Introduction

In order to examine the democratic virtues of the EU, there must be a base line or normative

premise against which the entity is assessed.1 While Article 10(1) TEU states that the EU is

designed to function on the principles of representative democracy. The meaning of this is clear but

the perspective on implementation varies across the multilevel system.2 It is submitted that the EU

is unique3 to the world in that it forms an intergovernmental and supranational hybrid.4 Therefore

the existing democratic polities and philosophies should serve as a reference, not the rule, in

exploring the relationship between the citizen and the law-making power.5

These powers stem from the ‘competencies’ of the EU as set out in the treaties6 and form the

legal basis for exercising supranational control through intergovernmental co-operation.7 The use of

these, now more than ever, has become increasingly central to the survival of the Union if we are to

harmonise the economies and their regional competitiveness.8

Every democratic polity involves three components: the horizontal association of free and

equal legal persons, a bureaucratic organisation for collective action, and civic solidarity as a

medium of political integration.9 The EU lacks much of the qualities of a state, so citizens of it do

not avail of typical rights associated with citizenry.10 Attaining the kind of polity one normally

associates with democracy is increasingly difficult in a transnational sense when the EU is the

1 Majone G, “Europe’s ‘Democratic Deficit’: The Question of Standards” [1998] 4 ELJ 1 5 p 142 Bredt S, “Prospects and Limits of Democratic Governance in the EU” [2011] 17 ELJ 1 35 p 363 Case 26/62 Van Gend En Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1 p. 328.4 Herein referred to as supragovernmental5 Jano D, “Understanding the “EU democratic deficit”. A two dimension concept on a three level-of-analysis.” (2008) 14(1) Politikon: The IAPSS Journal of Political Science 616 Article 1 TEU and Article 5 TEU7 As held in the seminal case of Case 26/62 Van Gend En Loos v. Nederlandse Administratie der Belastingen [1963] ECR 18 Habermass J, “The crisis of the European Union in the light of a constitutionalization of international law” [2012] ELJ 3359 ibid p 33910ibid p342

‘jerry-rigging’ together of multiple constitutional democracies with individual national identities.

The most fundamental question becomes whether the standards of democratic legitimacy are

possible where the national is subordinated to the supra-governmental?11

What is the Democratic Deficit?

Hix and follesdal quite aptly point out that there is ‘no single meaning’, but identify 5

themes intrinsic to the debate.12 These are:

1. The increasing relinquishment of executive power and the corresponding decrease in national

parliamentary power.

2. The Weakness of the EP

3. The lack of real European elections

4. The geographical and metaphorical distance from the citizen.

5. The nature of the entity in allowing it to adopt policies which are not supported by the popular

majority in many member states13

These overlap with those identified with Hindess, 14 and are further compounded by the lack of

information, transparency and accountability which then undermines the lack of EU demos.15 The

four types of argument that are advanced are elucidated by Majone as:

1. Domestic and EU Institutional comparison

11 ibid12 Follesdal & Hix, ‘Why there is a Democratic Deficit in the EU : A response to Majone and Moravcsik’ (2006) 44(3) JCMS 533 p 213 ibid p 2-614 Hindess B, ‘Deficit by Design’ (2002) 61(1) Australian Journal of Public Administration 30. “the combination of two phenomena: (i) the transfer of power from the Member States to the EC; (ii) the exercise of these powers at Community level by institutions other than the European Parliament, even though, before the transfer, the national parliaments held the power to pass laws in the areas concerned.”15 Follesdal & Hix n12

2. ‘Pure majoritarian’ comparison placing Parliament at the source of democracy

3. Democratic legitimacy is derived from member states, and weakened by QMV

4. EU policy making is more orientated towards neo-liberalsim to the detriment of social welfare.16

Institutions

Jean Monnet’s vision for European integration necessitated the relinquishing of some

sovereignty in order to achieve a community objective.17 The Commission and the ECJ are the

defining features of the EU, giving it a supranational aspect that exceeded the limitations of

intergovernmentalism.18 Thus the architecture of the EU diverges from the traditional democratic

separation of powers. Law making power spread amongst the 3 main institutions and this function is

horizontally accountable internally and to member state governments.19

The Commission

The Commission possesses largely exclusive right to initiate legislation and this arguably

ensures impartial drafting in the best interests of the community.20 The sole right of initiative is

likened to the executive functions within a democratic state,21 and Decker suggests that the

