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Does the European Union have an Institutional Problem with Democratic Deficiency University of Kent 1/15/2016 James Peters Word count: 4,700

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Does the European Union have an Institutional Problem with

Democratic Deficiency

University of Kent

1/15/2016

James Peters

Word count: 4,700

Peters 1

Contents Introduction .............................................................................................................................................. 2

Democratic Deficiency .............................................................................................................................. 3

Institutions ................................................................................................................................................ 4

European Parliament ............................................................................................................................ 4

Council of the European Union ............................................................................................................. 6

The Commission .................................................................................................................................... 7

The European Council ........................................................................................................................... 9

The European Court of Justice ............................................................................................................ 11

Is there a solid case to claim that the European Union is plagued by democratic deficiency? .............. 12

Peters 2

Introduction From its inception, the European integration project has been an effort that has thus far

been successful at promoting inter-European economic and political integration as a means to

douse the fires of nationalism and bitter inter-state rivalry that fed fuel to the first two world

wars. The “founding fathers” of the European Union, Robert Schuman and Jean Monnet,1 had

envisioned a project that would united Europeans and help them find a new age of prosperity that

would be free of wars on the magnitude that had rocked lives of both men. A European project

would be a way to do much of what NATO’s first Secretary General had said, a way to “keep the

Russians out, the Americans in, and the Germans down,”2 and assure French about their security

dilemma concerns of another European total war.

The project took off as a purely economic endeavor. The original European Coal and

Steel Community placed the hard power resources needed to fuel a third German-Franco war in

three generations and placed them under the control of a supranational body.3 While this was not

a nation-state like what federalists such as Robert Schuman had envisioned for a European

project, that first seed of the ECSC has steadily grown through phases of both widening and

deepening European integration. Due to a mix of excitement over the growth experienced by the

original six ECSC members and anxiety over mounting Soviet-American tensions, European

political leaders pushed for more economic integration which fed into widening as more

countries sought to join the European club and more deepening with early treaty reforms like the

Treaty of Rome.4

From the 1950s to the present day, the once European Coal and Steel community, now

European Union, has evolved from having 6 members to 28. Its competencies have spread from

the supranational control over Coal and Steel manufacturing in Europe to controlling the world’s

largest trading bloc and providing a wide range of services for all European citizens. This growth

has gone through heavy periods of questioning and challenges such as the period of

Eurosclerosis during the 80s,5 and the failure to pass a constitutional treaty in 2005.

6 And along

with questioning how far integration will go, the European project has also been plagued by the

question of the democratic deficit.

This paper will seek to first define the concept of “democratic deficiency”. I will then

look at the European Union from an institutional perspective and evaluate each of the

institutions, based off of what is written into the treaties as to how each institution is created then

how it engages in policy making. I will evaluate these criteria against the definition of

1 (Baldwin and Wyplozy, 2012, p. 12)

2 ( NATO - Opinion: After-Dinner Speech by Admiral Giampaolo Di Paola, Chairman of the Military Committee,

Honouring SHAPE Officers’ Association’s 50th Annual Symposium in Mons, 16-Oct.-2010) 3 (Baldwin and Wyplosz, 2012, p. 11)

4 (Baldwin and Wyplosz, 2012, p. 16)

5 (Bentolila and Bertola 1990)

6 ( EUROPEAN UNION: The French & Dutch Referendums - Council on Foreign Relations)

Peters 3

democratic deficit to measure the actual depth of the problem. I expect to show that the EU

doesn’t suffer from a problem of a democratic deficit more so than a normal nation state, but

rather because of the complexity of the union and the seeming lack of transparency surrounding

Union’s policy making process, the EU’s problem with the democratic deficit is actually a

problem of policy makers trying to shroud the EU with a cloak of suspicion that then hides the

fact that Unpopular EU policies that do not sit well with the Member State’s home electorates are

actually policies supported by that very member states home government.

Democratic Deficiency Eur-lex claims that the so-called European democratic deficient is the terminology used

by academics and ordinary European citizens alike to demonstrate dissatisfaction with the

seeming lack of transparency in policy making and the lacking mechanism for ordinary

European citizens to reject or dissolve a European ‘government’ that they are dissatisfied with.7

Others suggest that the democratic deficit lies not in the “formal structure of the Union

[legislative process]…but in its informal bypassing,”8 meaning that the back room dealings that

smooth out legislative bumps (or the politicking of legislation) is done behind closed doors and

that makes the legislative process a simple formality instead of a true democratic proceeding.

