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Does the European Union have an Institutional Problem with Democratic Deficiency

J
James Peters

This document provides a 4,700 word analysis of whether the European Union suffers from a democratic deficiency. It begins by defining democratic deficiency as a lack of transparency in policymaking and an inability for citizens to reject policies. It then examines the European Parliament, Council of the European Union, Commission, European Council, and European Court of Justice based on four criteria: direct democratic election, accountability, adherence to the subsidiarity principle, and alternative accountability mechanisms. While some institutions are not directly elected, the document finds they are still accountable through elections and ability to censure poor performance. Overall, it argues the EU does not have a greater democratic deficit than nation states and policies unpopular with citizens are often supported by their own national governments.

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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 NATOs 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 worlds 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 Associations 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 doesnt 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 Unions policy making process, the EUs 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 States 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 didnt 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 (Sch端tze, 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 Unions citizens. These two provisions thus qualify the European Parliament as an indisputably directly democratically elected European institution. 11 (Sch端tze, 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 (Sh端tze, 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 (Sch端tze, 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 Unions 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 presidents 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 (Sch端tze, 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 (Sch端tze 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 dont 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 its 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 (Sch端tze, 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 Unions 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 (Sch端tze Consitutional Law, 2012, p. 3)
Peters 14 Bibliography Democratic Deficit Glossary of Summaries - EUR-Lex [Online]. Available from: http://eur- lex.europa.eu/summary/glossary/democratic_deficit.html [Accessed 1/15/2016]. EUROPA - Council of the EU - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/council-eu/index_en.htm [Accessed 1/15/2016]. EUROPA - Court of Justice (CJEU) - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm [Accessed 1/15/2016]. EUROPA - European Commission - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-commission/index_en.htm [Accessed 1/15/2016]. EUROPA - European Council - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-council/index_en.htm [Accessed 1/15/2016]. EUROPA - European Parliament - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-parliament/index_en.htm [Accessed 1/15/2016]. EUROPEAN UNION: The French & Dutch Referendums - Council on Foreign Relations [Online]. Available from: http://www.cfr.org/france/european-union-french-dutch- referendums/p8148 [Accessed 1/15/2016]. NATO - Opinion: After-Dinner Speech by Admiral Giampaolo Di Paola, Chairman of the Military Committee, Honouring SHAPE Officers Associations 50th Annual Symposium in Mons, 16-Oct.-2010 [Online]. Available from: http://www.nato.int/cps/en/natohq/opinions_69910.htm?selectedLocale=en [Accessed 1/15/2016]. Baldwin, R. and Wyplosz, C. (2012). The Economics of European Integration. 4th edn. Berkshire, UK: Mcgraw Hill. Bentolila, S. and Bertola, G. (1990). Firing Costs and Labour Demand: How Bad is Eurosclerosis?. The Review of Economic Studies [Online], 57(3), 381-402. Available from: http://www.jstor.org/stable/2298020. Moravcsik, A. (2008). The myth of Europes democratic deficit. Intereconomics [Online], 43(6), 331-340.
Peters 15 Sch端tze, R. (2012). European Constitutional Law. Cambridge: Cambridge University Press.

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Does the European Union have an Institutional Problem with Democratic Deficiency

  • 1. Does the European Union have an Institutional Problem with Democratic Deficiency University of Kent 1/15/2016 James Peters Word count: 4,700
  • 2. 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
  • 3. 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 NATOs 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 worlds 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 Associations 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)
  • 4. Peters 3 democratic deficit to measure the actual depth of the problem. I expect to show that the EU doesnt 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 Unions policy making process, the EUs 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 States 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 didnt 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 (Sch端tze, 2012, p. 42) 9 (Baldwin and Wyplosz, 2012, p. 111) 10 (Moravcsik, 2008, p. 332-333)
  • 5. 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 Unions citizens. These two provisions thus qualify the European Parliament as an indisputably directly democratically elected European institution. 11 (Sch端tze, 2012, p. 44 12 ( EUROPA - European Parliament - the EU Institutions Explained)
  • 6. 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 (Sh端tze, 2012, p. 14-5)
  • 7. 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 (Sch端tze, 2012, p.19) 15 ( EUROPA - Council of the EU - the EU Institutions Explained) 16 ibid
  • 8. 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
  • 9. 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 Unions 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 presidents 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 (Sch端tze, 2012, p. 26) 18 ( EUROPA - European Commission - the EU Institutions Explained)
  • 10. 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 (Sch端tze European Constitutional Law, 2012, p. 103)
  • 11. 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 dont 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?
  • 12. 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 its 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 (Sch端tze, 2012, p. 32) 22 ( EUROPA - Court of Justice (CJEU) - the EU Institutions Explained)
  • 13. 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 Unions 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)
  • 14. 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 (Sch端tze Consitutional Law, 2012, p. 3)
  • 15. Peters 14 Bibliography Democratic Deficit Glossary of Summaries - EUR-Lex [Online]. Available from: http://eur- lex.europa.eu/summary/glossary/democratic_deficit.html [Accessed 1/15/2016]. EUROPA - Council of the EU - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/council-eu/index_en.htm [Accessed 1/15/2016]. EUROPA - Court of Justice (CJEU) - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm [Accessed 1/15/2016]. EUROPA - European Commission - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-commission/index_en.htm [Accessed 1/15/2016]. EUROPA - European Council - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-council/index_en.htm [Accessed 1/15/2016]. EUROPA - European Parliament - the EU Institutions Explained [Online]. Available from: http://europa.eu/about-eu/institutions-bodies/european-parliament/index_en.htm [Accessed 1/15/2016]. EUROPEAN UNION: The French & Dutch Referendums - Council on Foreign Relations [Online]. Available from: http://www.cfr.org/france/european-union-french-dutch- referendums/p8148 [Accessed 1/15/2016]. NATO - Opinion: After-Dinner Speech by Admiral Giampaolo Di Paola, Chairman of the Military Committee, Honouring SHAPE Officers Associations 50th Annual Symposium in Mons, 16-Oct.-2010 [Online]. Available from: http://www.nato.int/cps/en/natohq/opinions_69910.htm?selectedLocale=en [Accessed 1/15/2016]. Baldwin, R. and Wyplosz, C. (2012). The Economics of European Integration. 4th edn. Berkshire, UK: Mcgraw Hill. Bentolila, S. and Bertola, G. (1990). Firing Costs and Labour Demand: How Bad is Eurosclerosis?. The Review of Economic Studies [Online], 57(3), 381-402. Available from: http://www.jstor.org/stable/2298020. Moravcsik, A. (2008). The myth of Europes democratic deficit. Intereconomics [Online], 43(6), 331-340.
  • 16. Peters 15 Sch端tze, R. (2012). European Constitutional Law. Cambridge: Cambridge University Press.