farrel and H
eritier (2003), Shackleton and Tapio (2003) and Hage and Kaeding (2007). In its activity report, the European
Parliament also finds that the Parliament benefits from the conciliation procedure: it gains bargaining power because it has a stable
leadership, whereas the Council delegations leadership rotates. See European Parliament (2009) Activity Report 1 May to 13 July
2009 (6th parliamentary term) of the delegations to the Conciliation Committee. Available at http://www.europarl.europa.eu.
6 B. Steunenberg, A. Dimitrova, Interests, Legitimacy, and Constitutional Choice: The extension of the codecision procedure in
Amsterdam, Mimeo, 1999. Available at http://www.essex.ac.uk/ecpr/events/jointsessions/paperarchive/mannheim/w27/Steunenberg
.PDF.
7 See for example Kasack (2004) and Tsebelis and Yataganas (2002), Tsebelis (2002) and Giuriato (2009).
8 See Official Journal of the European Union, Joint declaration on practical arrangements for the codecision procedure (Article
251 of the EC Treaty), 2008/C 115/47, 09.05.2008.

Codecision procedure bias: the European legislation game

Fig. 1 The codecision game tree

called first reading begins. The European Parliament (EP) is the first to give an opinion. It can accept or
amend the proposal. The Council of Ministers (CM) can accept the text adopted by the European Parliament.
In this case, the document is adopted. Otherwise, it defines what is called its common position and a second
reading takes place. The EP now can adopt, reject or amend the CMs common position. In the first two cases,
the procedure is over. If the common position is not adopted, the status quo holds. If however the common
position is amended, the CM either approves or rejects the amendment. In the case that the EP and the CM
have still not reached an agreement, a Conciliation Committee is formed. This Committee is constituted of
50 % members of the EP and 50 % members of the CM. The Conciliation Committee attempts to propose a
common project. If it fails, no document is adopted and the status quo holds. If it succeeds, this common project
must be adopted by both the CM and the EP in a third reading, else it fails. In practice, the Commission, when
confronted with the probable failure of negotiations, may recast its proposal during the codecision process.
Each institution derives some costs and benefits from a policy x. Assume that a higher x reflects a more
generous standard (higher social protection, stricter environmental norms). Each institution derives benefits
from a higher standard. Assume that a higher x also implies higher costs. Take for example environmental
standards: higher standards bring benefits in terms of short term and long term environmental protection, but
also higher enforcement costs.
The European institutions do not perceive the same budget constraints. Indeed, the Council of Ministers
bears a large share of the budgetary consequences of their policy choices (it reflects the budgetary concerns of
the national governments), while the European Parliament faces costs more indirectly when higher taxes affect
the votes. According to Farell and Heriter (2003), the weaker pressure felt by the members of the European
Parliament comes from the fact that parliamentary elections may be seen as second order elections9 .
9

See also Farrel and Heritier (2003) on the greater vulnerability of the Council to political failures.

Jenny Helstroffer, Marie Obidzinski

We deduce that CM weights the costs of a higher standard more than EP (CM > EP , with i [0, 1] the
weighting of the costs of the standard by institution i = EP,CM, EC). Regarding the Commission, we assume
that its valuation of the costs EC relative to that of the other institutions is not defined a priori.10
Therefore, each institution faces a trade-off between the benefits and the perceived costs of a policy. The
ideal standard xi of each institution is determined by the maximization of its utility function Ui , which is
assumed to be concave on [0, 1] and include a maximum on ]0, 1[.
Ui (x) = b(x) i c(x)

with i = EP,CM, EC

2.1.1 The optimal standards of the European Institutions

< x , with x

Under these assumptions, we can easily show that xCM

EP
CM and xEP the optimal levels of the
standard of CM and EP. In other words, the Council of Ministers, whose budget constraint is weighted more
heavily, is always in favour of a less comprehensive policy than the Parliament.11
of CM remains strictly lower than
Lemma 1 Given the preferences of EP and CM, the optimal standard xCM
for any
EPs optimal standard xEP
>