Some like Baldwin and Wyplosz put the problem in the terms of ‘democratic legitimacy,’ and

say that the EU would be a more legitimate system if all individuals would be happy with the

allocation of others’ voting power and they had a means for rebutting legislation they didn’t

like.9 Other definitions of European democratic deficit go on to call the EU a ‘superstate’ that

erodes national sovereignty or say that the European Union or that it is a runaway supranational

technocratic state.10

For the purpose of this paper, we will take the most straightforward definition implied by

the word. By saying the EU has a ‘democratic deficit,’ that would seem to imply that democracy

is missing. We will also take the definition one step further to include the competencies of the

institution in question then determine if an institution holds power that extends beyond normal

parameters for a state equivalent institution.

Therewith we will test each of the institutions to see if there is indeed a democratic

proceeding by which representatives are first elected. Then, if it is shown that a representative is

elected, then we will evaluate if the electorate has the option to electorally punish a ‘bad’

politician by voting him or her from office during the next election cycle. Moreover, we will

examine the competencies of the stipulated institution and determine if they are consistent with

the subsidiarity principle which would imply that the EU has only taken on competencies that are

7 ( Democratic Deficit Glossary of Summaries - EUR-Lex)

8 (Schütze, 2012, p. 42)

9 (Baldwin and Wyplosz, 2012, p. 111)

10 (Moravcsik, 2008, p. 332-333)

Peters 4

appropriate to a European wide level of responsibility.11

And finally, we will examine the treaty

language to determine that if there is a failing on the part of the treaty to provide a democratic

foundation if it is a failing of the EU or if reform is needed at the member state level.

Each institution will be examined by the criterion of the following four prong test:

1. Is the institution directly democratically elected?

2. Are there political or legal ramifications if a politician or institution

oversteps the boundaries as stipulated by the treaties?

3. Do the competencies outlined for the institution fall within the general

guidelines of the subsidiary principle?

4. If the institution is not directly elected then are there other political

safeguards and mechanisms that the electorate can use to ensure

democratic accountability?

Institutions

European Parliament

We will start with the European Parliament. As an institution, it was first legally created

as the Common Assembly of the European Coal and Steel community in 1952, then was

rechristened as the European Parliament ten years later. The European Parliament held its first

Direct Elections in 1979.12

Is the institution directly democratically elected?

The political appointment of the European Parliament is described in article 14 (3) TEU as an

election that will occur with universal suffrage and via secret ballot. Article 14 (2) describes

that the Parliament shall be composed of representatives of the Union’s citizens. These two

provisions thus qualify the European Parliament as an indisputably directly democratically

elected European institution.

11

(Schütze, 2012, p. 44 12

( EUROPA - European Parliament - the EU Institutions Explained)

Peters 5

Are there political or legal ramifications if a politician or institution oversteps the boundaries

as stipulated by the treaties?

Yes, because the article is re-elected every 5 years (Art. 14(3) TEU) the MEPs (Members of the

European Parliament) are held politically accountable. In the event that the local constituency

becomes dissatisfied with either the party or the MEP in office, the constituency has the

opportunity every five years to send a new official to represent them.

Do the competencies outlined for the institution fall within the general guidelines of the

subsidiary principle?

Article 14(1) TEU explains the basic competencies of the European Parliament. It is a co-

legislator with the Council of Ministers and it is responsible for electing the President of the

Commission. These competencies fall within the realm of the subsidiarity principal when the

European Parliament is compared with the legislative and constitutional responsibilities of most

of the Member States lower house of parliament.

Like the British House of Commons or the German Bundestag, the EP is responsible for electing

the President of the Commission. And since the President of the Commission, like the Prime

Minister in a parliamentarian democracy, is responsible for initiating legislation (along side other

commissioners who can also propose legislation), the subsidiarity principle is respected because

the Parliament is responsible for electing the head Legislator who is responsible for initiating the

legislative process. It does not have the constitutional powers to change Member State

governments or Regional governments, and it plays a role in affirming the entire commission Art

17 (7) TFEU and has the power to reject formation of the primary legislating body before it takes

office if the Parliament feels for any reason that any member of the proposed commission is a

bad fit for the job.

And in its role as a legislator, the European Parliament has direct voting power on legislation that

effects daily citizen life and regulation under the process of the ordinary legislative and it also

holds power of the purse, like most lower houses of Parliament in the Member State

governments.13

If the institution is not directly elected then are there other political safeguards and

mechanisms that the electorate can use to ensure democratic accountability?

