Dr Robert Grzeszczak
______
Katedra Nauk Prawnych
Centrum Studiów Niemieckich i Europejskich
im. Willy Brandta na Uniwersytecie Wrocławskim
Democratic Deficit in Community Structures
The beginning of the European Communities and the European Union are well known. The three Communities, as will be remembered, emerged as specialist European institutions of an economic nature. The remaining two, following the dissolution of the European Coal and Steel Community, now constitute the main pillar of the European Union established by EC member states under the Maastricht Treaty,[1] which was later amended by the Treaties of Amsterdam[2] and Nice.[3]
Charles de Gaulle wanted the continent to remain a Europe des patries, but the Union has become a supranational entity, with national parliaments successively and voluntarily ceding thereto significant sections of their authority, thus scaling down their own basic functions. According to Article 1 of the Treaty on European Union (TEU), its major objective is to create an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.[4] This is expected to help maintain and further develop democratic decision-making procedures, democratic governance and, consequently, a democratic Union. For the time being, though, this remains a vision to be pursued.
The European Union has yet to attain the planned level of development. It is neither a confederation nor a federal state. Nor is it an international organisation in the classic meaning imparted to the notion by international law. As a matter of fact, it is a mixtum compositum sui generis that may develop into a sui generis federal state. The member states retain their sovereign authority, even after ceding much of it to the Union,[5] and national parliaments enjoy substantive powers.
The institutional structure of the European Union and its decision-making mechanisms are out of keeping with the model dominant among European states. Under the founding treaties, the national parliaments, which are the principal legislators in member states, are deprived of any direct participation in Community law-making, while the European Parliament has not yet been vested with powers comparable with those enjoyed by representative bodies in parliamentary systems of the Fifteen.
All this gives substance to claims about the Union’s “democratic deficit.” In a broader political context, this deficit has been perceived as connected with a decline in public support for the idea of deeper and broader integration observed in countries that historically founded the Union (France, Germany) and also those which, while joining at a later stage, have derived immense benefits from integration (Ireland).
The formation of the Communities gave rise to a dynamic expansion of Community law. As a special manifestation of the integration processes among states and peoples, this law merges with national laws and becomes part thereof.[6] This naturally has the effect of substantially changing the role of national parliaments, breaking their legislative monopoly. The national representative assemblies have lost their competences to the Community bodies over which voters can exercise only indirect influence (save for the European Parliament, under Article 190 TEU). Mechanisms of democratic control over legislative processes originally developed within states, but now, with the emergence of the Community legislator, they no longer guarantee democratic legislative procedures. Changes leading towards democratic legitimization through increasing powers of the European Parliament would represent an opening to the federalist concepts of a Common Europe.[7]
Along with the proposals to strengthen the European Parliament as a means of overcoming the EC/EU shortage of democratic legitimacy, an increasing stress has been laid—especially since the emergence of the single market—on the need to enhance the national parliaments’ role in integration processes. This line of reform, however, poses a host of legal problems related to a new delimitation of powers. These have been tackled by the European Convention set up in 2001.
Another direction taken in an effort to meet the democratic challenges is devolution, bringing decision-making closer to the people.[8] It is only reasonable to assume that an integration process involving extended central, supranational decision-making centres will not necessarily help achieve the integration goals. If integration is to be broad-based, it must be approved—or at least must not be vehemently opposed—by the peoples and the major social forces concerned. Their aspirations must be taken into account, and various national and social interests must be carefully weighed up. Within this dimension the role of nation-states comes to the forefront, and sovereignty assumes functional qualities.[9]
At this point more doubts emerge about how to construe the notion of sovereignty of the states and peoples[10] taking part in the integration process.[11] There can be no doubt that the notion of an EU member state’s sovereignty has been evolving in step with the changes going on in a uniting Europe.[12]
In addition to legislation, another major domain for national parliaments is the separation and balancing of powers and control over the executive branch of government. The pursuit of the controlling functions is the essence of a democratic state. But, as many writers point out, the formulas of control procedures currently available to national parliaments are—in the context of their democratic nature—more apparent than real.[13] This claim can be substantiated by analyzing the constitutional principles governing the exercise of control common to all EU member states, and by comparing them with the controlling procedures applied to Community matters.[14]
Democracy
The legal and political order of the contemporary world is founded on democracy. This system is construed as a constitutionally-defined way of political and social life based on the principle of equality and freedom of individual members of a sovereign nation (people), where these can exert the legally-guaranteed direct or indirect influence on decision-making at the state level, and where they legitimize and control the activities of supreme state organs.[15]
In a contemporary democracy state decisions are made by the people via majority voting while respecting minorities’ rights; these are not only legislative but also other state decisions relating to the executive and the judiciary. All state organs are bound by the will of the people and the laws laid down, directly or indirectly, by the people, and all state organs are subject to control by the people.[16]
The authorities in the democratic system act on the basis of transparent and accurate legal procedures within which the decisions by state organs are predictable.[17]
Deficit of Democratic Legitimacy in EC/EU Activities
The structure of the Communities and the European Union is inconsistent with domestic democratic standards as followed in the member states’ internal systems. The institutional pattern of European institutions and their decision-making mechanisms differ from the dominant systemic model on the European continent.[18] Yet this incompatibility of national arrangements and Union structures is not the cause of the democratic deficit.[19] Some writers’ proposals to transplant into the EU well-tested national legal procedures—or at least those where a measure of convergence can be found throughout the bloc—are not convincing.