.
EP
CM

Proof The first order condition of the maximization of UCM (x) is b0 (x) = CM c0 (x) and that of UEP (x) is
< x
t
u
b0 (x) = EP c0 (x). Thus, xCM
CM > EP .
EP
The budget constraint perception derived from asylum policy by EC relative to the other institutions is not

defined a priori. Under the assumptions regarding the utility function of EC, there exists a unique standard xEC
which maximizes the Commissions welfare function. Depending on the value of EC , the ideal point of the
varies over [0, 1].
Commission xEC
2.1.2 Timing of the procedure
We consider legislation in which the European Institutions do not bargain from scratch. There already exists a
previous standard q. If they find no agreement, this status quo q prevails.
The codecision procedure is described in Figure 1. It is composed of two rounds of proposals and counterproposals and a subsequent round of compromise finding (the conciliation stage). From the point of view
of game theory, the relevant step is the conciliation stage. Indeed, if both institutions correctly anticipate the
result of the last stage, it is straightforward to see that the conciliation stage result determines the codecision
procedure result: if, at the first stage, an institution anticipates that it cannot obtain more in a subsequent stage,
it has no interest in pursuing.12 In the conciliation stage, institutions can make offers and counter offers. This
structure corresponds to the bargaining procedure a` la Rubinstein, which can be approximated by the Nash
bargaining solution (Binmore et al. 1986; Muthoo 1999). We can therefore reduce the different steps of the
codecision procedure to a single step in which the Nash bargaining solution is found.
Let us assume that the timing of the legislative procedure is the following:
1. The Commission proposal The Commission decides whether to make a proposal xEC or not. If it does,
the codecision procedure begins. If it makes no proposal, the game ends and the status quo q prevails.
2. The codecision stage Following the Commission proposal, the EP and CM bargain over the standard x
given the status quo q. The first and second reading as well as the conciliation procedure are treated in this
step.
We proceed by backward induction.
10

For a discussion of the Council position, see Napel and Widgren (2008).

Note that all other things equal, the optimal standard xCM
of CM corresponds to the standard that would have been adopted
by the Council under the former decision making procedure. However, this does not imply that xCM = q, because the Council
composition can have changed over time, and because q might result from a former codecision procedure.
12 In EU reality, there seems to have been a learning process of the codecision procedure: over time, the number of
cases reaching conciliation has decreased in favor of decisions in the first reading. See Commission of the European
Union (2009), The Co-decision procedure (art. 251 TEU): Analysis and statistics of the 20042009 Legislature. Available at
http://ec.europa.eu/codecision/statistics/docs/report statistics public draft en.pdf. This can be interpreted as an anticipation of the
conciliation outcome.
11

Codecision procedure bias: the European legislation game

2.2 The codecision stage and the Commissions proposal

Here, the Commissions proposal has been made, starting the codecision procedure. EP and CM try to reach a
mutually beneficial agreement. Regarding the position of the status quo q relative to the Council and EP ideal
points, two cases can be distinguished:
, x ]: There are no mutually beneficial agreements x such that U (x)
>
1. q[xCM
EP > UEP (q) and UCM (x)
EP
UCM (q).
[]x , 1]: The two players share a common interest in cooperation.
2. q[0, xCM
EP

In the first case, the status quo is comprised between the Council and EP ideal points. EP and CM have
, x ], as U
conflicting interests on [xCM
CM (.) is strictly decreasing and UEP (.) is strictly increasing: EP will
EP
want an increase and CM a decrease in the standard. No solution other than the status quo can result. Note that
if q = xi , the institution i = EP,CM has no interest in changing the status quo.
[]x , 1]), we are in a bargaining situation, since the two players have a
In the second case (q[0, xCM
EP
common interest to cooperate (both prefer a higher/lower standard than q) but have conflicting interests over
exactly how to cooperate (Muthoo 1999).
The bargaining solution x is the standard upon which EP and CM agree in the conciliation procedure. The
set of the possible agreements is such that any solution x has to meet the following constraints: UEP (x)
> UEP (q)
and UCM (x)
> UCM (q).
, x ].
Lemma 2 The bargaining solution x necessarily lies on the segment [xCM
EP
. Any point x[q, x ] has a unique equivalent in terms of utility on [x , q]
Proof Assume that q xCM
CM
CM with
] and strictly decreasing on [x , 1]. The barUCM (q)
= UCM (q) since UCM (.) is strictly increasing on [0, xCM
CM
, q]
]
gaining solution necessarily lies in [xCM
as, by definition, CM is indifferent between any point x[q, xCM

