The Luxembourg Compromise is, in fact, an agreement in case very important national interests are at

The Luxembourg Compromise (also known as the Luxembourg Accords) was an agreement between the six member states in 1966, at an extraordinary session of the Council of Ministers. This provided a climax to the institutional crisis that had started in 1965.

In 1965, the Commission proposed a package deal to the Council involving the Common Agricultural Policy. Despite the willingness of the other five member States, France remained opposed to the deal.

A deadline was subsequently set for completion of negotiations. However, when the Council failed to met the deadline, the negotiations were ended by the French President of the Council, refusing to allow an extension for further negotiations. Consequently, all French representatives were withdrawn from decision-making institutions within the Community, known as the 'policy of the empty chair'. This was seen to be a culmination of rising tensions in the Community, originating from the French suspension of negotiations over British membership to the Community. Furthermore, under the leadership of De Gaulle, France became increasingly anti-supra nationalist.

Thus during the seven months in which France employed the policy of the empty chair, reservations were made over the entry into the final stages of the transitional period of the Community. In particular, this stage required majority voting over certain Council decisions where previously unanimity was needed.

Under increasing domestic pressure and fear that the member states would carry out Community affairs without their participation, France attended the extraordinary session called by the Council.

The main agreement of the Compromise was over majority voting1 . It was stated that when the Council were taking decisions through majority voting, if 'very important interests'2 of a member state were at stake, the Council would attempt to obtain a decision acceptable to all members within a 'reasonable time'3 .

France though, it was noted, were opposed to this. Declaring that negotiations in Council, in such a situation should continue until a compromise was reached. This being contrary to the view of the other member states.

Despite disagreeing on the actions to be taken in event of failure to achieve unanimity, the member states agreed that this should not affect the normal procedure of the Community. however, it was seen to have a profound effect upon the workings of the Council.

Although the Luxembourg Compromise had no legal effect on the EEC Treaty, in practice, it was the equivalent to an amendment to Council procedure. For the French interpretation of the agreement was seen to prevail within Council, except for when budgetary matters were concerned. Consequently, votes were rarely taken, with negotiations continuing until the outcome was acceptable to all.

However, this is seen to be legally invalid, breaching a number of provisions under the EEC Treaty. Under Article 148, the use of majority voting is stipulated unless otherwise provided in the Treaty. The requirement for unanimity in the Compromise, therefore is seen to breach this provision. Furthermore, with the Compromise being seen to amend Council procedure, under Article 2364 though, certain procedure must be followed to amend procedure which has not been observed here. In addition, Article 4(1) provides that the Council is prohibited from acting outside of its powers. Through requiring unanimity where not provided for, the Council is seen to have breached this provision.

The Luxembourg Compromise may be seen as not actually an agreement at all, but a mere declaration of opposing views by the member states. The French view though has become a de facto convention of the Council.

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Despite the Compromise being constitutionally suspect, it has been invoked by Member States in the Council of Ministers, albeit rarely5 . Most notably, in 1982, the United Kingdom attempted to veto an agricultural price package . This though was a tactical move to pressure the other Member States in accepting a reduction in the British budgetary contribution to the Community. The veto was overlooked and the package passed with a qualified majority. Subsequently, it was declared that the Luxembourg Compromise could only be invoked to protect national interests which were linked to the measures in question, thus, narrowing the scope of veto.

In 1986, the veto was successfully invoked by Germany over the proposed reduction in of cereal and colossi prices by 1.8%. Subsequently, the Council failed to set prices, resulting in the Commission taking provisional measures to fix prices, this being against the will of Germany.

However the successful invocation of the veto raises questions over what actually constitutes a a 'very important interest'? For within the communiqué there is no definition or guidelines regarding this.

Therefore only from practice may this question be answered. It is unlikely though that a cut in the price of cereal and colza of only 1.8% would have a substantial effect on Germany as a whole for its population to regard it as a very important national interest. Moreover, a cut in the price of goods is more likely to benefit the majority if Germans, as consumers. A similar argument maybe used regarding the Irish invocation of the veto over a reduction in beef prices in 1986.

After the Single European Act in 1986, many felt that the Luxembourg Compromise would no longer be relevant. Under Articles 13-19, in order to complete the internal market by the 1992 deadline the Act provided that rules on unanimity within the Council should be relaxed, and replaced by majority voting. However, Member States such as the United Kingdom, France and Denmark6, in Parliamentary debates regarding the Act, made specific declarations that the Luxembourg Compromise was not effected by any provisions in the Act.

These views were supported by the Greek invocation of the veto over in 1988, concerning a proposed devaluation of the drachma. This resulted in the proposal being adjourned until the next session of the Council.

Whilst the recognised effect of the Luxembourg Compromise is to give the Member State a veto over Council decisions, where very important national interests are at stake. The application of the veto is seen to be limited though. For if there is insufficient support within the Council, the decision will be taken through a qualified majority. Hence without recognition of the issue being of very important national interest by the other Member States the veto is useless.

Within the Council there are divisions over the Luxembourg Compromise. Italy and the Benelux countries are opposed to its use, whilst Germany and Spain are seen to be ambivalent over this matter, the remaining Member States are likely to support the invocation of the veto7 .

Furthermore the veto is not seen to indefinitely obstruct the Council proceedings or enable the Member State using the veto to have its interests totally protected. Although the Council stipulated that decisions were to made within a reasonable time limit where unanimity was not reached, what this actually constituted was not defined. However through Council practice this has seen to be an adjournment of the session to the next meeting of the Council8. Where in the time between the sessions there will be informal meetings and much work done within COREPER to try and reach a compromise.

