Does the EU Suffer From a Democratic Deficit?

“If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will best be attained when all persons alike share in the government to the upmost”

- Aristotle

Introduction

The above quote is as salient today as it was when first written by Aristotle [1] and possibly even more so when one examines the stance adopted by the population of nations in the European Union (E.U.) when voting to adopt proposed treaty changes. The ‘NO’ result on the Lisbon Treaty in Ireland in June 2008 could be viewed as the ultimate flexing of the muscles of the populace in this jurisdiction in response to their perceived isolation by the non-majoritarian institutions which promotes a type of circulatory decision making process [2] but permits little input from the European public sphere.

Due to its enlargement in 2007 the European Union currently has 27 member states. This has increased perceived pressure on the E.U. to overcome complexities which are apparent in its decision making process and address an ever growing debate in relation to the coined phrase of a ‘democratic deficit’. While from the time of its ancestral foundation in the European Coal and Steel Community (ECSC) [3] the current E.U. has developed and evolved into a complex structure with a wider vocation.

In the research of this particular assignment the author has discovered that there is credence to the argument of ‘democratic deficit’, when one examines the democratic origins of the various bodies involved in the policy making process of the EU at present. The author intends examine the idea of the ‘democratic deficit’ and attempt to understand the fears of the citizens on whose behalf the phrase is said to have been coined. Further discussion will then follow on the ironic contribution of the European Court of Justice (ECJ) in educating citizens to the power of the E.U. The powerful proofs of the existence of the democratic deficit will be listed and discussed through the arguments supporting its existence. Also addressed in this section is the lack of a European political stage enhancing the notion of the democratic deficit.

There will then follow an outline of the attempted consolidation of the E.U. treaties by means of the Treaty on the Constitution of Europe (T.C.E.). The author will then set out in detail the changes inherent in the ratified Lisbon Treaty that go some of the way to counter such deficit together with perceived shortcomings that have emerged.

The Democratic Deficit

The first reference to the democratic deficit was difficult to source with many people laying claim to its identification. However, the first use of the term is believed to be attributed to David Marquand [4] in 1979 when referring to the European Economic Community, the forerunner to the European Union. It was later described by Sanford Levinson [5] as occurring when ostensibly democratic organizations or institutions (particularly governments) fall short of fulfilling the principles of the parliamentary democracy in their practices or operation where representative and linked parliamentary integrity becomes widely discussed.

A democratic deficit occurs when ostensibly democratic organisations or institutions in fact fall short of fulfilling what are believed to be the principals of democracy [6]

The right of citizens to have their voices heard and by such influence the nature and enforcement of various policies and legislative measures is the very cornerstone of modern democracy and good governance. At a domestic level the accountability of the government to its voters is maintained through that particular nation’s parliament. Democratic legitimacy is achieved when there is a high degree of trust in a political system and its institutional procedures which serve as a system to check and balance the powers of those who govern with the mass participation of the people. The deficit arises when it is perceived by the citizens that the decision making institutions are not only formed but maintained in a manner that is beyond their influence, yet has the power to draft and implement policies which directly affect the individual citizen. In other words the system of checks and balance may exist in some format but are so far removed from the citizen that they are powerless to influence or object to the manner of its business or the directional projection of its future.

The European Court of Justice (ECJ) and the genesis of the principle of Direct Effect

Ironically, it would appear to have been the E.C.J. that was instrumental in bringing to the attention of the citizens of Europe that they had engaged in a revolutionary system of governance where decisions made in Europe could directly affect their lives. This occurred in the form of decisions made by the E.C.J. in seminal cases such as NV Algemene Transport-en expeditie Onderneming Van Gend & Loos [7] which introduced that the European decision making machine had the power to produce legislation [8] which introduced the principle of ‘direct effect’ on all the citizens of Europe. This established that a citizen was able to enforce a right granted by European Community legislation against the State (vertically) – the question of whether rights could be enforced against another citizen or companies (horizontally) was not addressed until a later decision in Defrenne v Sabena [9] . This idea was further strengthened by the E.C.J. decision in the case of Costa V. Enel [10] which resulted in the realisation of the citizens of Europe that the legislation which emanated from Europe had ‘supremacy’ over the domestic laws governing all of the independent states in the union.