and its equivalent in terms of utility on [xCM , q]

while EP prefers a point closer to xEP since UEP (.) is strictly in ] and x < x for any
.
creasing on[0, xEP
> EP (see Lemma 1). The reverse is true for EP when q > xEP
CM
EP
CM

Therefore, the bargaining solution necessarily lies in [xCM , xEP ].

t
u
or x < q, the set of the possible agreements is
When q < xCM
EP

S = {(UEP (x),UCM (x)|x[xCM

, xEP
],UEP (x)
> UEP (q),UCM (x)
> UCM (q)}

Call the utility pair that corresponds to the status quo the disagreement point
d = (UEP (q),UCM (q)). We adopt the Nash bargaining solution to describe the outcome of the negotiations
or x < q).
during the conciliation procedure in the second (bargaining) case (q < xCM
EP
Different hypotheses on the relative time preferences are implicitly defended in the literature. Thus, Farrel
and Heritier (2003) argue that the CM has a shorter time horizon than the EP due to the rotation of its chair
every six months. This would increase the Councils discount rate. Other arguments by the same authors also
indicate that the EP has higher bargaining power: due to second order elections, they claim that the EP is less
vulnerable to policy failures than are member states and the CM. Also, the CM does not have the resources
for long, drawn-out negotiations. On the other hand, Napel and Widgren (2006) argue that the difference in
voting procedure gives a bargaining advantage to the CM. Indeed, the CM requires a qualified majority (and
in one case even unanimity13 ), whereas the EP can adopt a proposal with a simple majority. Given the lack
of a decisive argument in favor one of the institutions, we apply the symmetric Nash bargaining solution. In
doing so, we assume that no institution is more impatient than the other, nor does it have any other bargaining
advantage.
The Nash bargaining solution is found by solving the maximization problem Binmore et al. (1986):
x = argx[x

CM ,xEP ]

13

max[UEP (x)
UEP (q)][UCM (x)
UCM (q)]

(1)

Unanimity is required in the special case in which the Commission cannot accept the amendment introduced into its proposal.

Jenny Helstroffer, Marie Obidzinski

Fig. 2 Utility and optima of EP and CM, Nash Bargaining outcome

Note that the disagreement point is clearly Pareto inefficient since the sum of the players disagreement
payoffs (UEP (q) +UCM (q)) is strictly lower than the aggregate surplus from an agreement during the conciliation procedure:
UEP (x)
+UCM (x)
> UEP (q) +UCM (q)

To go further, let us specify the utility functions for the remainder of the model. Assume that the payoff
functions of the EP and the CM are such that:

Ui (x) = x i x
with i = EP,CM
In this case, Ui (.) reaches a maximum in xi =

1
4i2

with i = EP,CM. Ui (.) is strictly increasing on [0, xi ]

of CM is lower than EP0 s ideal point x as

and strictly decreasing on [xi , 1]. Also, the ideal point xCM
CM >
EP
, x ]. Figure 2
EP . Therefore, UCM (.) is strictly decreasing and UEP (.) is strictly increasing on the set [xCM
EP
illustrates the fact that the bargaining solution is situated in between the two institutions ideal points.
Deriving x with respect to q, we obtain a negative result. In other words, like Napel and Widgren (2006),
, x is closer to x than to x , (2) and if q > x , x is
we observe a bias toward the status quo: (1) if q < xCM
EP
EP
CM

closer to xEP than to xCM .

, the bargaining solution x is closer to x
Proposition 1 There is a bias toward the status quo: (1) if q < xCM
CM

than to x .
than to xEP , (2) and if q > xEP , the bargaining solution x is closer to xEP
CM

For proof see appendix.

