The European Union is
said to be suffering from a democratic deficit.
With particular reference to its various institutions and respective
legislative powers, how accurate is this statement
Barry Gilheany ©
This
essay analyses the alleged democratic deficits of the institutional structure
of the European Union (EU). It considers
the functioning of EU institutions and assesses where power lies within the
Union. It then engages with democratic
theory and the nature of democratic deficits and measures EU bodies against
precepts of democratic theory such as popular sovereignty. It concludes by largely agreeing that the EU
is suffering from a democratic deficit and is experiencing a consequent
legitimacy crisis among the citizenry of the Union. To address the problem of the EU’s democratic
deficit it proposes that democratic theory be reformulated to provide adequate
theoretical underpinnings for the EU and other transnational bodies.
The
problem of insufficient democratic legitimacy of the European project has only
been seriously discussed since the late 1980s and has become increasingly
paramount with the steady growth of European competencies culminating in
monetary union. The absence of democracy
within much of the governance of the EU is formally recognised in Article 10(1)
of the Lisbon Treaty which claims that the Union’s functioning is based on the
principle of representative democracy.
The standard explanation of the limited democratic legitimacy of the EU
has been first the absence of a directly elected European Parliament and then
the inadequate powers granted to the supranational parliament. The member states of the Union have been
unwilling to plug the gaps in its democratic legitimacy through, for example,
holding popular votes to decide on crucial matters of integration, most notably
the “Fiscal Compact” under which member states of the Eurozone have had to
accept stringent austerity measures arising out of the monetary crisis which
swept it in 2010 (Majone, 2014: 179-180).
Majone (2014: 182) argues that the primacy of
process over results is a key element of the political culture of the EU, and
in a procedural perspective, ‘formal democracy’ is deemed sufficient for the
purpose. He furthermore claims that the disconnect between elites and citizens
is an outcome of the basic approach to European integration followed since the
inception of the EEC. This ‘integration
by stealth’ confirms it as an elitist project.
The EU operates as a multilevel system. Its main actors are the five core
institutions: the European Commission, the European Parliament (EP), the
Council of the EU (in short: Council), the European Council, and the European
Court of Justice (ECJ).
The term ‘Commission’ actually refers to the
President and the College of Commissioners, who serve five terms. The role of the President is analogous to
that of a Prime Minister. He or she is
responsible for introducing major policy initiatives. The European Council (composed of the leaders
of the national governments) nominates a candidate by qualified majority; the
choice of the candidate has to reflect the outcome of the elections to the
EP. The nominee is then elected by the
EP. The President forms the College of
Commissioners based on nominations submitted by the member states. After conducting a formal hearing with each
potential Commissioner, the EP must approve their collective appointment by a
majority vote. The Commission includes
one delegate per member state, totalling 27 Commissioners in all. Each
Commissioner is responsible for a specific policy domain and the Commission has
its own bureaucracy. The Commission is a
supranational body and through its monopoly of policy initiation plays a critical
role in the development of European legislation. Policy making is thus its main task. It also acts as the guardian of the treaties
and of European law. Together with the
Court of Justice, it monitors the application of EU rules (Abels & Mushaben
Eds, 2012: 42-47).
Until 1979 the EP functioned as a part-time assembly
of nationally appointed parliamentarians.
Since then, direct elections have been held every five years in member
states. The EP consists of 751 members
who represent their political parties rather than their countries. Seats are allocated in proportion to the
number of inhabitants per member state; the smallest member states hold six
seats and Germany, the biggest one, occupies 96. The EP elects its own
President for a (renewable) term of two and a half years and every
parliamentarian belongs to one or more parliamentary committees of which there
are 20 (Abels & Mushaben, Eds, 2012: 47-48).
The EP has legislative, budgetary and supervisory
tasks. It has legislative powers in that it can propose amendments to
Commission policy initiatives which, after full debate, move on to the Council,
which reaches a common position on the proposal and amendments. Draft legislation can only become law if a majority
in both institutions approve it. It has
budgetary powers in the levies that it raises on agricultural and industrial
imports and the percentage of VAT collected in member states. It and the Council approve the annual draft
budget drawn up the Commission and uses its powers to ensure and increase
funding for programmes involving diversity and gender equality among
others. It supervises the Commission
through the formal election of the President and through its confirmation of
the College of Commissioners. The
Commission is held politically accountable to the EP through the use of written
and oral questions, answered during the EP’s plenary sessions. In the case of misconduct or dereliction of
duty involving individual Commissioners, a successful EP censure motion can
force the entire Commission to resign as happened in March 1999 over
accusations of fraud and nepotism by Commissioner Edith Cresson (Abels &
Mushaben, Eds, 2012: 48-49).
