EU construction
Albert Weale and Mich Nentwich ”Political theory and the EU”
Ch.1 Legitimacy and the
European Union.
Following Beetham´s
analysis of political legitimacy as a multi-dimensional concept, comprising different
elements of legality, normative justifiability and legitimation. Political
power is legitimate to he extent that:
It is acquired and exercised
according to the established rules (legality); and
The rules are justifiable
according to socially accepted beliefs about (1) the rightful source of
authority and (2) the proper ends and standards of government (normative
justifiability); and
positions of authority are
confirmed by the express consent or affirmation on the part of appropriate
subordinated, and by recognition from other legitimate authorities
(legitimation).
Leaving aside for the present the
form of legality characteristic of liberal democracy (constitutional rule of
law) in order to concentrate on the key dimension of normative justifiability,
we can identify its distinctive source of authority in the principle of popular
sovereignty, and its acknowledged ends of government to be the protection of
basic rights (freedom, security, welfare, albeit in variable or contestable
order). Each of these legitimising criteria is complex, though in different
ways. From the principle of popular sovereignty derives the electoral
authorisation of government, and the criteria of representation,
accountability, and, so forth, that comprise the manifestly democratic aspects
of legitimacy.
Legitimation is a feature of all
political orders. Legitimacy of a liberal democratic system depends on three
criteria: an agreed definition of the people or political nation as defining
the rightful bounds of the polity; the appointment of public officials
according to accepted criteria of popular authorisation, representativeness and
accountability; and the maintenance by government of defensible standards of
rights protection, or its routine removal in the event of failure. Of course
the particular form these criteria take in any given country will depend upon
its distinctive tradition and historical evolution, including the survival of
pre-democratic modes of legitimation.
Legitimacy in the European Union
legitimacy as the EU enjoys must be quite different from that of these states
which compose it, and more akin to that of other international authorities,
whose membership comprises states rather than individual citizens. This is a
legitimacy constructed on the one hand at the level of legality- superior
jurisdiction to which national legal systems are subordinate- and on the other
at the level of legitimation- the public recognition and affirmation by
established legitimate authorities- rather than at the level of normative
justifiability.
This is because the EU does not
need them for its effective operation. Its addresses are primarily member
states and their own legal authorities; and it no more requires obedience and
cooperation from ordinary citizens than do NATO, the WTO or the UN itself.
First, viewed as a regulatory
regime, EU law impacts directly on citizens, as producers, employees,
consumers, etc., and requires their acknowledgement of it as binding on them,
and therefore their recognition of the EU as a rightful source of valid law.
This is evident, for example, across the range of quota policy- the
preservation of fish stocks, the reduction of agricultural surpluses, the
rundown of rust- belt industries- where decisions jeopardise the livelihood of
individuals directly and have significant distributional consequences. The
tendency of national governments to offload the odium for such decisions very
publicly onto the EU only makes the issue of its legitimacy more, not less,
salient.
Second, from a dynamic point of
view, the development of the EU historically has exposed the inadequacy of a
legitimacy confined to elite consensus. The debates over Maastricht
demonstrated the vulnerability of the EU to popular countermobilisation, and
the necessity to secure not to only public support for the expansion of its
powers, but also a more direct legitimacy for the institutions that were to
exercise them. Whatever disadvantages greater transparency and accountability
may bring for the distinctive modes of EU decision making, it is now commonly
accepted that the further extension of jurisdiction needs to be balanced by a
larger electoral and parliamentary role. Those who are opposed to be balanced
by a larger electoral and parliamentary role. Those who are opposed to the former
will also oppose the latter. The issues of the EU´s legitimacy and the
extension of its powers are thus intimately connected.
A final reason for treating the
legitimacy of EU institutions seriously is the impact it has on the legitimacy
of the member states themselves. The later can no longer be regarded as
independent of the former. Just as it was the acknowledged deficiency of
individual nation-states in market regulation and economic performance that led
to the surrender of powers of the European level, so the latter´s
performance affects the standing of national governments for good or ill. So
too, the inadequacy of parliamentary…
Ch.3 Democracy, legitimacy
and majority rule in the European Union.
…democracy is said to be missing
in the EU…
Institutions, as all other rules
that regulate behaviour, should be legitimate in several senses. We are only
morally obligated to obey normatively legitimate institutions. That is, they
must be justifiable to the `demos`, to all affected parties. Normative
legitimacy requires a presentation and justification of such principles of
legitimacy for the EU, as well as transparency of its institutions. Only then
can the public assess whether principles of legitimacy are satisfied. At
present, we have neither such a theory of justice, nor the requisite
transparency. These flaws are in part due to the lack of constitutional
dimensions to the institutions of the EU. There is no explicit presentation and
systematic defence of the de facto constitutive rules, rules of mechanisms, and
purposes of the EU.
