Monday 25 July 2016

The EU and Democratic Deficit



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
Goodhart, M. (2007) Europe’s Democratic Deficits through the Looking Glass: The European Union as a Challenge for Democracy. Perspectives on Politics, 5 (3) 567 – 584

Majone, G. (2014) Rethinking the Union of Europe Post-Crisis. Has Integration Gone Too Far? Cambridge: Cambridge University Press.

Majone, G. (2005) Dilemmas of European Integration. The Ambiguities and Pitfalls of Integration by Stealth. Oxford: Oxford University Press

Van der Vleuten, A. Gendering the Institutions and Actors of the EU in Abels, A & Mushaben, J.M., Eds. (2012) Gendering the European Union.  New Approaches to Old Democratic Deficits Gender and Politics Series 41-62 Basingstoke: Palgrave Macmillan

Verdun, A. (1998) The Institutional Design of EMU: A Democratic Deficit? Journal of Public Policy,   18 (2) 107-132

Weale, A. (2005) Democratic Citizenship and the European Union. Manchester: Manchester University Press


Zoller, E. (2005) The Treaty Establishing a Constitution for Europe and the Democratic Legitimacy of the European Union. Indiana Journal of Global Legal Studies 12 (2) 391 - 408

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