Author: Mathias Baudena
The author is a law student at the London School of Economics. His areas of interest lie in Public, European and Public International Law, with a particular focus on issues of constitutionality. Currently, his research carries on the state of the EU, exploring the border between the political and the legal to assess its continued legitimacy.
Abstract
The EU comes under heavy fire for its gaping democratic deficit. Some suggestions have been adduced to tackle this issue. These focus on according a greater role to national representative institutions in the process of EU governance and law-making. The present article argues that this proposal is misconceived as it ignores the constitutional limits to doing this, as well as the way in which interests are distributed within the polity. A suggestion is adduced to bring about a fuller notion of democracy and to provide a more representative platform for diverging interests.
Introduction
Many commentators have bemoaned the ‘democratic deficit’ plaguing the EU and proposed a number of cures enhancing citizens’ role in influencing EU decisions.[1] One such proposal was to empower National Parliaments in EU law-making with initiatives such as the Early Warning Mechanism.[2] This article will argue that solving the democratic deficit in the EU will not happen by according a central role to representative institutions on the national level for two reasons. Firstly, one should not assume that under the current framework, any institution is capable of substantively affecting policy choices at the European level. Such a vision disregards the extent to which the Union’s “economic constitution” severely constricts these choices; this proposal therefore only advances a ‘thin’ version of democracy instead of a mechanism allowing citizens to truly affect their ‘conditions of life’.[3] Secondly, even if we disregard the constitutional framework, it is clear that increasing the role of national level representative institutions is the wrong mechanism for tackling the EU’s democratic deficit as it rests on a skewed vision of ‘demoïcracy’ and entrenches opposition between member states instead of fostering transnational cleavages.[4] A better proposal would therefore be to foster political deliberation and decision-making in transnational forums representing individuals as both national and European citizens.[5]
Understanding the EU’s Democratic Deficit
It is unclear what representative democracy in a polity beyond the nation-state should look like.[6] Do we expect the same type of democracy in the EU as we do from nation states? If we adopt the simple benchmark of democracy being a mechanism which effectively transforms the preferences of the majority into action, there is a wide academic consensus which identifies the European Union as democratically lacking.[7] Hix and Follesdal identify, amongst other things, the ‘policy drift’ from voter preferences as proof that the EU is incapable of putting into effect majority choices.[8] The need for democracy in the EU has become increasingly urgent in light of its legislative incursion into areas of greater political salience.[9] Policies with redistributive effect, for instance, need to be taken democratically in order to be legitimated in the public eye.[10]
It is Impossible to Tackle the Democratic Deficit with the Current EU Constitution
Proposals which target institutional tinkering in order to resolve the EU’s gaping democratic deficit disregard the way in which the EU’s ‘economic constitution’[11] limits the possibility for any institution to substantively affect policy choices. As Scharpf notes, although the official ‘Constitutional Treaty’ put forward by the EU in 2005 was rejected by referendum in France and elsewhere, EU law, through treaties and key judgements (such as Van Gend en Loos[12]and Costa),[13] has a constitutional quality. Yet, this ‘constitution’ goes ‘beyond [a traditional constitution] because it regulates in detail a wide range of matters that democratic constitutions would leave to be determined by political legislation’.[14] The European legal system effectively constitutionalised macro-economic policy choices,[15] making them immune from political contestation.
From a democratic perspective, this is deeply problematic. It signifies, firstly, that politically contestable decisions are imposed on the whole polity through the courts.[16] As Dawson and De Witte observe, the European Court of Justice calls on this overarching constitution to ‘steer policy choices within formal legal discourse’.[17] Questions can be raised as to the legitimacy of this channel. Secondly, it means that political institutions are stripped of the capacity to affect policy choices.[18] This suggests that even if we were to grant national parliaments a central role within EU governance, they would still have to bow down to the dictates of the constitution. Tackling the democratic deficit in this way would simply continue the pattern of European integration using democracy as a ‘thin’ concept used to legitimate policy decisions stemming from the ‘economic constitution’, instead of replacing it with a fuller conception providing for self-determination of European people.
National Parliaments as the Right Forum?
For the purposes of the following section, we shall assume that the EU has, as Grimm suggests, ‘rolled back’ its constitution to rules of ‘genuine constitutional status’,[19] meaning that political institutions are effectively empowered to steer European policies.