Formally known as the Council of Ministers, the
Council was established in 1951, as an intergovernmental counterweight to the
supranational High Authority (the Commission’s predecessor). It comprises ministerial level
representatives from each member state.
The Council Presidency rotates among all member states. It is held by groups of three members for a
period of 18 months, each member chairing for six months. The Council’s main task is decision-making,
alone or jointly with the EP. Until the
mid-1980s the Council had to approve all draft legislation unanimously.
Qualified majority voting (QMV) was introduced in 1986 to overcome
stagnation. As from 2014, a ‘qualified
majority’ consists of approval by at least 55 per cent of the member states,
representing at least 65 per cent of the total EU population with a blocking
minority consisting of at least four member states (Abels & Mushaben Eds,
2012:50-52).
The European
Council consist of the heads of state or government (assisted by their
Foreign Affairs Ministers), the EU President, the Commission President and the
High Representative for Foreign Affairs.
It meets twice every six months and convenes special meetings at crisis
moments such as that in the Eurozone. As
the EU powerhouse, it takes on the big decisions such as introducing the common
currency or common asylum policy. As a
purely intergovernmental body, it renders decisions based on unanimity and
which are not binding, functioning as soft law, and guiding the programmes of
all other institutions (Abels & Mushaben, Eds, 2012: 53-54)
The Court of
Justice acts as an umpire, rules on complaints and guides the national
courts. As a result of the Lisbon
Treaty, it now consists of the Court of Justice, the General Court and the EU
Civil Service Tribunal. The Court of
Justice (COJ) serves as the main court.
The General Court, established in 1989 to reduce the COJ’s workload,
establishes European jurisprudence on competition and commercial law. Both the
COJ and General Court have one judge from each member state and the Court is
assisted by eight Advocates-General (Abels & Mushaben, Eds, 2012: 54-57).
Much of the comment on the EU’s democratic deficit
focuses on the monopoly that the Commission enjoys in the initiation of
legislation. In her critique of the
“hollow European democracy”, Zoller (2005: 394-395) in remarking that
legislative power in the EU is exercised within the “institutional triangle” of
Parliament, the Council of Ministers and the Commission asserts that such locus
of decision-making does not conform to two central features of the model
representative democracy based on popular sovereignty (which she explains using
Abraham Lincoln’s celebrated words, means “government of the people, by the
people, and for the people”). Firstly,
citizens can be subject only to laws to which they have consented by electing
those who make them. Second, the
enforcers of the law must be accountable to the people, either directly by
elections and the sanction electoral defeat, or indirectly by ministerial
responsibility before Parliament, which is itself accountable to the people. She pointedly asks these rhetorical
questions: Are these bodies elected by the people? Do they govern in the name
of a mandate given to them by the people?
Whom do they represent? She goes
on to compare the status of the Commission in the ultimately futile EU
Constitution Treaty of 2005 to that of the monopoly on legislative activity
given to the executive branch in Napoleon Bonaparte’s authoritarian
Constitution of Year VIII adopted in 1799 (Zoller, 2005:399)
I concur with the view that the Commission’s
monopoly on initiation of legislation is a serious impediment to the
democratisation of the European project; a problem which is exacerbated by the
independent status of the body. The
“co-decision procedure” whereby the Parliament and Council ratify or reject the
bills presented to them by the Commission does give a formalistic semblance of
democratic deliberation to the process but the very fact of the EU’s direction
of travel away from treaty based legitimacy towards that of constitutions is
solid proof of the crisis of democracy at the heart of EU decision making. The
decreasing turn out at successive EP polls and growth in electoral strength of
Eurosceptic parties on the radical right and left spectrums furnish further
proof at the grass-roots
So what is the meaning of democratic deficit and
what is its particularity in the EU context? Hitherto the term has meant an
incomplete development of the institutions, policies and political processes
that are taken for granted in a representative democracy. However, in the discourse on European
integration, Majone (2005: 37) remarks that ‘democratic deficit’ is also a
label to denote a set of problems that arise whenever important policymaking
powers are delegated to politically independent bodies such as independent
central banks and regulatory authorities.
In such contexts, democratic deficit refers to the
legitimacy problems of nonmajoritarian institutions that discharge important
public functions but which, through design, are not directly accountable to
voters or their elected representatives.
Majone (2005: 37) cites the operation of privatised public utilities in
the UK outside the traditional framework of democratic controls as examples of
this type of problematic independence.
