European Union Council

QUESTION:

‘A major flaw of the EU institutional structure is that it is fundamentally undemocratic’. Discuss.

ANSWER:

Before I take up the question of undemocratic nature of the institutional structure of EU, I would like to consider the major power-wielder institutions. The principal institutions set up by the original EEC Treaty (now Article 7 (ex4) EC) to carry out Community’s tasks comprised:

• • The Assembly or Parliament.

• • The Council.

• • The Commission.

• • The Court of Justice

In addition Article 7 (ex4) provided for the setting up of a Court of Auditors and an Economic and social Committee, and the Merger Treaty 1965 (Article 4) for the creation of a Committee of Permanent Representatives of the member states (COREPER). Following the Single European Act (SEA), the Court of First Instance was set up in October 1988 (Decision 88/591 [1989] OJ C215/1). Under the Treaty of European Union (TEU) the Court of Auditors was added to the institutions listen in Article 7, and the various treaties, including the Constitution, as well as ECJ case law, have effected its evolution.

In 1979 were introduced direct elections that made this institution increasingly democratic since members are responsible to their electorate. A perennial complaint is that, despite the introduction of direct elections, the uniform system of election envisaged by Article 190(3) (ex 138(3) ) EC has not yet been introduced. Recent elections have revealed a low voter turnout, which may cast doubt on the claims of the European Parliament to legitimacy on the basis of the direct elections of its members.

The Council, following the TEU now called ‘The Council of the European Union’ consists of representatives of the Member States, one from each Member State, who must be at ministerial level, authorised to commit the government of the Member State, (Article 203 (ex 146) EC). Ministerial representatives tend not to be appointed specifically for their role within the Council; appointment is a consequence of their appointment within the domestic system. Although ministerial representatives may be accountable as part of an individual Member State’s government through that Member State’s parliamentary system, there is no body, at European or national level, to hold the Council itself accountable.

Since the Council is not a permanent body, meeting only a few days a month, and its members have full time responsibilities at home, either as ministers, or civil servants (civil servants have no power to vote), much of its work has been taken over by the Committee of Permanent Representatives (COREPER) (Article 207 (ex 151) EU). COREPER is a permanent and full time body, also consisting of representatives of Member States, whose main task is to scrutinise and sift proposals coming from the Commission prior to a final decision being made by the Council. COREPER is assisted in turn by a number of working groups. Although COREPER and the working groups might be central in ensuring the Council can operate as a decision making body, their use is problematic in terms of transparency and accountability.

The Commission consists of Commissioners nominated by individual Member States, and agreed among the Member States. Since the TEU, they are appointed for a period of five years (Article 214 (ex 158) EC), and may be reappointed. Following the entry into force of Nice, voting on this point will be by qualified majority voting. Since TEU, the Parliament has been given an increasing role in the appointment process, lending the Commissioners and especially the President of the Commission, a greater degree of legitimacy. At the moment, all Member States have one Commissioner (Article 213 (ex 1), amended as of 1 January 2005). According to a protocol adopted at Nice, once there are 27 Commissioners, the Council will determine the number of Commissioners and the mechanism by which they are to be selected. Some form of rotation is envisaged based on the principle of ‘equality’ and reflecting ‘satisfactorily demographic and geographical range of all Member States’.

The Commission functions as initiator or ‘motor’ of Community action. It has described itself as ‘the driving force behind European integration’ (2000) COM 34), although some commentators have criticised this view of the Commission as having a unitary goal, since its policies are fragmented and sometimes conflict with each other.

The Commission also acts as the Community watchdog: it has been described as the guardian of treaties. It is Commission’s task to seek out or bring to an end any infringements of EC law by Member States, if necessary by proceedings under article 226 (ex 169) EC). The Commission has complete discretion in this matter.

Again the Commission also functions as the executive of the Community. Once a policy decision has been taken by the Council, the detailed implementation of that policy, often requiring further legislation, falls to the Commission, acting under powers delegated by the Council. In exercising its powers of implementation the Commission is subject to the supervision of a range of advisory, management and regulatory committees, comprising national civil servants and appointed by the Council for this purpose. This process is referred to as ‘comitology’. It has been suggested that this system, together with the Council’s power under Article 202

(ex 145) (3^rd indent) to reserve the right ‘to exercise directly implementing powers itself’ alone, or on the advice of its committees, tends to undermine the Commission’s authority. Comitology has also been criticised for adding to the lack of transparency over democratic accountability in the decision-making process.