Figure 3 shows the bargaining solution (codecision outcome) x as a function of q14 , as well as the ideal
points of the two institutions15 . It is clear from Figure 3 that for a low level of q, the bargaining solution is
indeed closer to CMs than to EPs ideal point. Further, the closer q is to the ideal point of i, the smaller

the distance between x and xi . We see that the distance between x and xCM
decreases as q approaches xCM

(q [0, xCM ]), until it reaches x = xCM for q = xCM . The reverse is true when the status quo is higher than xEP .
This observation is summarized in Remark 1.
Remark 1 The solution of the codecision procedure, when launched by the Commission, is largely determined
by the position of the status quo. The closer q is to the ideal point of i, the smaller the distance between x and
xi with i = CM, EP.
14
15

, x ] since for any q on [x , x ] there is no bargaining set.

Recall that q is not defined on [xCM
EP
CM EP
With CM = 0.6 and EP = 0.7.

Codecision procedure bias: the European legislation game

Fig. 3 The codecision outcome and Kaldor-Hicks optimum as a function of q

Let us define the Kaldor-Hicks policy xKH

which maximizes the sum of the utilities of both institutions
(UEP (x) +UCM (x)). We find that :

Proposition 2 The outcome of the codecision procedure is never Kaldor-Hicks efficient. The closer q is situated
, with
to the ideal point of one of the institutions, the further x is situated from the Kaldor-Hicks optimum xKH
, x ].
x [xCM
EP
Proof The proof is straightforward. When specifying Ui (x) and for 1 > CM > EP > 0, the maximum of
1

UEP (x) +UCM (x) equals ( +

2 . The difference x xCM is always positive, as well as the difference xEP
EP )
CM

[.
x . Therefore, x [xCM , xEP ]. Furthermore, the difference between x x is always positive when q [0, xCM

Conversely, the difference between x x is always negative when q ]xEP , 1]. Furthermore, the derivative of
] is positive. Conversely, the derivative of the difference
the difference x x with respect to q for q [0, xCM

x x with respect to q for q ]xEP , 1] is negative.

t
u
, which is constant for all values of q. It shows that the
Figure 3 traces the Kaldor-Hicks optimum xKH
increases the smaller the distance of q to one of
bargaining outcome x is inefficient. Indeed its distance to xKH
the ideal points. In summary:
when q [0, x [.
The result of the negotiation x is always lower than the efficient point xKH
CM
when q ]x , 1].
The result of the negotiation x is always higher than the efficient point xKH
EP
], the distance between x and x

Further, for q [0, xCM

KH increases in xCM . Starting at q = 0, the Nash

equilibrium is close to maximizing the sum of the institutions utilities xKH (see Figure 3). However, as q
approaches the ideal point of CM, the Nash equilibrium moves closer to CM 0 s ideal point, and it moves further
. Indeed, the margin of negotiation decreases with the utility that CM derives from the status
away from xKH
quo.

3 Discussion
3.1 The impact of codecision on the EU institutions
The Commission launches the procedure if and only if the anticipated result of the bargaining between EP and
CM increases its utility. The results of the lawmaking process are summarized in table 1.

Jenny Helstroffer, Marie Obidzinski

Table 1 Results of the procedure of codecision according to the relative preferences of EC, EP and CM
Preferences
CM > EP EC
CM > EC > EP
EC > CM > EP
CM = EC > EP