President of the Commission ought to be elected by the citizenry.22 This presents a seemingly

undemocratic source of law, but the reality is that much of the initiative originates from other 16 Majone G, n117 Featherstone K, ‘Jean Monnet and the Democratic Deficit in the European Union’ (1994) 32 (2) Journal of Common Market Studies 1 18 ibid p4 19 Majone G, n120 Article 17 (2) TEU, although it does have legislative power regarding public undertakings and conditions of residence in member states by EU Citizens, see Chalmers D, Davies G & Monti G, European Union Law (2nd Ed, Cambridge University Press, 2010) p 5921Hartley TC, The Foundations of European Union Law (7th Ed, Oxford University Press, 2010) p 2722 Decker F, ‘Governance Beyond the Nation State. Reflections on the Democratic Deficit of the European Union’ (2002) 12 Journal or European Public Policy 89

institutions23 or member states.24 Civil Society and corporate interests also lobby the Commission to

influence the law making process.25

The interaction with civil society is seen as an extension of citizen participation in Brussels

politics, and the influence of corporations even for the purpose of ‘exchange theory’ 26 has proven

useful to facilitate growth. Skogstad suggests that these policy networks provide procedural

legitimacy for non-majoritarian decisions by facilitating consultation with concerned actors or

groups.27 But this is legitimately undermined by Tsakatika who suggests that there is a real risk that

such close proximity to civil society may lead to its subservience to government.28

There are also issues with the development of a Neo-corporatist polity. This may occur due

to the fragmentation of national interests due to the multilayer system, weakening their relative

position in contrast to the consolidated corporate lobby interests.29

Although the Commission possesses limited legislative powers, it is delegated quasi-

legislative powers over a broad range of issues by the Council.30 This is subject to ‘Comitology’, a

23 E.g. Article 241 TFEU permits the Council of ministers to submit legislative proposals24 See House of Lords European Union Committee, ‘Initiation of EU Legislation, Report with Evidence’ 22nd Report of Session 2007-0825 Butler IDJ, ‘Non-governmental Organisation Participation in the EU Law-making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council’ (2008) 14(5) ELJ 558 and Bouwen P, ‘Corporate Lobbying in the European Union: Towards a Theory of Access’ (2001) European University Institute Working Paper 5/2007, <Corporate lobbying in the European Union: towards a theory of access> accessed 01 December 201226 See Bouwen P, ‘Corporate Lobbying in the European Union: Towards a Theory of Access’ (2001) European University Institute Working Paper 5/2007, <Corporate lobbying in the European Union: towards a theory of access> accessed 01 December 2012 ,access goods in exchange for access. This is useful for providing expert advice from the industry so that policy makers can stay in touch with the markets.27 Skogstad G,‘Legitimacy and/or Policy Effectiveness?: Network Governance and GMO Regulation in the European Union’ (2003) 10 Journal of European Public Policy 321 at 32228 Tsakatika M, ‘Governance vs. Politics: the European Unions Constitutive ‘Democratic Deficit’’ (2007) 14 Journal of European Public Policy 86729 Weiler J, Haltern H, Mayer F, ‘European Democracy and its Critique: Five Uneasy Pieces.’ (1995) European University Institute Florence Working Paper 11/1995, <http://cadmus.eui.eu/bitstream/handle/1814/1386/95_11.pdf?sequence=1> accessed 14 November 201230 D Chalmers n19 p 59 suggests this accounts for 20% of EU legislation. Note Article 290(1) TFEU prevents the delegation of essential elements of policy.

