Sinceits’ founding, the aims of the European Union (EU) have shifted from being purelyeconomic and trade elements to a political Union building on teleologicalapproach. As a result of this shift in approach institutions have developed andthus remains, the current structure of the European Union. However, challengeshave subsequently arisen including the distribution of competencies, howtransparent the European Union actually is, and the Democratic legitimacy ofthe Institution.
I will be addressing the democratic legitimacy of the EuropeanUnion and how the elements of power, accountability and transparency are vitalin establishing a more democratic European union. Democracy is a multifarious concept, which afair amount of political frameworks includes. Bullock and Stallybrass define democracyas “the rule of the demos, the citizen body, the right of all to decide whatare matters of general concern” 1. This definitiondoes raise questions for example, ‘what’ is of general concern to the public andhow is the concept implemented into the European Union? The two main types of democracy I willconsider are direct democracy and representative democracy. Within a direct democracy citizens propose, decide, andchange Constitutional laws; initiate referendums; and choose and remove publicofficials who are not effectively doing their jobs. In contrast, arepresentative democracy is when citizens elect or choose a government officialto represent them. Legitimacy is defined in the Oxford English Dictionary as ‘conformity to the law or to rules’,whereas from a political standpoint Legitimacy is defined as ‘the acceptance ofan authority which is usually a governing law or system of government.
‘2A varietyof treaties created the change in Europe. The ‘Treaties of the European Union’ are a set of international agreementssetting out the European Union’s constitutional basis that is shared betweenmember states in the European Union. These treaties becameresponsible for establishing the various institutions we currently recognise aspart of the EU, along with their remit, procedures and objectives. Thesetreaties presently govern the EU and its’ members can only act within the rulesgranted to them within these treaties. If an amendment were to be made to thetreaties, it would require ratification from all existing member states. Todate there have been twelve major European Treaties, I will be focusing on theParis, Maastricht, Amsterdam, Nice and Lisbon Treaties.
Arepresentative institution of the European Union is the European Parliament(EP). Since its formation in 1979 when it was seen as a mere chamber thatconsulted in secondary legislation3 the EP has evolved greatly3. These changes, shaped bydevelopments in the European Community and later the European Union, havecaused much discussion as to whether the institution has become more democraticsince it formed4.The European Parliament is currently the only institution within the EU that isdirectly elected by its EU citizens and so, it can therefore be argued that itis the most democratic; however, out of the three institutions, it is said tobe the one that holds the least power. When the EP was formed the belief heldat the time was that the directly elected assembly would be more democratic andtherefore, more legitimate in the eyes of the people of the EU.
The fact thatthis only directly elected EU institution holds the least power supports theview that the EU is lacking in democracy. Consequently, having identified this weakness member states opted togive the EP more legislative power through a set of treaties subsequentlychanging its roles and responsibilities. One of thekey changes appeared in the Maastricht Treaty. It introduced co-decision and gave the European Parliament an ultimateright to veto a legislative proposal by an absolute majority after two readingsof the Council and European Parliament. The democratic deficit was starting to be addressed with a change to theEP’s status as the primary procedure for legislative developments. Introduced in the Treaty of Lisbon, accordingto the later article289 of the Treaty on the Functioning of the European Union (TFEU)5,co-decision has become the ‘ordinary legislative procedure’, consisting of thejoint adoption by the European Parliament and the Council of a regulation,directive or decision on a proposal from the Commission. The procedure ofco-decision is defined in article 294 TFEU6.
While co-decision was initially introduced to allow EU decision-making to bemore inclusive, accountable and transparent, the procedure has, for theelectorate and rank-and-file parliamentarians, increased informalisation andseclusion. Notwithstandingthese changes, the European Parliament remained relatively weak compared withthe Council and Commission and subsequently turnout for European Parliamentelections has been consistently low. This argument supports allegations thatthe directly elected and more powerful European Parliament does not remedy theEU’s democratic deficit at all. Despite severalreforms, the European parliament does not inspire voters7. Election turnout, a keyway to measure political engagement, was increasingly low with only one thirdof British citizens voting in 2014. The low turnout is largely thought of as a gaugeof political disconnection. The OECD states: “High voter turnout is desirablein a democracy because it increases the chance that the political systemreflects the will of a large number of individuals, and that the governmentenjoys a high degree of legitimacy”8.
