(Photo: EU exposed, CCL)
BY MATHIEU LOHR AND JACK SEATON
The British public are amongst the worst informed about the EU. Given that Brexit was framed as a means of regaining (parliamentary) sovereignty from an undemocratic supranational body; is the EU a bureaucratic monstrosity seeking to consume the free nations of Europe?
To an extent, it is; the EU is a body that, whilst holding an impressive level of democracy for a non-state actor, does not compare easily to its member states’ domestic arrangements for direct democracy and related legislation drafting powers. But this does not mean the EU is anti-democratic. On the contrary, it offers member states plenty of opportunity to get involved in the legislative process and every chance to block legislation. The EU is thus representative and accountable, but often questionably democratic as an institution with regard to safeguards on its own authority, even in comparison to its member states. So the question becomes: just how democratic is the EU and its institutions, and who gets a say?
Who’s in charge?
The underlying structure of the European Union has developed to include a high level of democratisation, as well as tight adherence to the principle of subsidiarity. The principle simply states that the EU should not be delegated any powers that would be better executed at the local (national) level. Moreover, treaties must be agreed by the democratic governments of all member states, and the Commission (the principal executive body of the EU) must now be approved by the directly elected European Parliament (EP) alongside the powers of the European Council which is sourced from national governments.
Particularly with regard to the Parliament, great progress has been made in establishing first elections in the 1979 and then with the provision of more powers over the executive body: the commission. In short: both governments and directly elected Members of the European Parliament (MEPs) check the European Commission. With the resignation of the Santer Commission in 1999 under pressure from the EP, the Parliament was firmly cemented as a key player in the European system both in terms of passing legislation and censuring the executive. This provides it with similar powers to many of the national parliaments of its member states, though its absence of a direct right to initiate legislation continues to be a point of contention.
Yet, this is one example about how creative EU politics are: as the EP has the right to veto international trade-deals and legislative proposals, it has repeatedly threatened to do so unless it can sit on the negotiation table (f.ex. with CETA, TTIP), and sees the EC consult with it prior to legislation being proposed. Whilst the back-room dealings have a questionable effect on actual parliamentary debate over proposed initiatives, the EP has successfully created a check on the EC.
In principle, the European Union is therefore a democratic entity with a large number of checks and balances on its powers, something that some member states actually lack. It has clear divisions between executive, legislature and judiciary. In particular, the latter body – the European Court of Justice (ECJ) – deserves merit as rulings require consensus and the selection system for judges encourages a high level of scrutiny. Some member states do not have the same freedoms: Hungary passed a new constitution in 2011 removing controls on government power, undermining judicial independence and allowing its government to take control of state apparatus so that while it might occasionally lose an election, it would never lose power. More recently, the current Polish government followed in the step of Hungary and showed how brittle judicial independence can be in the face of a party controlling all electable bodies of the state; no coalition of MS could do this to the ECJ.
Citizens and political parties
But legitimate input also relies not just on having elected institutions but also invested electors. The European Union possesses the first part in the form of the parliament, but is consistently considered to lack the sort of demos (voter base) that national governments claim legitimacy from. In repeated Eurobarometer surveys, from around 90% of respondents stated that they were national citizens before European ones, whilst around 40% reject the concept of being European altogether. In the absence of a European demos it is impossible to produce a parliament representative of Europe rather than member states. This is compromising the legitimacy of its parliamentary groups, made up of varying and often conflicting parties. Such groups are often formed for the convenience of extra funds and speaking time rather than any interest in providing a pan-European policy stance. These groups and the national parties that constitute them also often lack serious policy options due to their inability to draft legislation directly. Though Caramani notes that there is a general left-right divide that is recognised in all member states that “today permeates the EU party system”, there continues to be no serious consensus on policy within party groups. This, combined with the lack of actual Pan-European parties, makes it difficult to provide the parliament with a truly European mandate for action.
Still, short of pan-European parties, a project that is nonetheless sought to be realised eventually, the EU has pushed for European Citizenship Initiatives (ECI) to further input-legitimacy. Whenever 1 million citizens spread over at least 7 EU MS sign up to such an initiative, the European Commission has to respond to it, and potentially initiate legislation over areas it has competence over. Yet here again, we face an impasse: for once, no initiative has been successful since 2012, and the EC never initiated legislation. Civil society actors lament that the resources needed for creating successful initiatives are prohibitively high, and that the EC has not been too receptive of ECIs. This is further problematised by the EC’s rather negative response to reform pressure from the EP and other actors.
On another front, the EU is often criticised for having unelected institutions in the Council and the Commission. This is certainly an issue for democratic freedoms, especially in the ability to draft legislation. Conversely, the EU is not the only system to have unelected bodies with substantial powers over legislation. A comparison can be made to the House of Lords in the UK legislature. Arguments made in favour of the Lords are that life peers are experts in their field and that it provides a limited check against the powers of temporary majorities in the commons. The Lords clearly serves a purpose in the checks and balances system of the UK, but it also holds comparable power and scrutiny duties to those of the European Council system. It also holds the power to legislate, though government legislation is introduced through the commons. But the important distinction between the UK and EU systems is that the Commons holds far greater power and legislative authority, particularly as most UK executive members come straight from that body, rather than the unelected Lords. Again, the crisis of democracy in Europe comes from a lack of legislative authority in the democratic body of the parliament, which is the only body with direct elections and thus the holder of the strongest input legitimacy.