procedure where representatives from national governments oversee and may even refer the

Commissions draft to the council.31

This has raised issues with regard to accountability and legitimacy in the democratic

process, in particular due to the position of legislator on areas of exclusive community

competencies.32 Majone defends the delegation of powers on technocratic grounds since expert

decision making leads to greater efficiency and productivity.33 In addition Chalmers points out that

not only does delegation have a pressure relieving effect it also avoids the inherent difficulties in

attaining long term objectives due to the ever changing political hierarchy of the EU and member

states.34 Moravcsik further supports this by adding that delegation adds a degree of impartiality

which in turn legitimises the drafting.35 Procedurally, delegation may provide scope for the recipient

to exceed their terms of reference thereby undermining legitimacy. But efficiency wise it may be

pareto efficient and derive legitimacy from the result(output).36 Habermass argues that the

Commission, like the familiar federal government, should seek input legitimacy through equal

dependency and accountability via the EP and Council.37

The ‘Comitology’ procedure has been criticised for possessing some democratic oversight

characteristics38 but actually behaving more like a consultative process with expert panels.39

Furthermore Eriksen & Fossum criticise the lack of transparency in committee decision weakening

their standing as ‘strong publics’.40

31 ibid p 118-11932 Cini M, ‘The Commission: An Unelected legislator?’ (2006) 8(4) Journal of Legislative Studies 1433 Majone G n134 Chalmers D n19 p 6035 Moravcsik A, ‘In Defence of the Democratic Deficit: Reassessing Legitimacy in the European Union (2002) 40(4) JCMS 60336 Tallberg J,‘Delegation to Supranational Institutions: Why, How, and with What Consequences?’ (2002) 25 West European Politics 2337 Habermass J n8 at 34538 Joerjes C, ‘Deliberative Supranaionalism: A Defence (2001) 5(8) EloP 139 Chalmers D n19 p 124, Dehousse R ‘Comitology? Who Watches the Watchmen? (2003) 10 JEPP 79840 Eriksen E & Fossum J, ‘Democracy Through Strong Public in the European Union’ (2002) 40 Journal of Common Market Studies 401 at 411, cf the Authors view on the Parliament would be considered strong publics.

Council of Ministers

The key roles of the Council are, enforcement of EU law against other institutions41 , request

the commission to research or submit legislative proposals42and have the final decision on whether

to adopt legislation in many areas.43 Its composition varies depending on the policy area44 and

decisions are normally made under QMV45 procedure. Most of the procedural workings of the

Council are undertaken by CORPER46 in advance of meetings.47 In a similar vein to the operation of

‘Comitology’, Chalmers criticises the lack of transparency of CORPER. This again ties into the

overarching theme which expresses concern over the excessive technocratic bureaucracy.48

The Lisbon treaty officially recognised The European Council as an institution of the EU.49

This has been met with criticism, Habermass describes the resolutions of the EC as lacking

legitimacy and having potentially ‘far reaching implications’. 50

The European Parliament

41 Article 225 TFEU42 Article 241 TFEU43 This leads to the perception that it is the apex institution of the EU, Chalmers D, n19 p 6844 Article 16(2) TFEU, eg finance will require all finance ministers etc. There are currently 10 configurations, General Affairs, Foreign Affairs, Economic and Financial Affairs, Justice and home affairs (JHA), Transport, Telecommunications and Energy , Agriculture and Fisheries , Environment, Education, youth, culture and sport, Employment, Social Policy, Health and Consumer Affairs, Competitiveness (internal market, industry, research and space)45 Qualified Majority Voting. See Article 16 (3) and is the default voting method.46 Committee of Permanent Representatives47 I.e. Considering Commission proposals. Article 16(7), The Committee of Permanent Representatives set up in Article 240(1) TFEU. See also Case-25/94 Commission v Council (FAO Fisheries Agreement) [1996] ECR I-1469. Chalmers n19 at 75, COREPER is the apex of a network of national administrative bodies.48 Chalmers D, n19 p 7549 Article 13 TEU50 Habermass J, n8 p 345 He gives an example: “This has become apparent since the 2008 financial crisis in the momentous decisions of the Council to establish fiscal ‘rescue parachutes’ and new modes of coordination among the Member State governments.”