One would expect that the decisions of the above cases would have initiated a process encouraging citizens to engage themselves further in European politics to ensure their voices were heard but this did not occur. If this indeed was the reaction of the citizens of Europe it did not reflect in the low turn out for polling in European elections. One quite often quoted reflection of this is the U.K. statistic that in 1999 European Elections 11 million people voted as against the 23 million who had voted in the third series of Big Brother in 2002 [11] . In fact the voters turn out across the EU had fallen from 63% in the first European elections in 1979 to 49.5% on 1999 [12] .

Another important aspect, which contributed to the concerns by citizens, was that in 1966 the Luxembourg Accords [13] gave every single member state the power to veto policies by invoking their national interests. This ensured that in order for legislative measures to be adopted it required unanimity thus ensuring that the threat of the majority continuously suppressing the minority did not raise any concerns. However in the Nice summit concerns were born that member governments could be outvoted and this was further progressed when the heads of state in the European Union agreed to expand qualified majority voting (QMV) or super majority in the Council of Ministers to 35 new policy areas. The Q.M.V. is a weighted voting system based on the number of countries and population of those voting in favour i.e. at least 14 (or 18, if proposal was not made by the Commission) countries; at least 255 of the total 345 voting weights and at least 311 million people represented by the states that vote in favour.

Arguments supporting the existence of a democratic deficit

Critics of the democratic legitimacy of the E.U. tend to point to three areas of democratic accountability

1. representative democracy – European and national parliamentary involvement
2. participatory involvement – pluralistic coverage of interests of all nationalities
3. deliberative democracy – debates on all issues between EU citizens

The inclusion of national parliaments in the democratic process is important in countering any potential deficit as increasing the involvement of the European Parliament in areas such as the codecision [14] legislative procedure or the regulatory procedure for decision making is not seen as sufficient. There is no single definition or meaning to the democratic deficit which is possibly attributable to the myriad of nationalities and backgrounds of the people of Europe who have defined it based on their own experiences and influences.

There would appear to be a number of consistent factors which support the argument of the existence of a democratic deficit and these are outlined in Craig and DeBurca [15] as follows –

1. Unresponsiveness to Democratic Pressures

It is a cardinal feature of democratic regimes that voters can change the government. This is not the case within the European Union. Legislative power is divided between the Council, the Commission and the Parliament. But it is only the Parliament which is actually directly elected by the citizens. Therefore if a resulting European election were to change the composition of the Parliament this would not result in a majority policy change in Europe as the Parliament is one of three pillars which compose legislation.

2. Executive Dominance

European integration has meant an increase in executive power and a decrease in national parliamentary control. While at a domestic level the Parliament can keep check on the executive this is not the case at the European level where the Council of Ministers are not held to account for their activities on the European stage by their respective domestic parliaments and therefore exercise a greater power on the Council of Ministers then they would be able to do on a domestic stage.

3. By-passing of Democratic Argument

The argument of comitology [16] – where the delegation of duties to civil servants (or in European parlance – technocrats) results in the drafting of papers relating to important decisive issues but which are unduly influenced by unelected officials isolating the citizens even further from the decision making process and placing it in the hands of often complex committee structures.

4. Distance Issue

The obvious fact that decisions are made predominantly in Brussels and not in the seat of government of the individual nation leads to further isolation of the citizen away from the powerful decision making system.

5. Transparency and Complexity Issue

The failure of the Council of Ministers to conduct their negotiations in an open and transparent fashion. Where transparency does exist in the form of the European Parliament or the European Commission, such complex procedures adopted in the process leads all but experts in a state of confusion resulting once more in the isolation of citizens through ignorance of the complex procedural system.

6. Substantive Imbalance Issue

The widening of the European market has left commentators with leftist views arguing that the deficit also encompasses the imbalance between labour and capital which is further exacerbated by the freeing up of the above market.

7. Weakening of the Judicial Control Issue

A number of legal systems possess courts which have powers to decide (either ex-ante or ex-post) the constitutionality of primary legislation. The transfer of competence to the community means that such powers are thereby reduced in scope.

Further ideas developed by Husamettin Inanc and Hayrettin Osler give two further insights to the reasons for the democratic deficit [17]

8. No European Demos

The population of EU is not, per se, a union of people as in the United States but rather a union of many peoples. There are 11 official European languages not taking account the dialects and lesser used languages spoken by the minorities. They further argue how is it possible to construct a democracy in the EU with a lack of a common community capable of a singular form of communication which includes a popular means of informative media.