The Amsterdam Treaty takes steps
in this direction by requiring timely information to national parliaments, and
allowing them six weeks for debates before legislative proposals are placed on
the Council agenda. More drastic suggestions, not adopted, included a European
constitution explicitly established and recognised as such, and procedures for
holding Council members accountable for their votes.
Democracy as a majority rule.
Democracy is also used to
describe the decision procedures of institutions whereby the preference of the
majority of the electorate determine the result. The democratic deficit of the
EU sometimes refers to this notion of democracy. There is as gap between the
powers transferred to the Community level and the control of the elected
Parliament over them, a gap filled by national civil servants operating as
European experts or as members of regulation and management committees, and to
some extent by organised lobbies, mainly representing business.
Parliament, moving towards a
system of bicameral parliamentary democracy, possibly leading to co-decision
with the council as the standard procedure Furthermore, the Treaty increases
the use of qualified majority voting among the government representatives in
the Council of Ministers. These changes highlight some of the central topics of
a normative political theory for the EU: the legitimate significance of states;
the proper scope and application of the principle of subsidiarity; and the
content of `vital national interests` or important ad stated reasons of
national policy` which protect a domain of domestic sovereignty from outside
intervention, originating with the 1966 Luxembourg compromise and re-emerging
in the Amsterdam Treaty.
These two senses of democracy are
related in several interesting ways. The lack of specific majoritarian decision
procedures can be lamented only from the perspective of a sound political
theory of legitimacy. Only then we can understand why such majority rule is
appropriate for certain kinds of decision in the first place. Second,
contractualist theories of normative legitimacy appeal to consent by all
affected parties, and are thus reminiscent of democratic elections.
Considerations of possible consent bring out whether the interests of each are
secured well enough by the institutions. Thus, the notion that government must
rest on the consent of the governed has become an article of political faith, a
conviction that much contemporary political philosophy labours to secure`.
(Flathman 1993)
However, the precise relations
and implications between these two senses of democracy- of normative legitimacy
and of majority rule- are contested and obscure. A better account of legitimacy
must draw on a broader theory of justice for Europe. Such a theory may allow us
to understand and judge the case for particular majoritarian mechanisms within
the EU. We need such an account in order to assess the suggestions for
institutional changes mentioned above.
…Another important task is to determine
the effects of the EU on individuals, both within the EU and outside. Much
empirical research on these issues is required. In several ways, the EU seems
to be moving towards the role which nation states enjoyed previously. With the
four freedoms and a European monetary union, the EU has pervasive effects on
individuals’ lives. The impact increases with the decreasing power of
government instruments over legislation and exchange rate policies, which
hitherto served as a shock absorbers between citizens and the surrounding
world. The increased importance of the EU underscores that political control
over its institutions is an important good, and explains why the democratic
deficit, in both senses, is a most pressing issue.
What contractualism is not.
Principles of legitimacy require
actual participation in order to be appropriate, or for the laws to be
experienced as the citizens´ own creation (Brown 1994), the EU would
appear to require a constitutional convention, as in the American case (Jefferson
1789). Contractualism, on the other hand, insists that political participation,
including democratic mechanism, and constitutional conventions must be
justified on the merits of such procedures.
The focus on principles of
legitimacy as conditions which particular institutions must satisfy also sets
this approach apart from accounts which hold that the role of political theory
is to generate blueprints for institutions. The aim of political theory is
narrower: to resolve conflicts among considered judgements and clarify our
views on areas where more determinate answers are needed.
The justification offered by
contractualism is not one of deduction, but rather of acceptability. Often this
is all that is needed for the purpose of identifying some social worlds as out
of bounds, as unjust or immoral. On this view, political theory aspires to put
some constraints on what kinds of world individuals should acquiesce in,
without necessarily pointing to one ideal world. Justification of this kind
underdetermines the set of just institutions. Several institutional
arrangements can b equally unobjectionable, and hence permissible from the
point of view of justice.
Justifying majority
rule
We now turn to consider the case
for majority mechanisms within the institutions of the EU. The following sketch
is brief: the purpose is to indicate, but not exhaust, contractualist arguments
on this issue.
The general case for majoritarian
mechanisms in general is that such mechanisms secure the relevant interests of
affected parties from standard harms to an acceptable extent. Majoritarian
democratic mechanisms are designed to allow all affected parties equal shares
of political control in some sense. The argument for such allocations of
political power is comparative: it must be argued that majoritarian mechanisms
are better suited than alternative allocations of political controls, in that
they ensure the relevant interests for all parties. Such arguments rely on
substantive empirical information about how democratic measures and alternative
procedures are likely to work, including the likely abuses of power they and
alternatives give rise to. Troubling cases include those where there are
permanent minorities, and those where the set of affected parties is contested,
such as when the plight of animals or the environment is at stake.