Therefore, if voterturnout is low the European Parliament, although elected, rules on a very smallmandate and thus questions their democratic legitimacy.9 Questionably,if the most democratically elected chamber has questions about their democraticlegitimacy then how do the other institutions fare? The second of the threemajor institutions is the European Commission (EC). The Commission is currently composed of one memberfrom each Member State and has a number of executive functions includingmanaging the EU budget, enforcing competition law and policing Member Stateimplementation of EU laws. In accordance with its mandate of maintaining anopen, transparent and regular dialogue with representative associations andcivil society, it is required to carry out broad consultations with partiesconcerned in order to ensure that the Union’s actions are coherent andtransparent 10.A major institutional change brought in by the Treaty of Lisbon11is the parliamentarianisation of the supranational governance of the Union andthe politicisation of the Commission as main holder of executive power. It is adirect consequence derived from, or rather a requirement imposed by, the depillarisationprocess. In the pre-Lisbon era thesupranational method had been designed for policies bringing positive or verypositive outcomes in the short term. Inthe exercise of the new competences conferred upon the Union it needed toprovide a basis for a political decision-making system able to addresscircumstances where short-term individual costs for some or all Member States mustbe balanced with mid to long term collective benefits for the entire Union.
Nevertheless,significant limitations remain both in the parliamentarianisation of the Union,the politicisation of the Commission and its’ executive role. In initiating legislation, it is believed thatthe European Commission is democratically illegitimate, criticism that has, in turn, beencriticised by using comparisons to the situation in some national governments. Insuch situations few members’ bills are ever debated and “fewer than 15%are ever successfully adopted in any form”, and where proposals”generally pass without substantial or substantive amendments from thelegislature”.12To help counteract this anew citizen’s initiative scheme (E.C.I.
) was created and subsequently the commissionis now obliged to consider any proposal signed by at least one million citizensfrom a number of member states. This initiative introduces a new form of publicparticipation in E.U. politics by enabling the public to call on the EuropeanUnion to create new legislation. Ground rules and the procedures to be followedare laid down by an E.U. regulation, which is currently being formulated.
Aswell as the relevant number of signatories the policy area must relate to onein which the E.U. has the power to act upon in the first instance. In 2006,in order to try and set further restriction on the power of the commission the Second Comitology Decision came in to effect. Therevised Decision introduced a new regulatory procedure (‘regulatory procedurewith scrutiny’) in which both the EP and the Council have the ability to blockthe adoption of proposals that emerge from committees. Significantly as a result of this reform, theCommission and the Council have been more willing to rely on extensivedelegation as a means to circumvent the influence of the EP on the regulation process.This democratic control of the EP over the comitology process has beenimplemented with the adoption of the Lisbon Treaty13,which distinguishes between two kinds of non-legislative acts; delegated actsand implementing acts. Delegated acts stated that the Article 202 of the LisbonTreaty14replaces “comitology” with “delegated acts”.
The EP plays a role in the monitoringand control of delegated powers to the Commission when the latter adoptsnon-legislative acts of general application to supplement or amend certainnon-essential elements of the legislative act15. The EP, together with the Council, retains the option of objecting to orrevoking the delegation. Article 11.7 of the TEU established that thenomination and appointment of the President of the European Commission isperformed by the EP inan attempt to strengthen democratic legitimacy.
With theconsecutive reforms of the Treaties, the Council of the European Union has passedfrom being the only decision maker to sharing its legislative powers with the EuropeanParliament. Resultantly, its status has been limited to the representation ofthe Member States’ interests in the European co-decision procedure. The Councilof the European is one of the three legislative bodies in the EU, along withthe European Commission and the European Parliament.