As shown by the first prong of the test, the European Parliament is directly elected and is held

directly democratically accountable.

13

(Shütze, 2012, p. 14-5)

Peters 6

Council of the European Union

While the European Parliament is often seen as the direct representation of the European

constituency to the European Union, the Council of the European Union can be seen as the

Member States direct representation to the European Union.14

The first precursor body to the

Council of Ministers was created in 1958 and was called the Council of the European Economic

Community. It serves its main purpose today as the co-legislator with the European Parliament,

but it also partners with the Commission and is the home institution to the newly created office

of the High Representative of the European Union.15

Is the institution directly democratically elected?

The Council of the European Union is not directly elected by a European electorate. Article

16 (2) TEU calls for each member state to send its appropriate government minister to attend

meetings of the Council relevant to the policy issue at hand (ie. the Agricultural minister in

legislation dealing with the Common Agricultural Policy, or Economic Ministers when

considering new economic reforms or regulations). In all, there are ten various configurations

of the Council of Ministers depending on the policy issue at hand.16

Are there political or legal ramifications if a politician or institution oversteps the boundaries

as stipulated by the treaties?

Yes, in two separate ways. The first is in the fact that the democratically elected European

Parliament has to approve legislation voted on by the council in the majority of cases. While

there are a select few cases where the Parliament does not have equal legislative power to the

Commission and the Council of Ministers, the Council of ministers is also politically responsible

to the political repercussions of both its home government and the home government of the

member state is in turn held democratically accountable in its policy actions by its home

electorate. An electorate that is comprised of citizens of the European Union.

Do the competencies outlined for the institution fall within the general guidelines of the

subsidiary principle?

As an upper legislative house, the Council of Ministers holds a number of competencies similar

to those shared by the Member States home electoral systems. It is required by Article 16 (8)

14

(Schütze, 2012, p.19) 15

( EUROPA - Council of the EU - the EU Institutions Explained) 16

ibid

Peters 7

TEU to meet and deliberate in public. It is bound by a voting system that requires a double

majority. 55% of the Member States representatives who in total also represent 65% of the

population of the total union must vote to pass legislation Article 16 (4) TEU.

This kind of double majority voting does not exist in every member state and can therefore be

viewed to be as a more restrained form of authoritative democracy than those practiced by

member states like the UK where the parliament needs 51% of the vote to pass legislation.

Instead, the double majority procedure is a much more deliberative democratic approach because

it requires a minimum of 65% of the Unions population and over half of the Member States to

agree to new legislation.

Additionally all legislation passed by the Council is subject to judicial scrutiny by the European

Court of Justice. So like in home Member States, if the Council were to overstep one of its

mandates, such as the subsidiary principle laid down by both the treaties Art 5 (3) TEU and the

ECJ in Parliament v. Council, Case C-417/93, [1995] ECR I-643, the legislative body cannot

supersede its boundaries and competencies for European law making and impose its will into the

Jurisdiction of Member State governments or regional governments unless its acting on the

grounds of a sole competency of the European Union.

If the institution is not directly elected then are there other political safeguards and

mechanisms that the electorate can use to ensure democratic accountability?

The Council of Ministers is not held directly politically accountable by a European Electorate. It

is the institution that is meant to represent the policies and will of the Member State

governments. However, with this in mind, the lack of direct European accountability is a non-

issue as the Council of Ministers is an institution representative of the Member States. Thus, if

Europeans, as citizens of the EU, feel there needs to be greater transparency and democratic

accountability regarding the Council of Ministers, it is the prerogative and responsibility of the

constituents within a given member state to reform their electoral process to hold their cabinet

more accountable to the will of the people. This is already normally done by the majority of

populations within Member States when they elect a governing party who then forms a

government which includes a cabinet of Ministers.

Thus, they directly elect their representative to the Council of the European Union and these

ministers are then accountable to the will of their elected people because the people has the

power to punish a government whose policies they disagree with that are then presented as

legislative material at the EU level.

The Commission

Peters 8

The commission can be viewed as the most supranational body of the European Union. It

evolved from the technocrats that governed the original European Coal and Steel community.17

It

is the most politically independent branch of the European Union’s government. It primarily

looks after European Union wide interests and together with the ECJ (like the executive powers

of the French President or German Chancellor) is responsible for upholding EU law and making

sure that Member States enact directives and new laws within a timely manner.18

Is the institution directly democratically elected?

The Commission is not democratically elected by the European electorate. It is comprised of

one national from each member state Article 17 (4) TEU. Its president shall be directly

elected by the European Parliament and after he or she proposes a so-called college of

commissioners, that college is then confirmed by the European parliament.