The EC-decision making process has often been criticised for its lack of democratic legitimacy. This is frequently referred to as the ‘democratic deficit’.

There is a general agreement about the existence of an undemocratic deficit in the institutions of EU. There is no denying the fact that democracy is the best form of governance available to a state actor.

This must be pointed at the very outset that the nature of democracy at the level of EU must be judged on different criteria to that of the states. Weiler et al suggest that there are three levels within EU each of which is characterised by different forms of democracy. These are:

• • The intergovernmental level that enfolds conventional diplomacy and international politics.

• • The supranational level which revolves round the institutions of the Union, and the member states.

• • The level of Union itself, where it behaves in a similar fashion to a national assembly, replete with interest groups and technocrats.

But the interpretations of democracy offered at these different levels correspond only marginally with what citizens of Member-States experience. Such conceptualisations of democracy as ‘pluralist’ or ‘neo-corporatist’ attempt to side-step the real issue. This is defining democracy with reference to EU, when the process should be reversed – a single and coherent form of democracy should firstly be defined, and then applied to all levels of EU. A formulation of democracy should respect the principles of the separation of powers, and of broadly reaching representation. This, however, would suggest a Euro-federalist agenda.

It would be important to consider the democratic nature and mandate of the institutions of EU. The Council, as representative of the elected governments of member states has a democratic mandate. The Parliament, constituted by direct election, has an even stronger claim to be legitimately democratic. However, the problem lies with the Commission. Commission acts a guardian of the treaties and ensures the long-term goals of the EU, without being swayed by short-term national political interests. It also acts as a major initiator of legislation of the EU. Paine suggests that representation should be directly proportionate to power: an unrepresentative body should have no power at all. Yet the Commission has a body with broad legislative and executive powers.

But the question is: Why is it necessary for the EU that began as an economic body to manifest some of the attributes of a state? The answer is quite simple. The liberalist market reforms and increasing civil liberties bring about free-market economy is the precise point of organisations like IMF and World Bank. This is also the reason behind free-trade agreements with countries such as China. One can characterise democracy, free-market economies, and respect for civil liberties as prerequisites of all Western governments, and an aspect of their claim to statehood. Demanding more democracy from EU, we are demanding of it a state-like entity. Thus it is necessary that the federalist agenda should be revealed. It would be interesting to note that EU itself aspires to be more democratic and therefore, perhaps, more state-like. The alternative to this argument is that democracy is unnecessary and perhaps unrealisable in a trans-national actor.

Today’s EU has the following organisations:

• • The Organisation for Economic Cooperation.

• • The Council of Europe.

• • European Coal and Steel Community

The aim of the last mentioned organisation was to render the continental European combatants of World War II incapable of making war on each other by creating a common market in coal and steel. The ECSC was the product of a federalist outlook; the desire to pool/surrender sovereignty in a number of areas. These areas were expanded in 1957 by the Treaty of Rome, which gave rise to the European Economic Community (EEC), and EurAtom. The areas that comprised the core community activities tended to be of economic importance: agriculture, competition, taxation and tariffs. Their aims, in other words, were economic. It is only in passing that the Communities had any socio-political impact. As the socio-political sphere collided with the economic sphere, the EEC faced a challenge it was ill-equipped to deal with. This is the challenge of fundamental rights and principles within the Community system. It is precisely these fundamental rights that underpin and guarantee democracy.

After taking into account the democratisation of the EU in general, it would be important to consider arguments relating to the democratic deficit with in it. These can be grouped into the following six headings:

• • The inability of the electorate to change the executive.

• • The problem of executive dominance as well as distance.

• • The inscrutable committee structure.

• • Issues of transparency and complexity.

• • The movement away from state constitutional control over legislation.

• • The question of substantive imbalance.