This institution is comprised of MEP’s directly elected51 from within their national

constituencies.52 The Parliament forms committees and sub-committees which oversee legislative

proposals and form own initiative reports.53 It plays a vital role in the law-making process with the

Council through its joint legislative functions54 and may request the commission to submit

proposals.55In addition it may take actions against other institutions in the ECJ56 or dismiss the

entire Commission.57 The ‘ordinary legislative procedure’58 now comprises most of the legislative

acts passed and provides a power of veto to the EP.

National parliaments have additional oversight through Article 12 TEU which ties into

ensuring compliance with the subsidiary principle.59 The purpose of this is to enhance legitimacy by

involving the national parliaments in the EU polity, and it appears to reflect the fact that the

principle has not been enforced in the past.60 Chalmers has criticised this as being unduly

constrained in terms of time and the number of objecting national parliaments required.61

CJEU62

51Article 223(1) TFEU requires common elections. Currently using proportional representation. 52 754 as of November 9th 2012. A president is elected from among these for a two and a half year term under Article 14(4) TEU in addition to 14 vice presidents they form the Bureau of Parliament.53 Rules 42, 45, and 48, Rules of Procedure of the European Parliament. 16th Ed, Oct 200854 Article 14(1) TEU55 Article 225 TFEU56 Article 263 and 265 TFEU57 Article 17(8) TEU, Article 234 TFEU58 Article 289 and 294 TFEU59 Article 760 Bredt S, n2 p 3861 Chalmers D, n19 p 128-13262 Court of Justice of the European Union

The ECJ63 is comprised of a single judge from each member state, and this has been

criticised since it does not accurately represent the demographics of the EU population.64 This

institution does not possess law making power per se, it can merely interpret the Treaties and make

binding decisions. But its power to interpret the treaties has been used to expand the scope of EU

law beyond what member states originally intended. This has resulted in the creation of doctrines

such as the sovereignty of EU law, Direct effect, and Supremacy.65

The Democratic Deficit

Weiler offers a majoritarian based criticism of the weakness of the EP in exercising

horizontal accountability.66 In addition he argues that EP elections are second order since they tend

to hinge more on the domestic party issues.67Moreover the domestic electoral policy of the voter is

at risk of being subsumed into the prevailing EU policy adopted by the EP.68

Habermass in contrast argues that the EU shares powers through the state and citizen via the

ordinary legislative procedure. The procedure entails the involvement of both the EP and Council in

passing laws. On a superficial level this could be viewed as a dual approval process by the demos in

both their capacity as EU citizens and national citizens.69 This concept is consistent with the ideal of

shared sovereignty, as the people have split it between the EU and national state. It is critically

important to remember that while this has some of the features of federalism, it is distinctly

63 European Court of Justice64 2 BvE 2/08 Gauweiler v Treaty of Lisbon, Judgement of 30 June 200965 Case 26/62Van Gend En Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1,Case 6/64 Flaminio Costa v E.N.E.L [1964] ECR 585 66 Weiler J, Haltern H, Mayer F, ‘European Democracy and its Critique: Five Uneasy Pieces.’ (1995) European University Institute Florence Working Paper 11/1995, <http://cadmus.eui.eu/bitstream/handle/1814/1386/95_11.pdf?sequence=1> accessed 14 November 201267 ibid p 9. Follesdal & Hix agree on this point, n12 p 27-2868 ibid p 1069 Habermass J n8 p 343

different in how nations maintain autonomy internally and collective control over the EU

externally.70 Thus he argues that the Council and EP ought to have completely equal standing.

Both Habermass and Meny71 suggest that the legitimacy and democracy deficit stem from

the imbalance between the constitutional and popular components of democracy. Habermass

indirectly proposes a solution to Meny’s problem of democratic overload72 by creating a pan

European civic solidarity which may encourage popular participation.