Ideal points
< x 6 x
xCM
EP
EC
< x < x
xCM
EP
EC
< x < x
xEC
EP
CM

xEC = xCM < xEP

Scenario A
q x
xCM
EP
q
q
q
q

Scenario B

q 6 xCM
x
indeterminate
indeterminate
x

Scenario C
6q
xEP
indeterminate
indeterminate
x
x

We find that the outcome of the codecision procedure depends on the location of the status quo relative to
the ideal points of the European Parliament and the Council:
If it is located in between the ideal points (scenario A in Table 1) negotiation always fails, since the CM and
the EP do not agree on the direction of the change of the standard. The status quo prevails. The Commission
is therefore indifferent between launching a proposal or not.16
<
In scenarios B and C, when the status quo is distant from the Commissions ideal point (either q 6 xCM
6 x , or x 6 x < x 6 q), the Commission always has an interest in launching the procedure.
xEP
EP
EC
EC
CM
In all other cases of scenarios B and C, the Commission decides to initiate the procedure only if its ideal
point UEC (x)
is superior to UEC (q). If the preferences of the Commission correspond to those of the Council
= x ), then the Commission initiates the procedure only if the status quo is situated outside the segment
(xCM
EC
and x .
joining xCM
EP
Remark 2 For the legislation to be changed, all three institutions must agree on raising the standard. Since the
Council has a lower ideal point, its position is of particular importance for raising the standard.

3.2 Illustrations in European lawmaking

Our analysis is valid in a range of EU policy areas. Indeed, it should apply to all cases in which the Council
of Ministers weights the implementation costs of a policy higher than the European Parliament, or indeed all
cases in which the two institutions differ instead in their weighting of the benefits of a policy.
Our model predicts that in the case in which the Commission aims to increase the standard,
1. The Commission tries to anticipate the codecision procedure outcome in its initial proposition;
2. The European Parliament agrees to raising the standard but makes amendments to increase it further;
3. The Council sees problems in raising the standard. It does not agree to the proposition, thus threatening
with a failure of the negotiation process;
4. Either the initial proposal is amended to accommodate the Council position or negotiation stalls.
We have studied various directives of the European Union in which the Commission aims to increase an
existing standard. They concern asylum law, gender equality, maternity leave and fishing. Some have resulted in
a common position, while others are still in the codecision process. They all follow the pattern identified in the
model. Common to all is that prior to launching the procedure, the Commission organizes a public consultation
in which the stakeholders voice their positions. The issues raised and the suggestions thus put forward flow
into the Commissions proposal for the directive.
Asylum The Commissions proposal COM (2008) 815 on asylum seeker reception conditions aims for both
higher and harmonized standards implying the respect of asylum seekers fundamental rights. The EP approved
this proposal with amendments, most of which aim to further increase the standard. The Council discussion
documents of the following two years mention, but do not express an opinion on, the directive. An informal
meeting and the Commissions proposal recast state that the Council it has difficulties finding a common
16 We have not assumed that making a proposal implies a cost for EC. Also, we have not taken possible gains from launching the
procedure, such as reputational gains, into account.

Codecision procedure bias: the European legislation game

position and that Member states are concerned about financial and administrative implications of the directive.
They require more flexibility, i.e. less harmonization. In its recast proposal of June 2011, the Commission takes
this position into account. It renders the directive more flexible, allowing for different applications in different
Member Countries. It also insists more on the prevention of abuse of the system. The recast proposal is awaiting
the opinion of the EP and the Council.
The Commissions proposal COM (2009) 554 on asylum procedures aims to increase the standard and
harmonize practices. It criticizes the wide margin of discretion used by Member States. It takes into account
the position of member states who worry about abuse and want some flexibility, and who were consulted before
the drafting of the proposal. While the subsequent Council discussions were very vague and came to no opinion,
the EP adopted the proposal in the first reading with a number of amendments, most of which reinforce asylum
seekers rights. The Commission adopted an amended proposal in order to make the negotiations progress. For
its recast, it took some of the EPs amendments as well as the ministers positions into account: the system
is made more flexible and therefore compatible with national legislations and administrations, and it combats
abuse more. This consists in moving closer to the position of the Council, while ensuring that the standard is
nonetheless elevated.
In both examples the Commission recast its directive when the negotiation was threatened with failure
by the Council. While it takes the European Parliaments amendments into account, it makes considerable
concessions to the Council.
Gender equality More concessions were made in the case of directive COM (2008) 636 on gender equality
of the self employed. This initiative follows a Commission report on the existing directive 86/613/EEC, the
practical implementation of which is judged unsatisfactory when measured against the primary objective of
improving gender equality. The EP adopted the proposition in its first reading with amendments. Following
the Council position,
(...) the Commission concluded that, whilst admitting that the position of the Council at first reading
does not correspond, on several key points, to its original proposal, the only way to allow the procedure
to move forward was to support the Councils position at first reading. (COM (2010) 347)
In order to save the negotiations, the outcome here corresponds exactly to the Councils demands. The
influence of the European Parliament is limited to clarifications. There seems to be a very strong negotiation
bias in favor of the Council as well as a real threat of maintaining the status quo, i.e. a directive implying a
lower standard in terms of gender equality.
Maternity leave Further, take the proposal for a directive on extending maternity leave COM (2008) 637.
The European Parliament approved the directive with amendments in its first reading in 2010. The Council has
not given an opinion in first reading; it has, however, discussed the proposal in several meetings. The press
releases state the following:
A very large majority of ministers (...) expressed concerns regarding the cost implications and emphasized that a directive should set minimum standards while respecting the principle of subsidiarity and
the diversity of situations in the different member states.(PRES/2010/331, 6 December 2010)
Several ministers expressed their concerns on the Commission proposal and/or the opinion of the
Parliament at first reading. Some ministers, given the diverging views, advocated that the Council
should consider not continuing its work on this topic, while others stressed that the work should continue.(PRES/2011/176, 17 June 2011)
Clearly, the Council weights the costs of the proposed policy more than the European Parliament. The
question for the Council seems to be about whether to continue the codecision procedure at all, or whether it
does not prefer the status quo. If it is to continue in the procedure, then it clearly aims to make considerable
amendments, reducing the scope of the proposal. This position corresponds exactly to the framework of our
model, and so does the expected outcome: either a halt to the procedure, or a modification of the proposal
greatly in favor of the Councils position.