In his Gettysburg address, Abraham Lincoln pointed out one of the fundamental aspects of democratic governance: it must be ‘…of the people, by the people, for the people …’ This statement clearly establishes that any election which cannot replace the government, theoretically at least, is not a true election. EU confronts this very problem. Given the distributed legislative powers of the Commission, Council, and Parliament, it is surprising when compared to a geographically-bounded democratic polity that only the Parliament that is directly elected. It is interesting that ‘European Governance – A white Paper’ suggests no remedies to this situation. It would be odd in fact were the Commission to suggest itself out of existence, at least in its current form. It would be a weak counter-argument to suggest that the Council is a ‘secondary’ and the Committee a ‘tertiary’ elected body. It would be remarked that power is inversely proportional to representation; the Commission and the Council tend to have more powers vested in them by the treaties than does the Parliament. It is only the Parliament that must be directly elected. Craig and de Burca suggest that it is not necessarily true that the Parliament has no real power. They suggest that most of its amendments have been accepted and the co-decision procedure is now widly used. It should be noted that the current structure is not the way that the EU has always been organised. As originally constituted, the European Parliament had drastically reduced powers. This reflects the original purpose of the EU as an economic body, rather than as a proto-state.

Another requirement of democratic society is that of knowledge. This, however, is not as basic as issues of representation; it makes democracy more efficient and productive.. This usually takes the form of openness and accountability. It is far harder for a system of government that hides its mechanism of decision-making to be democratic than one that is openly accountable. A citizen cannot make informed political decisions without at least a vague comprehension of the way in which the political system works. This is a concept that the White Paper has warned to – it lists numerous mechanisms by which the ‘Community Method’ can be made more accessible to and understood by citizens of Europe:

“… the EU’s Europa Website, is set to evolve into an inter-active platform for information, feedback and debate, linking parallel networks across the Union”.

The above quotation is suggestive of information jargon. It is apparently hoped that electronic distribution of information will assist in the openness project. It seems unlikely that a website will anole rectify the ills that beset the Community.

The question of constitutional control over member state’s legislation is an important one. Indeed, the German and Italian constitutional courts are arguably responsible for the creation of a fundamental rights dialogue within ECJ. As powers devolve from state systems, the oversight that such courts provide will necessarily become weakened. This is of greater importance in more strongly constitutional systems in which a written constitution delineates the areas of competence of the various arms of Government.

The issue of ‘substantive imbalance’ relates to Marxist critiques of the European legal order. Theorists suggest that the relaxation of trade regulations within the common market have exacerbated labour/capital divisions within EU. This ia perhaps more a problem with free market liberal capitalism than with EU, and as such is outwith the scope of EU law to cure.

Craig and de Burca suggest that the above critiques are all made from the point of view they refer to as status quo ante. They believe that without the EU, the requirement for international co-ordination and co-operation would still have to be met:

‘…if there were no EU, a more likely situation would be ad-hoc agreements. These would be complex, confusing, time-consuming and, perhaps, no more democratic’.

This would suggest that the current arrangement is neither complex, nor confusing, nor time consuming. This argument is essentially that the EU legal order is at least only as bad as what the alternatives could be.

The White Paper is seemingly more concerned with the more superficial aspects of democracy. Granted, such issues as greater legislative co-operation, openness, and discussion are important. They do not, however, address the fundamentally flawed and undemocratic structure of the current system. The White Paper suggests small-scale changes that will affect a marginal increase in the democratisation of EU. These changes amount to window-dressing, rather than a serious commitment to democratic reform.

The idea behind the introduction of European citizenship was a desire to create a greater connection between individuals and the Community/ Union. This developed the direct link between individual and Community introduced with direct elections to the Parliament (recognised in the Constitution at Article 1-46(2). Nevertheless, the concerns remained, and the democratic legitimacy of the Union is one of the central themes of the Constitution. Not only is one of the Union’s values expressed to be a respect for democracy (Article 1-2), which is not new, but a separate title, Title VI, in Part 1 of the Constitution is entitled ‘The democratic life of the Union’, emphasising the significance of democracy within the Union order. In particular, Article 1-46(1) states that ‘the functioning of the Union shall be founded on representative democracy’, though the obligation on the institutions is stated to be to involve citizens by ‘appropriate means’ (Article 1-47(1) ), without specifying those means. The issues to be addressed are whether the Constitution adds anything new and the effect of new provisions; are they merely words with little impact?

One of the main concerns is the lack of democratic accountability of the institutions. The Commission is not elected at all, the Commissioners being political appointments by individual Member States. Although the Council of Ministers usually constitutes members of the national parliaments, those members tend not to have been elected for the purpose of serving as a member of the Council of Ministers. Any control is therefore indirect and only over the individual members rather than the Council as a body. The British people will only have control over the British ministers but not, for example, on Dutch ministers. Ministers can avoid taking responsibility for a decision by passing it on to ministers of the other Member States. The quality of democratic control will rest with each of the national parliaments, so its standard may well vary throughout the Union.