Majone suggests that the EU has become a regulatory polity for the purposes of economic

integration.73 Thus there is no democratic deficit, only a legitimacy deficit since the EU is not

entirely transparent or politically autonomous.74 He argues that the architecture of the EU is distinct

from a traditional state and it would be inappropriate to compare it to ordinary majoritarian

standards;75 the focus ought to be on output/technocratic legitimacy.76

In a similar approach Moravcsik considers the majority of community matters to fall outside

the ‘salience’ of the citizenry, and much of the functioning of the EU is of the type commonly

delegated by democratic states anyway.77 He terms this as ‘overdevelopment’78, and adds that the

oversight by the democratic institutions over the technocratic and expert institutions provides

sufficient legitimacy. This elite driven politics he argues promotes the impartial representation of

70 Habermass J n8 p 34471 Meny Y, ‘Dela Democatie en Europen: Old Concepts and New Challenges’ (2002) 40 Journal of COmmon Market Studies 60372 ibid p 973 Majone G, (1998) n1 and Majone G, ‘The Common Sense of European Integration’ (2006) 13 Journal of European Public Policy 607, referring to direct accountability.74 ibid p 2175 Majone G, (1998) n176 Majone G, (2006) n71 p620.77 Moravcsik A (1998), n34 p 60578 ibid

community interests and is arguably more effective than deliberative party politics.79 These balance

and checks also reduce the risk of an EU superstate.80

Crombez finds that despite the distance of the institution from the citizen, the policy output

of the ordinary legislative procedure81 appears to be largely congruent with the popular preference.82

This is supported by Zweifel’s comparative analysis with the USA and Switzerland demonstrating

relatively similar standards of democracy.83

Hix and Follesdal point out that the majority of EU policies are in fact redistributive or a

hybrid thereof.84 Snell adds that in recent years the competencies of the EU have expanded beyond

the scope of purely pareto-improving policies.85 Thus they argue that there is a distinct need for

more input legitimacy.86

Hix and Follesdal also challenge the ‘salience’ argument on the grounds that without debate,

there is nothing to draw a citizen’s attention to the issue.87 In light of the recent financial crisis one

would agree that economic issues and the ECB are now well within the salience of the citizenry.

Magnetee would seem to support this in his criticisms of Moravcsik’s approach as being

almost cursory. This is due the domestic effect of many social and economic policies which are in

reality important to citizens.88 Although if voter turnout in the EP elections is suggestive of interest,

79. Moravcsik A, ‘What can we learn from the Collapse of European Constitutional Project? A Response to Eight Critics’ (2006) University of Princeton, accessed at http:// www.princeton.edu/~amoravcs/library/PVS04.pdf on 30 November 201280 Moravcsik A (1998), n34 p 61481 Co-decision as it was called then82 Crombez C, ‘ The Democratic Deficit in the European Union: Much Ado About Nothing?’ 4 EUP 10183 Zweifel T, ‘Who is Without Sin Cast the First Stone: The EU’s Democratic Deficit in Comparison’ 9 JEPP 81284 Follesdal & Hix n12 p 13-15. E.g. private producers for domestic markets are losers from the removal of barriers to trade in a single market. Whereas some employees benefit from social policy such as equal rights for part time workers85 Snell J, ‘ “European Constitutional Settlement”, an Ever Closer Union and the Treaty of Lisbon: Democracy or Relevance?’ (2008) 5 ELRev 61986 Follesdal & Hix n12 p 533–562.87 ibid p 1988 Magnetee P, ‘Reaction for Notre Europe to Andrew Moravcsik’s article:What can we learn from the Collapse of the European Constitutional Project’ (2006) Jacques Delors Institute 2006, <http://www.notre-europe.eu/media/Moravcsik-ReponseMagnette-en.pdf> accessed 28 November 2012

it may cast doubt on this proposition.89 In addition, they add that regulators are susceptible to

lobbying and bureaucracy is not impervious to fault.90

There is much debate surrounding the lack of demos in the EU, i.e. affinity of the individual

to the community giving rise to the recognition of authority.91 Many reasons are advanced, for

example Snell cites the absence of common identity and language.92 This lack of common

community ideals results in the absence of pan European political parties in the EP. Chalmers points

out that this prevents the necessary cohesion to facilitate voter policy preference.93