10

Jenny Helstroffer, Marie Obidzinski

Fishery A final example is the recent proposal on the Common Fisheries Policy (CFP) COM (2011) 425. Its
aim is to ensure fishing and aquaculture activities that provide long-term sustainable environmental conditions
and contribute to the availability of food supplies as a response to overfishing and insufficient integration of
environmental concerns into the existing policy. Its aim is therefore to raise the standard of environmental
protection.
This document has not yet passed the phase of first reading. It has, however, been the subject of a first
debate in the Council of Ministers, giving place to the following press release:
The member states welcomed the general approach proposed by the Commission in the package for
the reform of the CFP. However, while praising the proposed objective of maximum sustainable yield
(MSY), several member states stressed the difficulty of reaching the objective by 2015 and would prefer
a more gradual approach. While the proposal to introduce a system of transferable fishing concessions
was generally considered a good basis for further discussion, many member states insisted that this
system should be managed at national level, with sufficient safeguards and flexibility.(PRES/11/253,
19 July 2011)
Here, the members of the Council, while agreeing on the benefits of such a policy, stress the difficulties of its
implementation at the national level. These difficulties can translate into political costs for their governments.
No position of the European Parliament has as yet been published, but there is no reason to believe that it would
insist as much on managing the policy flexibly and at a national level.
The conditions of our model are thus united. We can predict that if a decision can be reached in this matter,
it will be closer to the objectives of the Council than to those of the European Parliament, if the Council does
not block the process altogether.

4 Concluding remarks
In this paper, the outcomes of the codecision procedure are analyzed in terms of the relative influence of
the decision making institutions European Parliament and the Council of Ministers, and in terms of policy
outcomes. We show that the codecision procedure only succeeds to change the status quo on the condition
that the Commission, the European Parliament as well as the Council agree on the direction of the change.
This implies a high probability that at least one of the institutions will block the codecision procedure. We find
examples of the Council threatening to block the codecision procedure because it refuses the increase in the
standard proposed by the Commission.
Further, even if the negotiation leads to an agreement, we show that the outcome is biased towards the ideal
point of the institution that is closest to the status quo. In the legislative examples we find a bias towards the
Council position. Indeed, in threatening to block the codecision process altogether and to maintain the status
quo, the Council has considerable bargaining power. This is recognized by the Commission and the European
Parliament who agree to far-reaching concessions in order to raise the standard at all.
As predicted in the model, the illustrations also show that the Commission seeks to anticipate the positions
of the institutions, adopting its proposal ex ante to a standard that it expects to be acceptable to both institutions.
Its anticipations are not perfect: we have shown that the Council can nonetheless block the procedure. In these
cases, the Commission introduced a recast proposal, thus making concessions to the Councils concerns.
Finally, we show that the codecision outcomes, because of their bias towards one of the institutions ideal
points, are not Kaldor-Hicks efficient. Only if the status quo is very distant from both institutions ideal points
do they approach the maximization of the two institutions total utility. The closer the status quo to one of
the ideal points, i.e. the more utility one of the institutions derives from the status quo, the more bargaining
power it possesses, and the closer the bargaining solution is to its optimum. As a consequence, the outcome is
increasingly distant from social efficiency in terms of the Kaldor-Hicks criterion.
In practice, we have seen that the standards are biased towards the Council position. Indeed, it is the Council
that weights the costs of the increase of standards highest. This implies that in spite of the apparent equality
of the European Parliament and the Council, the Council retains superior bargaining power. As a consequence,
the standards that result from the codecision procedure are systematically below the social optimum.