Several factors explain why increasing national parliamentary involvement in EU governance and law-making is seen as an efficient way to tackle the EU’s democratic deficit. After the highly controversial OMTjudgements,[20] EU policies suffered an irreparable loss of output legitimacy.[21] National parliaments were identified as institutions which enjoyed democratic legitimacy; it was felt that the EU should grant a greater voice to these forums which had lost significant law-making power in the integration process.[22]
However, this is arguably the wrong way to reduce the democratic deficit. Not only does it undermine the collective EU project by encouraging citizens to think about the EU along strictly national lines, but it also ignores the existence of transnational functional cleavages.[23] Bellamy and Castiglione suggest that the EU must be viewed as a ‘demoïcratic’ association of ‘several demoï’ (i.e.‘peoples’) who are best represented within the polity by national parliaments.[24] This perspective of ‘demoïcracy’ does not satisfactorily resolve the tension between being represented in the EU as both citizens of the EU and citizens of member states: it focuses exclusively on representation of national interests, ignoring other forms of cleavages. It is plainly short-sighted to view member states as representing a single homogenous vision. A better suggestion would therefore be to adopt Dawson and De Witte’s proposal of having two supranational institutions: a European Parliament where citizens are represented quaEuropeans, and a European Senate where they can be represented qua nationals.[25] A multilateral representation of people and states at the European level would empower the notion of democracy as a way to bring about effective self-determination.[26]
Conclusion
Underlying this discussion is a vision of democracy which enables effective self-determination;[27] it is not a ‘thin’ conception as is currently in place. Currently, the greatest obstacle in the way of enabling citizens to truly affect their conditions of life remains the EU’s constitutionally entrenched policy objectives. It is patently clear, therefore, that granting a central role to national parliaments in EU decision-making will not plug the democratic deficit – what is truly needed is a ‘rolling back of the constitution’ whereby policy choices are placed in the hands of politically accountable bodies. It has been argued that such power should not be placed in the hands of national representative institutions, as such an institutional set-up would inaccurately represent the diversity of interests within the EU. The continued legitimacy and existence of the EU rests on its ability to ensure effective democracy beyond the nation state – changes in this respect therefore need to come as a matter of urgency.
Sources:
[1] Weiler, J.H.H., Haltern, U.R. and Mayer, F. (1995) ‘European Democracy and its Critique’. West European Politics, Vol. 18, No. 3, pp. 4–39
[2] Protocol 12008E/PRO/02 on the Application of the Principles of Subsidiarity and Proportionality, art 7
[3] Dawson & De Witte, ‘From Balance to Conflict: A New Constitution for Europe (2016) ELJ 204.
[4] Chevenal and Schimmelfennig, ‘The Case for Democracy in the European Union’ (2013) 51 JCMS 334-350.
[5] Dawson & De Witte, ‘From Balance to Conflict: A New Constitution for Europe (2016) ELJ 204.
[6] Sprungk C, ‘A New Type Of Representative Democracy? Reconsidering The Role Of National Parliaments In The European Union’ (2013) 35 Journal of European Integration
[7] Sprungk C, ‘A New Type Of Representative Democracy? Reconsidering The Role Of National Parliaments In The European Union’ (2013) 35 Journal of European Integration
[8] Follesdal and Hix, ‘Why There Is A Democratic Deficit In The EU: A Response To Majone And Moravcsik’ (2006) 44 JCMS: Journal of Common Market Studies
[9] Dawson & De Witte, ‘From Balance to Conflict: A New Constitution for Europe (2016) ELJ 204.
[10] Chevenal and Schimmelfennig, ‘The Case for Democracy in the European Union’ (2013) 51 JCMS 334-350.
[11] F. Scharpf, ‘Deconstitutionalisation and Majority Rule: A Democratic Vision for Europe’ (2017) 23 European Law Journal 315.
[12] Case 26/62, N.V. Algemeine Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 E.C.R. 1.
[13] Case 6/64, Costa v. ENEL, 1964 E.C.R. 586.
[14] Scharpf, ‘Deconstitutionalisation and Majority Rule: A Democratic Vision for Europe’ (2017) 23 European Law Journal 315.
[15] Wilkinson, ‘The Reconstitution of Postwar Europe: Lineages of Authoritarian Liberalism’ LSE Legal Studies Working paper 05/2016
[16] Wilkinson, ‘The Reconstitution of Postwar Europe: Lineages of Authoritarian Liberalism’ LSE Legal Studies Working paper 05/2016
[17] Dawson & De Witte, ‘From Balance to Conflict: A New Constitution for Europe (2016) ELJ 204.
[18] Scharpf, ‘Deconstitutionalisation and Majority Rule: A Democratic Vision for Europe’ (2017) 23 European Law Journal 315.
[19] Grimm, D., ‘ The Democratic Costs of Constitutionalization: The European Case’, (2015) 21 European Law Journal, 460– 473
[20] Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 14, 2014, Case No. 2 BvR 2728/13,
[21] Goldoni M, ‘Politicizing EU Lawmaking? The Spitzenkandidaten Experiment As A Cautionary Tale’ (2016) 22 European Law Journal
[22] Sprungk C, ‘A New Type Of Representative Democracy? Reconsidering the Role Of National Parliaments In The European Union’ (2013) 35 Journal of European Integration
[23] Richard Bellamy and Dario Castiglione, ‘Three Models of Democracy, Political Community and Representation in the EU’ (2013) Journal of European Public Policy, 206 -223.
[24] Ibid
[25] Dawson & De Witte, ‘From Balance to Conflict: A New Constitution for Europe (2016) ELJ 204.
[26] Ibid
[27] Ibid