Are there political or legal ramifications if a politician or institution oversteps the boundaries

as stipulated by the treaties?

Yes, as is outlined by article 17 (8) TEU and Article 234 TFEU the parliament shall have the

power to vote on a motion of censure that would require the Commission to retire immediately.

Just as a national parliament can call a vote of no confidence in the Prime Minister of a Member

State or a Parliament can vote to impeach a president, the European Parliament can also decide

that if the Commission has overstepped its legal bounds, then it can pass a vote of censure on the

standing commission.

Do the competencies outlined for the institution fall within the general guidelines of the

subsidiary principle?

Yes, the treaties are very specific on the powers of the Commission. With the exception of the

competencies held by the High Representative of the Union, the Commision is responsible for

representing the interests of the Union abroad Article 17 (1) TEU. This would include areas

regarding the common market and the four fundamental European freedoms.

Additionally as the main legislator, like a prime minister elected by a national parliament, the

president’s commission has almost exclusive rights to propose new legislation Art 17 (2) TEU.

As the main executive supranational branch of the EU, the commission is also tasked with

ensuring the application of the treaties Article 106 (3) TFEU. And it is also responsible for

17

(Schütze, 2012, p. 26) 18

( EUROPA - European Commission - the EU Institutions Explained)

Peters 9

overseeing the application of European law and it has the legal competencies to compel Member

States and other institutions to follow EU law Article 258 TFEU.

If the institution is not directly elected then are there other political safeguards and

mechanisms that the electorate can use to ensure democratic accountability?

The College of Commissioners is an institution that is designed to maintain the most political

independence from the European electorate. However, that does not separate it from political

accountability. The Commission is held accountable in two ways: one democratic, and the other

legal. Because the European Parliament has the ultimate power of censure over the College of

Commissioners, it holds the legal competence to dissolve the college if it feels that the College

of Commissioners has become either abusive of its power or has become corrupt. And because

the Parliament is a body that faces direct elections every five years, it is under pressure by its

direct European electorate to hold the college of commissioners to the same standard that a

Prime Minister is held. If the Prime Minister of a Member State becomes bogged down in

scandal, is seen as weak or seen as corrupt, the national parliament can always call a vote of no

confidence. The European parliament too can subject the Commission to a vote of censure.

And like the executive of a member state, the College of Commissioners too is also not above the

law. And should the Commission break the law, the European Court of Justice can negate a law

passed by the commission that violates the competencies laid out by the treaties.

The European Council

While the Heads of the original six member states of the European Coal and Steel

Community must have met together regularly since before the European Coal and Steel

community was officially ratified into law, the pre-cursor to the European Council first began to

meet informally in 1974, then formally in the 90s and finally gained institutional status with the

ratification of the Lisbon Treaty in 2009.19

While the Commission most closely represents the

Head of Government for the European Union, the European Council most closely represents the

Head of State.20

Much like the Queen of England, the Prime Minister of France or the President

of Germany, the European Council is a body that is primarily a policy setter and holds no real

powers within the realm of the European law making process Article 15 (1) TEU.

19

( EUROPA - European Council - the EU Institutions Explained) 20

(Schütze European Constitutional Law, 2012, p. 103)

Peters 10

Is the institution directly democratically elected?

Like the Council of Ministers, the European Council is a representation of the Member States

to the European Union. And like the Council of ministers it is not directly elected by a

‘European’ electorate. The European Council is comprised of the Heads of State and

Government of the Member States Article 15 (2) TEU.

Are there political or legal ramifications if a politician or institution oversteps the boundaries

as stipulated by the treaties?

Yes, in every Member State where there is a political process in place either via constitutional

law or secondary law that allows for a recall process to happen, a constituency in a member state

can always withdrawal their representative to the European Council if they chose. Otherwise, if

they are unsatisfied with their government and its proposals before the European Council, it

always has the opportunity to elect a new Head of Government in the next national election.

While it is almost guaranteed that no national party is going to run on the platform of being a

better representative for its people at the European Council when there are much perceived issues

at the national level (the economy, the environment, etc), it is not the inherent fault of the

European Union, or a flaw in the treaties, that diminish the awareness that in many member

states, the European Council is also a directly elected representative body for the European

electorate.

Do the competencies outlined for the institution fall within the general guidelines of the

subsidiary principle?