Not being a state, the European Union cannot be compared with state institutions. National parliaments, the supreme legislators within national states, are not given any place in the Community legislative process under the founding treaties. And the European Parliament, whether in the beginning or after the reforms of the 1990s, has not been vested with any powers commensurate with those traditionally enjoyed by national legislatures. The decision-making process continues to exclude any real participation of the European Parliament, thus leaving out the national representatives.[20]
As the sole EU institution based on direct electoral legitimacy, the European Parliament and its position within the system are perceived by the constitutionally-oriented school of Community law as a source of the democratic deficit. The only organ directly elected by the sovereign (the people), it is stressed, does not enact the highest Community norms. Even after Amsterdam and Nice the Union has been criticized as an insufficiently democratic institution. The European Parliament’s position within the system has not been changed in any significant manner by the extended scope of co-decision procedure, the right to approve the Commission’s make-up under the double-investiture procedure, or by the door opened for a vote of censure. The European Parliament is not the main actor in integration processes. It is now mostly an instrument to legitimize the decisions the member states’ executives have already taken, with a vast contribution from the Community’s administrative apparatus. Hence it is a tall order indeed to imagine the EU’s democratic deficit being overcome, even in a hypothetical pan-European state where the parliament would express the will of the pan-European sovereign and be vested with matching powers—if only because of the scale of the sovereign and the coherence of its will.[21]
The question of democratic deficit is as old as the Community itself. Its existence is presented in a fairly concurring manner in European literature.[22] Authors stress that the democratic deficit is underpinned by the relationship between the European Parliament and the Council of the European Union. Consequently, calls are sometimes made for a change in the significance of these two bodies’ powers, e.g. by authorising the Parliament to approve each instrument emerging from the Council of the EU.[23]
In a characteristic feature of Community legislative processes, there has been a steady rise in the legislative output of the administration, which, while organizing the satisfaction of collective needs, has been generating a kind of subsystems of law that often modify the legal norms of the highest order. This has bred a crisis of legitimacy of law. The law lacks the legitimacy obtained by being enacted by democratic representative institutions.[24]
The EU’s democratic deficit came into the limelight with a fall in public support for the idea of deeper and broader integration. Neither the Communities nor the European Union have succeeded in creating a supranational society, and EU citizens have yet to form a single polity. Also, responsibility for the decisions made is borne solely by members of the Council of the EU. These are heads of state and government officially accountable to national parliaments and electorates. Even this fragmentary responsibility is limited, because each minister charged in his home country with taking wrong actions may put this down to the requirement of acting in compliance with EU decisions. And the responsibility problem also applies to the Commission, not because of the role it plays, but due to commissioners’ independence in the discharge of their functions, pursuant to Article 213(5) of the Treaty establishing the European Community (TEC).