It is important to recognise that the differing nature of the Council, Commission and Parliament do though offer perhaps a more cooperative model than exists in some national governments. Unlike governments in states such as Poland, Hungary and the UK which are controlled by single parties under what amounts to a winner-takes-all system, the European Union provides a complementary, rather than competitive system of democracy that gives all major actors a say. With the EP offering direct democracy, the Council supplying a voice to the governments of member states and the Commission sworn to represent all Europeans independent of their national allegiances the EU creates an impressively representative system with an independent judiciary, whilst national courts in member states like Romania and Hungary have been compromised by political manoeuvring. Müller and Newman also note that direct democracy is not necessarily crucial so long as the national parliaments of member states provide their consent to the actions of the EU. National governments, whether through MEPs, Council representatives, Commission nominees or even ECJ judges almost always hold some say in the decision making processes of the EU. Considering the range of EU competencies, this is an impressive level of participation from member states who themselves hold democratic mandates. The projection of these mandates is essential to providing non-elected institutions with the legitimacy they require. This does though limit the degree to which EU institutions can be compared to their domestic counterparts as these counterparts are an essential part of the EU system.
The many faces of legitimacy
Moravcsik makes an alternative argument for the legitimacy of the EU along these same lines. He suggests that due to treaty restrictions and targeted delegation of power to the European level “much is thereby excluded from the EU policy agenda”, and the EU is better understood as a purely “regulatory state”. The EU should not be held to the same level of democratic accountability as member states due to the fact that it has no remit over many of the policy areas that captivate the public. In fact, the EU has mostly a standardisation role on issues such as trade and consumer policy. These hardly compare to the taxation, fiscal and foreign policy powers of the modern state; as such they should not necessitate the same level of oversight. This is contested by Hix and Follesdal, who criticise the Moravcsik on the grounds that the EU’s regulation policies hold redistributive character, making its decision making highly political, and thus necessary to be scrutinised by citizens.
Nevertheless, whilst we can debate input legitimacy, throughput and output legitimacy can matter just as much: highly technical issues of low-salience to the public (such as tariff-barriers and harmonisation regluation) are not much scrutinised on a national level either. The throughput and output matters disproportionately more in these matters. Moreover, MS retain control over high-salience issues such as education, bringing home once more the point that the EU is little more than a regulatory body in practice.
Furthermore, the way in which the EU has demanded strong human rights in exchange for membership reinforces its position as a democratic body itself. By ensuring a minimum level of democracy at the national level, the EU ensures that any input through treaty change and the Council system has a strong degree of democratic authority behind it. As the EU cannot grant itself new powers, the only way in which it can obtain them is by treaty changes made by consensus of the democratic governments of the 28 member states.
At this point, it should be obvious that the EU is a complex body that resembles neither a truly federal state-structure, nor does it compare all too well with its more traditional member-state structures. Is it a bureaucratic monster? Most definitely, even if at different times it proves to be a highly functional and effective one, whilst at others it breaks down spectacularly, as the recent CETA veto by Wallonia shows. Nonetheless, the European Union does, with regard to its responsibilities and powers, hold a substantial democratic mandate through the multitude of institutions offering opportunities for input by national governments, electorates, and experts. It does not, however, hold the same level of democratic input as its member states individual systems. Though in some areas such as the judicial system it maintains an impressive level of legitimacy, the lack of legislation drafting powers for the directly elected parliament places the onus of decision making firmly in the laps of technocratic bodies such as the Commission and Council networks. Even though these bodies have some degree of elective representation, the bureaucratic nature of their support systems undermines their legitimacy compared to the more open parliamentary and presidential systems that the EU demands of its member states.
Reform-demands for a more democratic EU have been met in both satisfactory and unsatisfactory manner by its institutions and the MS that delegate powers to it, and by so exemplifying the difficulty that is finding consensus between 28 (soon 27) countries. The lack of a true European demos and declining voter-participation in EP elections can however not be attributed to the EU’s supranational institutions’ lack of initiatives to strive for creating a European identity or greater transparency. Eurobarometer surveys show 90% of citizens of the EU know they can be both a citizen of their country and the Union, but what does that mean in an age of growing populism? Disdain for the EU, and Brexit specifically, is one of many national manifestations of politicians deflecting all forms of blame onto an ‘outside’ supranational body whilst putting down successes onto their own national policies. Alongside this, we see a further compartmentalisation of voters into echo-chambers through partisan media, and the failing of even supposedly non-partisan media such as the BBC; where can critical discussion still happen that would allow for an informed electorate to self-determine its future? This is an ever more pressing question in an age of increasing national constraints through globalisation and the regional blocks it creates: are the nations of Europe, and its citizens by extension, more or less independent and freer by sheltering behind an imperfect Union, rather than outside of it?
Ultimately, ‘Brussels’ is not an outside supranational manifestation, but a set of institutions we created out of necessity and shared interest for greater prosperity and peace. If it does not meet those criteria, then coming together to find reforms or new ways to achieve peace and prosperity in Europe seems like a more fruitful approach that breaking apart, no matter what questions over bureaucracy and democratic legitimacy have to be weathered along the way.