Yes, because like a Head of State like the King of Belgium or the President of Germany, the

European Council is a policy and agenda setter and does not have direct power within the

European Union context. Of course the minister in the council of ministers that corresponds to

the Head of State of the Members State in question will put forward the agenda of that Member

State, the various Prime Ministers and Presidents of Europe, thought they are the head of

government in their home regime, they don’t have direct legislative or executive powers at the

European level Article 15 (1).

However, the European Council does fulfil one very important constitutional role in the EU, it

has the power to determine if a candidate state can begin the accession process Article 49 TEU

or it can also lay out the guidelines for a member state that has opted to leave the Union Article

50 (2) TEU.

If the institution is not directly elected then are there other political safeguards and

mechanisms that the electorate can use to ensure democratic accountability?

Peters 11

Yes, as was stated above, the European Council is comprised generally of representatives who

are elected directly by their home constituents. If during the election process they chose not to

run on a platform as a representative to the European Council, that does not change the fact that

if they win the election, that candidate in question will represent his or her entire member state in

the capacity of Member of the European Council.

The European Court of Justice

The European Court of Justice is the impartial judge that is needed to ensure that the

democratic process is followed. It exists primarily to interpret European Law when it is brought

into question by the Member States or institutions and ensure that law is evenly applied.21

The

court was first established in 1952, and it has developed a very rich jurisprudence since its

inception. Because it’s responsible for interpreting European law, it has often been accused of

being an activist institution that has pushed integration forward whether the Member States

wanted it to or not.22

Is the institution directly democratically elected?

Like the impartial judicial branches of the member states, the ECJ is not a directly elected

body. One justice is appointed from each member state to serve a term for 6 years Article 19

(2). The judges are to be of impeccable moral character and should meet the criteria outlined

by Articles 235 and 254 TFEU.

Are there political or legal ramifications if a politician or institution oversteps the boundaries

as stipulated by the treaties?

Yes, in the event that a Judge is found to be unsatisfactory, he or she may not be reappointed

after his or her six year term.

Do the competencies outlined for the institution fall within the general guidelines of the

subsidiary principle?

Yes, the court is responsible for interpreting and evenly applying Union law Article 19 (3). This

is the basic judicial function of every constitutional court. It is the determiner of the Subsidiary

Principle and if the laws passed by the Commission, Council and Parliament do not violate the

21

(Schütze, 2012, p. 32) 22

( EUROPA - Court of Justice (CJEU) - the EU Institutions Explained)

Peters 12

subsidiary principle, are true to the treaties and respect the four fundamental European

Freedoms.

If the institution is not directly elected then are there other political safeguards and

mechanisms that the electorate can use to ensure democratic accountability?

Yes if the Court has any members who are found to be incompetent in their job, then they will

not be reappointed at the end of their six year term. Furthermore, as law an jurisprudence move

case to case, each new court has the opportunity and power to change the jurisprudence set in

place by a prior ruling found on bad reasoning or if something in the treaties has changed that

will change fundamental European constitutional law.

Is there a solid case to claim that the European Union is plagued by democratic

deficiency?

No, there is not a strong case to claim that the European Union is overtly less democratic and

overly technocratic from a legal or institutional perspective. As I endeavored to show by

applying a four prong legal test with a defined definition of democratic deficiency being either a

lack of democratic accountability in the election process or in the event that the populace has

become unhappy with the regime in place.

As I showed, two of the institutions are directly elected, the European Parliament and the

European Council (given that the member states constitution allows for the direct election of the

Head of State or it is known who will become prime minister in the event of a party winning in

an election). I have shown that the Council of Ministers is composed of representatives that are

officials representing the governments directly elected by the European people. And I have

shown that the European Union’s most supranational Executive/Legislative institution, the

Commission is also held democratically accountable upon its appointment (via a confirmation

vote cast by the European Parliament which is directly elected by the European people). And, it

is held accountable while in office by the possibility of a vote of Censure by the European

peoples most open and direct representative, the European Parliament, should it overstep its

boundaries.

Because of its massive size and complicated legislative proceedings, it would be very difficult

for Brussels to push legislation through compared to how easy it would be for a unitary

parliamentarian system like that of the UK.23

If anything, it can be said that the European Union

has a problem of being too complicated and because of its 413 constitutional articles (compared

23

(Moravcsik, 2008, 334)

Peters 13

to 34 for the United States),24

and that is what gives it the perception of being an impenetrable

enigmatic bureaucratic regime that member state governments can blame all their woes on.

24

(Schütze Consitutional Law, 2012, p. 3)

Peters 14

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Peters 15

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