External and Internal Democratic Deficit
The democratic deficit in the European Union is of dual nature, external and internal.[25] The former concerns the previously mentioned relations between the Council of the European Union and the Commission on the one hand, and the European Parliament on the other. After the European Court of Justice ruled on direct application of the Community law and its supremacy over national law, the governments, in their capacity of member states’ executive organs, have been vested with legislative powers (through participation in Council proceedings).[26] Even though the TEC, with a view to vertical separation of powers between the Communities and the member states, did introduce a set of enumerative delegations (which obviously restrict the Communities’ room for manoeuvre), the Council nevertheless has at its disposal the powers provided for in Article 308 TEC (and this obviously holds for member state governments as well). The “necessary and proper” clause set out in the article makes it an instrument for gradual extension of the Commission’s legislative powers.[27] It determines that if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the TEC has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. As a matter of fact, the only obstacle is the requirement of Council unanimity. Both this arrangement and the limitation of the European Parliament’s role to merely passing opinions are signs of democratic deficit within the Union’s structures. The legislative initiative in the Communities lies with the Commission, whose members enjoy the status of functionaries independent of the member states.[28] The Communities’ main legislative body is the Council of the European Union, comprising member states’ representatives at the ministerial level. Council decisions are as a rule taken by majority or qualified majority voting, with the unanimity requirement curtailed by successive treaties.[29] The European Parliament, comprising representatives of member states’ peoples (pursuant to Article 189 TEC), does not have a final say in the Community acquis, even though its weight in the Community legislative process has been on the rise, especially within the co-decision procedure. While emphasizing that the unanimity principle should be retained when deciding on enlargement, the European MPs argue that for some time the new member states should have no right to block successive accessions.[30]
Article 249 TEC reads that in order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. Under Article 252 TEC the Parliament may participate in the legislative process but is not empowered to make decisions. This cooperation has a number of stages: a proposal issued by the Commission; an opinion passed by the Parliament; negotiations at Council committees; negotiations at the Permanent Representatives Committee (known by its French acronym Coreper); announcement of a joint position of the Council of the EU; approval of that position by the Parliament; final adoption of the common position by the Council. Where the Parliament proposes amendments to or rejects the proposal, it may be re-examined by the Commission.
Under Article 251 TEC, the European Parliament is vested with co-decision powers: a proposed act must be approved by the Council and the Parliament alike. Pursuant to Article 252 TEC, this procedure may get complicated. Since the Parliament and the Council have to act unanimously, they may appoint a Conciliation Committee to help reach consensus on contentious issues, which obviously prolongs the entire process. Also the Parliament may reject the proposal by a majority. The body does not dominate the legislative process, but is capable of blocking decision-making.
These procedures show that there is no main organ in the process of adopting directives. Various interconnected institutions take part therein, with the main role played by the Commission and Coreper (where differences in national interests are negotiated upon and settled). Naturally, there are also many other committees, task forces, advisory groups, etc. This organisational complexity has given rise to the notorious concept of comitology. Under the circumstances, the number of votes assigned to a given member state becomes less important than the opportunity to exert informal influence on the persons taking part in co-decision processes.[31]
The directive-adoption process demonstrates that the final say in the Community’s legislative process rests with the Commission and the Council—not the Parliament. This is reflected in the pattern of responsibility. The TEC stresses the need for balancing the interests, but not for balancing the duties. Even though all three organs of the Communities may take part in the legislative process, the European Parliament is vested with only co-decision and opinion-making functions. Which body is authorized to pass a particular act and which procedures and principles are to be followed is determined each time by the relevant treaty provisions.
The Amsterdam reforms changed the European Parliament’s legislative tasks, with its approval now required under 19 articles of the TEC, when the procedure defined in Article 251 TEC is followed.[32] Only in two cases procedures under Article 252 are applied.[33] Under 14 articles of the TEC there is a requirement to hear the Parliament’s opinion.[34] In as many as 15 decision-making regulations contained in the TEC no European Parliament co-participation is required.[35] Such co-participation is provided for in the event of a possible application of general clauses under Article 94 and Article 308 TEC. The Parliament may contribute to the Community legislative process as part of consultations under Article 43(2) and other similar articles. While constituting a major factor of institutional balance, this prerogative only to limited degree reflects at the Community level the overarching democratic principle that states that society should participate in the exercise of power through representative assemblies.[36] As observed by the advocate-general of the European Court of Justice, in a situation where the treaties confer only limited powers on societies, no attempt to restrict these powers further must be accepted, and an act adopted without the European Parliament’s participation must be regarded as null and void.[37] Thus the legislative initiative on Community acquis is still vested in member state representatives in the Council of the EU (who are members of national governments), and not members of the European Parliament (MEPs) elected by EU citizens.