Lobeira 94 tackles the question of whether ‘there [can] be a demos made of demoi’.95 He

argues that the problem with a federal telos stems from having demoi under the EU demos. He

argues in favour of a mixed common wealth polity that only requires a minimum demos to maintain

unity, thereby avoiding the issue of a person having conflicting demoi. 96

Tsakatika points out issues with the democratic legitimacy of the governance in the absence

of vertical accountability; unhappy citizens can not ‘throw the rascals out’.97However De Burca

suggests that this is due to the coalescence of law making powers in the main institutions.98

The German Constitutional Court voiced its opinion on this matter in Gauweiler v Treaty of

Lisbon99. The court rejected a challenge to the ratification of the Lisbon Treaty, finding that it did

89 Follesdal & Hix n1290 ibid 91 Snell J, n8392ibid93 Chalmers D, n19 p 8294 Lobeira P, ‘EU Citizenship and Political Identity: The Demos and Telos Problems’ (2012) 18(4) ELJ July 50495 ibid p 50896 This is preferable to less realistic expectation that the average citizen can balance the competing interests of EU and MS, Habermass J n8 p 34397 Tsakatika n27 p 871. See also Weiler J, ‘60 years since the first European Community – reflections on political messianism’ (2011) 22(2) EJIL 30398 Craig P & de Burca G, EU Law: Text, Cases and Materials (4th Ed, OUP 2008)99 2 BvE 2/08 Judgement of 30 June 2009

introduce some additional democratic features.100 However it did not correct the lack of vertical or

counter political accountability, and thus the EU could not be characterised as a representative

democracy.101 Chalmers largely agrees with this view and is critical of the lack of representative

ideals in the architecture of the institutions.102 In his view there is a distinct lack of information and

citizen interest exacerbated by the dominance of administrative practices.103

Conclusion

The democratic qualities of the EU leave much to be desired in terms of popular

participation. Representative participation is tenuous to rely on due to the inherent distrust by voters

in politicians, not to mention the considerable distance of policy and purpose from the original

electoral preference. This is undoubtedly a difficult issue to surmount in the absence of an EU

demos, and to create the direct accountability from the citizen to the institution may be putting the

cart before the horse.

It appears that problems arise due to the lack of clarity regarding the limits of democracy

and the use of administrative institutions. The use of such independent administrative institutions is

trite in western democracy and is often hailed as necessary horizontal checks on democratic

governance.104

While there is merit to output legitimacy offsetting the deficit, its credibility is increasingly

undermined by poor economic performance in the EU. Moreover the move toward an economically

integrated political union, and the consequential redistributive policies, will undoubtedly increase

100 ibid para 290-294101 ibid para 295-299102 Chalmers D, n19 p 126, referring to Article 10(2) TEU which promotes the ideals of representtive democracy as the foundation of the EU103 ibid See comitology and CORPER104 Bredt S, n2 p54-55

the salience of the ‘winners’ and ‘losers’. This underlines the need for accountability and discourse

as citizens begin to politicly polarise.

The need for balance between output and input legitimacy will by a key feature in the EU’s

continued existence. It follows that to attain input legitimacy, affirmative action out to be taken to

encourage some degree of affinity from the individual to the EU. This can be seen in the use of

OMC 105 by providing discourse between the MS and non-government actors on areas outside the

competencies of the EU.106 But much more needs to be done to secure confidence in the EU through

increasing institutional transparency and its accountability to the citizen.

105 Open Method of Co-ordination106 Scott J & Trubek D, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8(1) ELJ 1