Another concern is the use of non-elected bodies in the decision-making process. There are many of these, for example, ECOSOC and the Committee of the Regions. These fulfil an advisory role only. Of more concern here is COREPER, which plays an important role in filtering out non-contentious issues. It has been argued that in so doing, although technically the final decision is the Council’s, in effect COREPER is functioning as a decision-making body. In deciding whether issues are contentious or not, COREPER frames the terms of the debate in Council, potentially having the effect of discouraging debate on certain issues. The role of COREPER is likely to remain strong.

The Parliament, the only directly elected body, has historically been the weakest of the decision-making institutions. Its position was certainly improved by TEU by increasing its control over the Commission, introducing the Ombudsman and introducing the co-decision procedure. This latter, however, operated only in limited areas. The ToA and Nice increased the areas in which co-decision is used and that the ToA amended the procedure so as to limit further the Council’s power under this procedure. Both of these moves can be seen as improving the democratic legitimacy of the community, though, of course, problems have been noted regarding the operation of the conciliation committee. The Constitution would bring a further shift in the areas in which co-decision is to be used. Significantly, the co-decision procedure is also renamed by the Constitution: ‘ordinary legislative procedure’. This change in terminology re-emphasises the fact that it is this procedure, which requires the greatest level of involvement of the European Parliament that should be the normal or default form of law-making in the Union.

The complexity of the legislative procedure means that decision-making is not transparent. Consequently, it is difficult for individuals to become involved in the process and to hold the decision-makers accountable. The suggestion was to simplify these procedures, without altering the institutional balance. Similarly, improvements could be made in the way documents are drafted and made available. A Council resolution on plain language was passed in 1993 ([1993] OJ C166), but the position did not improve much. ECOSOC subsequently made an own-initiative resolution on plain language, requesting that the Commission make attempts actually to comply with 1993 Council resolution on the same subject, arguably as to little effect. The Commission has been aware of the concern, producing annual reports on ‘Better Lawmaking’ together with various initiatives on simplifying legislation in specific areas. In this context, subsidiarity and proportionality may also have a role to play in determining the scope and style of legislation. The need to take action was re-emphasised by the White Paper on Governance (COM (2001) 428 final). Access to legislative process by the individual seems unchanged.

Conclusion

In the final analysis, let this be concluded that if Parliamentary institutions are not open to civil society, if citizens are alienated from politics, if there is no trust between voters and the elected, this can result in the non-democratic or anti-democratic use of security in politics. Thus the primary cause of democratic deficit is the people’s alienation from politics, therefore ‘turn consumers back to citizens’.

The way in which the institutions of EU generally function in order to promote the neo-liberal economic agenda betrays of the democratic deficit. The unelected and powerful Commission, which has been described as ‘part civil service, part government’ has the jealously guarded the right to initiate legislation. It implements Community policy, manages the EU budget, conducts external relations on behalf of the European Union and is widely regarded as the ‘guardian’ of the Euro federal idea. It has often been described as ‘strategic authority established by the founding fathers to guarantee continuity of the integration project despite the political or geo-political hazards’. While this may explain the unusual powers given to such an unelected body by the early architects of the EU, the extent to which the Commission as a body appears to have become an ideological champion of neo-liberal economic policies, without reference to the ordinary people of Europe or their ideological preferences, must now be a matter for concern.

As to the other institutions, the Council of Ministers appears to be both executive and part legislative, to date has met behind closed doors and the results of its discussions are not readily publicly available. The directly elected European Parliament, the only institution with Europe-wide legitimacy, finds itself excluded from critical legislative and policy decisions that affect the whole of Europe, although its powers have gradually been increased over the last number of EU treaties. Finally the European Council has to be the most undemocratic institution of the Union. It is composed of the Heads of State of all the Member States. This is an extremely powerful body to which matters are often referred for resolution that cannot be resolved by the Council of Ministers. Despite its power, the European Council is not subject to any discipline or procedures within the Union. While the individual Heads of State are accountable to their own electorates at home, the European Council as a body is not answerable to anyone in the European context. Therefore the flaw is certainly there in the institutional structure of EU – it is undemocratic.