Two examples of troubling issues
can illustrate contractualist arguments regarding institutional reforms aimed
at increased majority mechanisms.
The contractualist
approach is concerned to assess stable institutions by their effects, both
intended and unintended, on affected parties. We must be attuned to the
incentives created by institutions over time, and how they affect
individuals´ values and perception of themselves and of the community
they live in. Long-term unintended effects of social institutions are
notoriously difficult to predict and hence assess. Nevertheless, institutional
theory may throw some light on these issues. For instance, the case against
voting on representative legislators cannot rest with Rousseau’s scornful
dismissal of voters being free only on the day they vote. Rather, the issue
must be whether such a method is better than the alternatives in terms of
securing the interests at stake, where we consider the incentive effects on
voters and representatives. Another relevant example concerns the centralising
effects of European institutions.
Against mixed models
In mixed models of government one
body enjoys legislative, executive and judicial powers. To be sure, even in
states which split powers the executive and legislative functions are not
always clearly aligned with different bodies. Often the executive not only
executes laws, but initiates legislation and makes policy, while the
legislative often reviews and influences the execution of policy (Vibert 1995).
However, the concern for transparency and avoidance of standard threats caution
against mixed models of government.
In contrast, those approaches
which stress the pervasive need for democratic participation and majority rule
might regard all attempts at separating powers as anti-democratic and hence
illegitimate. The separation of powers puts some aspects of government out of
reach of representatives, and hence of the public.
Systemic effects are
unpredictable at the level of day-to-day decision making. Second, citizens may
reasonably want guarantees against likely threats of abuse. Institutions and
the allocation of power must be tailored with these sources of instability in
mind. To be sure, the representatives and executives must be virtuous, but
citizens may reasonably insist on protection against likely threats- including
the possibility that some will bend the rules inappropriately.
The case for majority
mechanisms in the EU.
What role should majoritarian
mechanisms play at the level of the EU? When decisions are moved to the
European level, we should suspect that majority rule as a means of
accountability and control at the same level secures a better match between the
decisions and those affected. Thus majority procedures are often regarded as an
improvement over the current situation in the EU.
European level and there are
several competing additional suggestions for how to increase majoritarianism in
the European institutions. In the following I indicate how contractualism
approaches these issues.
The commission has multiple
functions: promotion of the common interest, monopoly of legislative
initiative and guardianship of Community law. Even though the commissioners
are regarded as civil servants with loyalty only to the EU and the `European
interest`, they frequently defend national positions in the Commission. There
is then, representation in a weak and direct sense, and the Commission decides
by majority vote.
The appropriate focus for
increased democratic rule should not therefore be the Commission. When the
Treaty of Rome established, member states were regarded as the most likely
sources of inappropriate threats to the regime. However, the EU is developing
from being institutions created for the effective pursuit of private interests,
towards a union with political aspirations guided by a conception of the common
good suitable for states.
Against majority rule?
We now turn to consider some
constraints on the role of majority rule. Contractualism is not of itself
sceptical of anti- majoritarian institutions in the EU. I here sketch arguments
concerning two issues: the legitimacy of constitutional constraints on the
scope of majority rule; and the legitimate role of states´ powers,
possibly overruling a majority of the citizens in Europe.
A constitution with
rights?
Should there be a European
constitution with a bill of rights? Few deny the need for clear `constitutive
rules` which specify the various government bodies and their legal powers. The
lack of a European Constitution in this sense prevents transparency, which all
agree is a minimum condition for legitimacy.
Bellamy argues instead for
unentrenched rights, claiming that individuals are more likely to accept the
legitimacy of decisions they disagree with if they feel that they have been
involved in making them and there are opportunities for reopening the debate in
the future. Democratic politics offers the possibility of a fair compromise for
the resolution of issues which allow for reasonable disagreement. Moreover,
democracy protects rights, by institutionalising procedures and dispersing
power allowing individuals to fight for their rights themselves (Bellamy 1995).
The constitution is
anti-majoritarian. One function of constitutional protections through rights is
precisely to secure certain interests of every citizen- even those of
minorities- against day-to-day majoritarian politics. Some issues are placed
off the political agenda. From the point of view of contractualism, this is
justifiable in so far as some such arrangement is needed to secure the vital
interests of each citizen against standard threats.
Constitutional constraints on
political debate , for instance by a constitutional court, instead serve to
give notice to the public that the political powers now take as extraordinary
course, that or the unintended systemic effects of political decisions now
cross certain important boundaries.
Federalism and state
powers
A central political and
philosophical issue regarding the future of Europe is the legitimate role of
the member states. The reason why small states enjoy disproportionate influence
is of course historical. Unlike the USA, the EU developed and develops from
pre- existing independent, legally equal, de jure sovereign
nation states.