The Luxembourg Compromise will be overlooked where other interests are deemed to take priority. Such interests are likely to involve the objectives of the Community. This was seen in the British invocation in 1982, for if the Council was seen to yield to such pressure this would have set a precedent for the other Member States where Community affairs were to their dislike. Moreover, it would have seriously undermined the independence and integrity of the Council and therefore the Community.

The Council has further asserted its independence though through resisting to change any key elements of the proposals already passed, despite pressure from the Member States. Thus restricting the scope of the veto to the decision-making process.

Although the European Court of Justice has yet to comment on the Luxembourg Compromise, from case law it maybe deduced that the Court is likely to overrule the veto. In Einfuhr-und Vorratsstelle fur Getreide und Futtermittel v Koster9, it was held that the balance of the institutions must not be disturbed, the veto though is seen to increase the power of the Council over the other institutions. Whilst in Defrenne v SABENA10, the Court resolved that derogation from Treaty provisions would have no legal effect. However with the Luxembourg Compromise having effected such Community matters so significantly, directly and indirectly, that the Court would be unable to declare which decisions were to be invalid. It is unlikely that any such declaration will be made in the future, with the use of the veto ever diminishing. Especially with the amendments to the Rules of Procedure in Council in 198711, which provided for greater use of majority voting. Hence after agreeing to an extension in the use of voting, ministers are unlikely to oppose this with a call for unanimity.

The Commission has publicly opposed the use of the veto on several occasions, calling for majority voting to be used where the Treaty provides12. Nevertheless it has acquiesced and co-operated with the council where the veto has been invoked.

Thus, the veto maybe seen as more than merely 'an agreement to disagree in case very important national interests are at stake' but a de facto amendment to procedure within the Council. The agreement is also applied where there is not a very important national interest but an interest vital to a certain group within the nation such as cereal growers.

It is arguable that only ministers should be allowed to invoke the veto, with no use permitted below ministerial level. In 1986, French minister Bosson, expressed this view, announcing that whilst the veto had been employed only on only ten occasions in the Council of Ministers, it had been invoked over 240 times below ministerial level (COREPER and working groups)13.

At present, in the Council, non-ministers are allowed to vote but only under the 'cover' of another minister. The non-minister will be acting on instructions of their Government. However, if a very important national interest is at stake, it is likely that the relevant minister will attend the meeting. Moreover, a minister is likely to be of greater influence and authority in arguing the interests at stake, thus maybe able to gain a more favourable outcome than the non-minister.

It is the use of the veto at COREPER or the working groups though which raise the greatest controversy. For the invocation of the veto at this level is said to prejudice the discussions at ministerial level which are often of a political nature14. Thus, where matters of a political nature are involved, only ministers should be allowed to participate. For the ministers are required to hold political office, hence are accountable not only to their national Parliament but also to the public. Civil servants are not accountable, thus should prohibited from participating in politics, as in their Member States. If there is increased accountability, the national Parliament will be seen to have greater influence over Council policy.

The use of the veto at ministerial level though is seen as a last resort measure, to be invoked only if negotiations prove unproductive in protecting vital interests. Invocation is thought to have a high political cost both domestically and within the Community, where there will inevitably be a straining of tensions with the Member States. Therefore, the indiscriminate use of the veto is prevented.

Invocation of the veto at COREPER or the working group level is not seen to be formal. Usually this involves the representative of the Member State, whose interests are at stake, indicating that if a compromise is not reached before the work is passed onto the ministers, the veto will be applied in the Council of Ministers.

Therefore, it maybe claimed that the prohibition of the use of veto, below ministerial level will lead to an increase in its use at ministerial level. For where the veto is invoked below ministerial level, COREPER and the working groups will attempt to obtain a satisfactory agreement before the matters reach the Council. With the representatives of COREPER and the working groups being permanent staff in Brussels, there is a frequent contact and communication with their counterparts, thus reaching a compromise maybe seen as easier than at ministerial level. Furthermore, there is seen to be lees flexibility at ministerial level, for once the veto is invoked, it becomes politically difficult for the minister to withdraw the veto and accept that vital national interests will be overlooked.

However, it is argued that despite this relative ease, only those who are accountable should be permitted to decide on policy which effects very important national interests. Moreover, it is likely that the public will only be informed of invocation at ministerial level and not below, thus there is a lack of knowledge regarding how their affairs are being decided.

Restricting the use of the Luxembourg Compromise is seen to encourage inter-governmentalism though. For the Council is the greatest legislative body within the Community, but is comprised of representatives whose main priority are the objectives of their government and not the Community. Hence the availability of the veto is seen to detract from the Community's objective of 'ever closer union', providing an opportunity for Member States to place their interests above of that of the Community, where conflicts arise.

The Luxembourg Compromise can therefore be seen as an inter-governmental means of protecting national interests. It has developed from being 'an agreement to disagree' to a rule of procedure in the event of vital national interests being at stake concerning the matter in question. Practice though has shown such vital national interests to often involve benefits to farmers which may not actually benefit the country as a whole. This though should be available at all levels of the Council in order to increase productivity, through ease of passage at the ministerial level, despite the fears of inadequate accountability.

Unanimity does have advantages though, in regard to the proceedings of the Community. For where the decisions are reached through unanimity the decision is seen to be of greater significance. Consequently, the member State is likely to find the decision more acceptable and translate it into national law with greater haste.

With the possible enlargement of the Community in the future, unanimity will be even harder to achieve with such divergence of views. The Luxembourg Compromise though is likely to remain due to reluctance on the part of the Member States to reduce protection of their interests. The Community has been seen to acquiesce to this view, for in the Treaty on European Union, there were no new provisions effecting the use of the veto, despite the calls to extend majority voting.

Thus the Luxembourg Compromise is likely to continue to effect Community matters but to a lesser extent with Member States now being seen as more flexible and willing to compromise. This is due to the recognition of the benefits of the Community and especially the internal market.