The legitimacy problem of nonmajoritarian
institutions are more serious at the EU level than at the national levels
because, firstly the regulatory function is in relative terms much more important in the EU than in member
states and secondly the difficulty in identifying the distinctive institutional
competence of independent bodies. The
plethora of functions assigned to the Commission that was discussed earlier
expands the scope of its discretionary powers and also make accountability by results of the
institution’s performance and holding it democratically accountable almost
impossible (Majone, 2005: 39).
Another set of problems have emerged with another
nonmajoritarian institution based in the EU – the European Central Bank
(ECB) Because it’s independence is
treaty based, it has a stronger legal foundation than the independence of
national central banks. Article 88 of
the German Basic Law had to be amended expressly to facilitate the transfer of
the powers of the Bundesbank to the ECB.
This means that the independence of the ECB forms part of German constitutional
law and any attempt to change its status would require an amendment of the
German constitution as well as ratification by all member states (Majone,
2005:37).
Verdun (1998:
107-110) sees the ECB as part of the ‘moderate’ democratic deficit within
Economic and Monetary Union (EMU). For the introduction of the euro was
accompanied by an independent ECB which is solely responsible for monetary
policy in the Eurozone. Not only was
there an absence of a European institution to flank the ECB but, much worse,
there was the absence of specific domestic features and a government to hold it
to account. She prophetically posed the
question as to which political authority would be held responsible it EMU was
to lead to uneven distribution of costs and benefits across the Eurozone as has
happened so catastrophically in 2010-2012.
Thus so far this paper has shown the shortcomings of
EU institutions in standards of democratically accountability to be almost
self-evident. But what type of democracy
and what precepts of democratic theory are EU bodies to be measured
against? Weale(2005:1-9) postulates that
one way of thinking about democracy is to see it as the political means by
which a body of citizens can together determine the conditions of their collective
life. Such a distinction presupposes a
distinction between those who are part of the body politic and those who are
outside the scope of collective self-determination. Within the account of citizenship as it
emerged in West European democracies is the location of the rights and powers
of citizenship within the nation-state.
Weale (2005:7) cites the doctrine of T.H. Marshall that citizenship
requires “a sense of community membership based on loyalty to a civilisation
which is a common possession”. This
democratic-welfare-capitalist state conception of citizenship this rested on a
sharp demarcation between insiders and outsiders. Thus within nation-state
polities there is a clearly recognisable sense of political community or demos; in the ‘Europe without Europeans’
there is no such concretised identity.
How to create a European demos
is one of one of the challenges for democracy that, in the opinion of Goodhart
(2007: 568-570), the EU poses. He argues
that in pointing out the purportedly insufficiently democratic mechanisms
within EU decision-making organs; scholars have set up democracy as a problem
for the EU and thereby denying important normative questions about democracy
itself. These relate to the normative
dimension of sovereignty and its centrality to democratic theory. Sovereignty with its distinctive account of
rightful rule within a particular territory is a historically-conditioned construct that emerged with the emergence
of Westphalian states and the Westphalian states system from the 17th
century (Goodhart, 2007: 572-575).
However sovereignty is an increasingly redundant tool in the
understanding of our globalised, interdependent world. Because democratic theory has traditionally
taken the normative/empirical framework for granted, it can never view the EU
as democratic because it is not the kind
of entity that can be democratic on its account (Goodhart, 2007: 575).
Because the EU really is a new political phenomenon
located in a configuration of rule incompatible with modern democratic theory’s
valorisation of the Westphalian order; it is necessary to work out what
democracy means within this new configuration of rule. One element of this project is the
reconstitution of the demos as civic
rather than ethnic and the recognition of it as a product, rather than a
prerequisite, of European democracy.
Following on from that, Goodhart (2007: 576) cites Habermas’ call for a
federal European state based on an increased capacity for collective will-formation
created through civic solidarity or “constitutional patriotism”. He then goes on to connect the European
debate to the need to find an account of democracy to accommodate transnational
authorities such as the ICC, IMF, WTO and World Bank as well as actors such as
the UN, TNCs and NGOs which would address global issues such as environmental
protection, global economic injustice and devising effective means for
legitimate humanitarian intervention. But he cautions that the problem is not
to locate the sovereign but to accept a world in which democracy can no longer
presume that one exists (Goodhart, 2007:579).
In conclusion, the crisis which has rent the
Eurozone has thrown into sharp relief the democratic legitimacy difficulties
that many have identified with the multi-levelled governance body that is the
modern EU. Foremost among these are the
legislative monopoly enjoyed by the European Commission. However addressing the EU’s supposed
democratic deficits may require breaking with the Westphalian template of
popular sovereignty to which modern democratic theory is beholden.
Bibliography
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584
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