The Council of theEuropean Union has a number roles within the EU, and these include but are notlimited to, passing EU laws, facilitatingagreement between EUjudiciary and member states, organisingeconomic policies ofmember states, approving the wider EU budget, form and signagreements with non-EU states, anddeveloping foreign and defence policy.The TEU states that Council meets in public when deliberating and voting on adraft legislative act16 in order toimprove public debate and to keepthe public better informed about the progress or merits of a particularlegislative draft. This should also beseen in the light of all the previous improvements and efforts that the Councilmade to increase its transparency and openness in Regulation 1049/2001regarding public access to EP, Council and Commission documents, and in thelight of the Council’s Rules of Procedure, adopted on 1 December 2009.Nevertheless, the most important reform with respect to the Council was the newmethod (1 November 2014) for calculating Qualified Majority Voting (QMV) whenthe Council ‘votes’ according to that decision rule. QMV is governed by article16 TEU17 and article 238 TFEU18 (and article 235.
1 TFEU for the European Council).The new system makes the allocation of votes more proportional to thepopulation of the Member States, reflecting an image of the Council as being aunion of both states and citizens. When the Council votes by QMV, each MemberState is given an appropriate number of votes according to its population. Thiscan be seen as improving the democratic representativeness of votes and of Decision-making.TheEuropean Council brings together EU leaders to set the EU’s political agenda.It represents the highest level of political cooperation between EUcountries. The Council, one of the EU’s seven official institutions,appropriates quarterly summit meetings between EU leaders, chaired by apermanent president.
Article18.1 TEU19integrates the European Council within the EU institutional structures andrecognises the democratic accountability of its members in article 10.220:”Member States are represented in the European Council by their Heads of Stateor Government and in the Council by their governments, themselvesdemocratically accountable either to their national Parliaments, or to theircitizens.” In most instances decisions are made by consensus, so every memberhas the ability to block a measure that would be unacceptable to his or hercountry. To further provide legitimacy and democracy the QMV reform is appliedto the European Council just as it was applied to the EP, this is explained inArticle 235.
1 TFEU21.The European Court of Justice isthe final institution which has a major issue with legitimacy due to the lackof an electoral mandate. Members of the EJC are appointed by the member states withno election happening which leads to two issues: it allows unelected bodies todetermine and distribute values for their citizens creating illegitimacy and itis a clear example of how the court is not an independent body of the EU. Huntingtoncautioned, “Legitimacy is a mushy concept that political analysts do well toavoid” 22. In democratic regimes, elections theoretically bestow legitimacy on thoseexercising political authority. Aslegitimacy declines within regimes and governing coalitions disintegrate,elections allow them to renew and revitalize themselves.23TheEuropean Court of Justice has the responsibility to ensure that the law isobserved and to interpret and apply the Treaties of the European Union.
Thesetreaties established the constitutional basis of the various institutions andEuropean Union as a whole. It is the highest court in the EU with regard toUnion law, (but not national law), and is tasked with interpreting EU law andensuring equal application to all member states. Article 13(2) of the TEU 24 states that the ECJ shallact within the limits of the powers conferred on it in the Treaties, and inconformity with the procedures, conditions and objectives set out in them. Theinstitutions shall practice mutual sincere cooperation. The ECJhas received tremendous scrutiny over growths in jurisdiction? specifically it hasbeen increasingly questioned by EU member states of overstepping its power bytaking on more and more cases and extending competence.
This expansion placestoo much authority in the hands of the judges. This extension of cooperationoffers a good example of how the ECJ shies away from the traditional Courtapproach of acting as an independent, and final arbitrator. 1 Alan Bullock and Oliver Stallybrass, The Fontana DictionaryOf Modern Thought (Fontana Press 1977).2 Robert Alan Dahl, Polyarchy: Participation And Opposition(Yale Univ Press 1971).3 Amie Kreppel, Neccessary But Not Sufficient: UnderstandingThe Impact Of Treaty Reform On The Internal Development Of The EuropeanParliament (JEPP 2003).4 ‘Elected, But How Democratic?’ (The Economist, 2017)