Codecision procedure bias: the European legislation game

11

A European institution that we have neglected in this analysis is the European Court of Justice (ECJ). While
it is not officially part of the codecision procedure, it does have an influence in shaping European policy. Ex
post, its role increases with the status quo bias: if the legislative bodies have difficulties finding a compromise,
the ECJ creates case law.17 The Council and the Parliament could anticipate this change in the status quo and
take it into account in their negotiations.18

Acknowledgements We would like to thank Pierre Picard, the members of the RESET seminar at the University of Luxembourg,
Dieter Schmidtchen, Francois Fontaine, the participants of the AFSE days and Nuno Garoupa for valuable comments on earlier
versions of this paper.

17

See for example Cooter and Drexl (1994) and Tsebelis and Yataganas (2002).
For example, Cyprus Interior Minister Neoklis Sylikiotis is quoted as saying that if EU members refused to work together,
the European Court of Justice would be left to wade into asylum issues ECRE (2012). The ECJ has indeed passed judgements
invalidating EU asylum law. See Court of Justice of the European Union (2011), Press Release No. 140/11.
18

12

Jenny Helstroffer, Marie Obidzinski

Proof of Proposition 1
Solving the program (1) is equivalent to solving the following equation:
A2 x2 + (2AC B2 )x +C2 = 0

(2)

with
A = 2EP CM
3

B = (EP + CM ) 2EP CM q
2
EP + CM
C = 1
q
2
] [x , 1] with x = 1 and x = 1 .
The determinant of the equation is positive for all q[0, xCM
2
2
EP
EP
CM
4CM
4EP
p
2
2
2AC + B (1 (B 4AC))
(3)
x1 =
2A2

Therefore, equation (3) has two solutions.

The relevant one necessarily belongs to the bargaining set S = [xCM , xEP ]. For all

, we find that x = (2ACB ) is always the relevant solution. For all q > x , x = (2ACB )+ is always the relevant
q < xCM
1
EP 2
2A2
2A2
solution.

, x ]. FurtherWe show that xEP + xCM 2x1 > 0 when q = 0. In other words, x1 is lower than the middle of the interval [xCM
EP
d x1

more, we know that x1 = xCM if q = xCM . Deriving x1 with respect to q, we show that dq < 0 on [0, 1].
Indeed,

2ec(E + 4ce q 3c 3e)(E 4ce q c e)

d x1
1
=
[
]

dq
32c2 e2
qE
q

with E = 16c2 e2 q 8c2 e q + 9c2 8ce2 q 14ce + 9e2 , and E + 4ce q 3c 3e < 0 and E + 4ce q c e > 0 for all

q [0, 1], 0 < e < c < 1.

+ x 2x > 0 when q = 1 and
Furthermore, we obtain that xEP
2
CM

2ec(E + 4ce q 3c 3e)(E 4ce q c e)

d x2
1
=
[
]

2
2
dq
32c e
qE

with E + 4ce q 3c 3e < 0 and E + 4ce q c e < 0 for q [0, 1], 0 < e < c < 1.
Even at the extremities q = 0 and q = 1, there exists a biais toward q.

t
u

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