9. Lack of a European Political Stage

Possibly one of the bigger issues to consider is that there are no European wide political parties which can compete with each other in European elections and who pursue solely European mandates. This political void potentially results in citizens voting for candidates in their own domestic state, who usually hold the same political ideals as the government of the day. But this does not serve the European citizens as with each individual state electing a domestic candidate to the European Parliament representing their own countries best interests there is a lack of any European political mandate.

The Treaty on the Constitution of Europe (TCE) – Attempted Consolidation

The T.C.E. was an unratified international treaty intended to create a consolidated constitution for the EU. Had it been agreed upon it would have replaced the existing European Union treaties with a single text but yet maintaining the principles of conferral [18] , subsidiarity [19] , proportionality [20] and the primacy of E.U. law [21] . The Treaty was signed on 29th October 2004 by representatives of the (then) 25 member states and agreed by 18 member states including referenda held by Luxembourg and Spanish governments. Although rejected by French & Dutch voters in May and June 2005 respectively it would appear that the TCE would have gone some way to alleviating the notion of the democratic deficit. Had it been passed the following changes would come into effect [22] –

• It would have extended the power of co-decision to virtually all policy areas. Thus making the European Parliament an equal partner in the E.U. decision making process along with the Council.
• It would have required the Council meetings to take place in public
• It would have ensured that national parliaments would have received timely prior notice of EU legislative proposals in ample time to mandate ministers on how to vote at Council
• It would have created a new citizens’ right of initiative, obliging the Commission to consider any proposal for legislation that could attain the support of 1 million EU Citizens

The counter argument to this brings to light what it would not have provided –

• It would have reinforced that E.U. laws supersede national law
• The European Commission would remain the sole initiator of legislative proposals. Other bodies (Parliament, Council, citizens, etc.) can only require it to consider drafting a proposal
• The national parliaments could sent back legislation to the Commission with recommended proposals but these could be ignored by the Commission if it chose to do so

The Lisbon Treaty

Initially referred to as the Reform Treaty, the Lisbon Treaty is an international agreement that amends the two treaties on which the constitutional basis of the E.U. is formed. It was signed by the E.U. member states on 13th December 2007 and came into force on 1st December 2009. It amends the Maastricht Treaty (Treaty of the European Union – TEU) and the Treaty of Rome (Treaty Establishing the European Community – TEC). The latter was renamed the Treaty on the Functioning of the European Union (TFEU). The treaty was born out of the failure to ratify the 2004 constitution which would have completely superceded all previous treaties.

Confusing, unintelligible and impenetrable were some views on a treaty that was to supposed to ‘simplify’ and consolidate the previous treaties mentioned above and amend their contents in a document that ran to hundreds of pages of legal articles, protocols and declarations. The Irish were the only country to hold a referendum on the treaty – when the first rejected the treaty a second was held it which it was subsequently passed. Some of the main changes it introduced list as follows –

• the term of the president of the European Council will last for two and half years replacing the current system where presidency is rotated between member states every six months.
• the creation of an E.U. High Representative for Foreign & Security Policy which combines the current roles of the E.U. Foreign Policy Chief and the EU External Affairs Commissioner
• the treaty makes the E.U. Charter of Fundamental Rights a legally binding document – this charter lists the human rights recognized by the European Union.
• under a new citizens initiative scheme (E.C.I.) the commission is obliged to consider any proposal signed by at least one million citizens from a number of member states. This initiative introduces a new form of public participation in E.U. politics by enabling the public to call on the European Union to create new legislation. Ground rules and the procedures to be followed in this area are laid down by an E.U. regulation, which is currently being formulated. As well as the relevant number of signatories the policy area must relate to one in which the E.U. has the power to act upon in the first instance. It is expected that this initiative will be launched in early 2011.

Some critics would argue [23] that the E.C.I. would have the appearance of giving the citizen a voice on the European stage but in effect the process is complicated coupled with the fact that the Commission is under no legal obligation to act on any submission that is made.

All proposals for legislative change now have to be sent to the national parliaments who have a period of eight weeks to offer a reasoned opinion as to whether the proposal respects the principle of subsidiarity [24] . This is an organising principle that determines whether matters ought to be handled by the lowest or least centralised competent authority. It is a fundamental principle of E.U. law that states that the E.U. may only legislate where the action of individual countries is insufficient. In practice, the concept of subsidiarity is frequently used in a more informal manner in discussions as to which competences should be given to the community and which ones are to be retained by the member states alone. If enough parliaments at a national level object to a proposal the commission can decide to maintain, amend or withdraw it

f) the European Commission is the executive arm of the European Union putting forward legislation and ensuring policies are correctly implemented. Since 2004 it has been made up of 27 commissioners but under Lisbon it is reduced to 18 from 2014 with membership rotating every five years. This, in effect, means that only two-thirds of member states will have their own commissioner at any one time and each will lose its commissioner for a five year time period.

the European Parliament has joint law making powers with the Council of Ministers over approximately 75% of legislative areas. Under Lisbon, co-decision will extend to virtually all areas of E.U. policy, which effectively increases its legislative power. The parliament will also reduce its numbers from 758 M.E.P.’s to 751 (Ireland’s M.E.P. count will drops from 13 to 12).

Lisbon also establishes new areas of competence within the E.U. in the fields of health, education, tourism, energy and sport. It further sets out those areas over which the E.U. has exclusive competence, shared competence [25] or supportive competence

Within areas that require Q.M.V. the current rules require the support of over 72% of member states for new legislation to be passed. From 2014 a motion can be passed if supported by 55% of states and secondly if these states represent 65% of the E.U. population. Such legislative changes can also be passed if less than four countries oppose resulting in an easier process in which these changes can be made.

in a move away from unanimity the Lisbon Treaty has resulted in an increase in the number of policy areas that are decided by majority vote. Q.M.V. will become the norm in all areas [26] with the exception of taxation and defence.

it provides for the establishment of a framework on a common defence policy while maintaining respect for the neutrality of certain member states. It also extends the range of peace keeping and humanitarian missions for which the E.U. may draw on member states to include disarmament, military advice and post conflict discussions.

According to Sieberson [27] the Lisbon Treaty does address quite a number of concerns that contribute to the democratic deficit. There will be less complexity from the creation of a single E.U. entity and the ratification of the treaty demonstrates that the European Union can offer more opportunities for public input – behaving more in line as a democratic national government. However he further states that many of the concerns over democratic legitimacy have not been fully or even partially addressed. These issues, he says, have not been taken into account by the treaty and reflect an aspiration to have the E.U. resemble the governments of its member states. They include –

• the granting of full legislative to the European Parliament, and in particular the outright power to initiate legislation
• a greater system of accountability through a system of checks and balances of the principal institutions
• commision members should be appointed by popular vote
• a greater openness of the Council of Ministers and the European Council through public forum
• all legislative and policy making at the Council and the European Council should be subject to a form of majority vote
• a strict majority rule should be enforced by eliminating the practice of ‘opt-outs’ and any departure from established rules by individual member states

Post Lisbon, the basic roles of the E.U. will not change and its method of operation will carry on as before. The division of competences between the Union and its member states will mostly remain unchanged leaving the latter with the power to veto in key policy areas. The effects of the Lisbon Treaty would most likely lead to a ‘hybrid’ Union between a federal system and an intergovernment organisation (IGO). It will not possess all of the democratic elements of a federalist state such as full majoritarian rule or a system of extensive balance checks but neither will it leave all aspects of democracy to the government of the individual member state as an IGO [28] might.

Conclusion

In the examination of the above topic I have come to a number of conclusions not least of which is an understanding of the complexity and different dynamics with which the European Union operates. These complexities are on the one hand justified when consideration is given to the attempt to reach common ground with the huge mix of national cultures and the perceived reluctance of governments to relinquish important decision making powers to a central form of government over which they have limited control. En revanche it is a necessary balance, which must be achieved if the European project is to advance.

The notion of the democratic deficit is an unfortunate result of the attempt by the Council of Ministers and Commission to first establish the best platform of governance away from the influence of the citizens before being satisfied that the system that results will secure adequately the best interests of their individual states. However this being the case it is directly at odds with the nature and goals of a European Union to secure a common E.U. citizenship for all regardless of geographic location or individual state boundaries.

While the additional powers given to the democratically elected European Parliament go some small way to alleviating the notion of the democratic deficit, unless there is more accountability and transparency to the manner in which the Council and Commission conduct their business these changes will have a limited effect. Europe is already perceived by its citizens to be complex enough and possibly the time has come for accountability, transparency and clarity to rule the day in the future planning of Europe.