The prior formal sovereignty of
each state translated into formal representation which gives citizens of small
states disproportionate influence, so that, for example, there are many more
members of the EP per thousand citizens for the small states than for the
larger ones and small states are overrepresented for their population size in
the allocation of votes in the Council of Ministers.
A states system would seem
difficult to justify in so far as it entails that individuals in different
states enjoy different life-chances. So while states may be acceptable as a
second-best solution in times of transition, contractualism would seem to
insist that, eventually, all social institutions should have a regional and
eventual global reach. The current status of states in the EU would appear to
be inappropriate, since the interests of their citizens- are unduly favoured.
Member states would continue to
enjoy a variety of powers. From the Amsterdam Treaty it would seem that the
trend is towards a bicameral system of governance where the Council continues
to be one important source of control. Even though the distribution of votes in
the Council varies with population sizes among European states. And in the
Commission every state has one Commissioner, with the largest five states
having two each until future expansion of the EU. In order to reduce the
democratic deficit, by ways of equalising citizens` formal influence, the power
of states and national parliaments should be reduced by reducing the powers of
the Council and possibly of the Commission. Moreover, their votes should
reflect population size more exactly.
A justification of states with
significant powers might be provided within contractualist theory if coalitions
of citizens are allowed in the choice situation, parallel to Locke’s
contractualist argument allowing a property owners´ state. This strategy
may yield communitarian conclusions, but is fraught with great theoretical
difficulties.
To be sure, there are reasons to
move slowly in reducing the powers of existing states, so as to not upset
expectations. As part of political theory of transition from unjust situations,
we could plausibly regard states within the EU as a permissible deviation from
institutions which would be acceptable to all.
The primary normative role of
states may be to serve as a locus of checks and balances within a federation,
confederation or other order with federal features. The most just stable system
of regional institutions may involve a distribution of checks and balances
where states play an important role as a check on centralist tendencies. Thus
one might argue that member states should retain roles regarding constitutional
change to prevent hasty or unwarranted centralisation. This defence is based on
the interest of individuals in controlling institutional and cultural change,
allowing their expectations to be met.
Conclusion: the ends
of Europe
The objectives of the EU are
essential for the development of a normative political theory of Europe. The
principle of subsidiarity brings his out:
The Community shall take action,
in accordance with the principle of subsidiarity, only if and in so far as the
objectives of the proposed action cannot be sufficiently achieved by the member
States and can therefore, by reason of the scale of effects of the proposed
action, be better achieved by the Community.
It must be applied by some
institution, such as a European Court, then parties disagree about the scope of
heir powers. This in turn, however, involves considering the general
centralising tendency of EU institutions, including the European Court of
Justice (Mancini 1991).
The third, and perhaps most fundamental,
issue is that a proper application of the principle of subsidiarity requires us
to be clear on the legitimate significance of states and of the powers of the
European commission is due in part to disagreement on this issue. The
objectives of the EU are hotly contested, and this has an impact on what powers
it should enjoy.
Deliberation about institutional
changes is needed to ensure the efficiency of the European institutions after
enlargement. However, since, in the absence of objectives, talk of efficiency
becomes meaningless, deliberation about institutional change cannot be
separated from the question of objectives. To illustrate: the reflection group
has no qualms about maintaining the powers of the Commission. The Commission is
said to work most effectively when it can mix legislation, enforcement and
bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining
both about and within legal frameworks clearly constitutes an avoidable threat
of abuse of power.
Ch.4 Between representation
and constitutionalism in the European Union
Deliberation about institutional
changes is needed to ensure the efficiency of the European institutions after
enlargement. However since, in the absence of objectives, talk of efficiency
becomes meaningless, deliberation about institutional change cannot be
separated from the question of objectives. To illustrate: the Reflection Group
has no qualms about maintaining the powers of the Commission. The Commission is
said to work most effectively when it can mix legislation, enforcement and
bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining
both about and within legal frameworks clearly constitutes an avoidable threat
of abuse of power.
The risk is even more pronounced
with uncertainty and disagreement about the aims of the EU. This disagreement
makes claims of efficiency controversial if not obfuscating. If EU institutions
focus exclusively on market efficiency, leaving the distributive tasks solely
to member states, the transfer of powers to European institutions might then
leave states unable to fulfill the legitimate claims of citizens.
Alternatively, the EU may have to assist states, by providing regional
transfers aimed at distributive justice among citizens of different. The extent
of any such distributive commitment is contested, and normative theory is
urgently needed. EU documents talk of convergence of living standard and
solidarity, but these terms must be specified: is the aim only to eradicate
dire poverty, or also to go beyond that baseline, towards equal living
conditions for all Europeans? Any such moves transfer formerly internal issues
of domestic policies of states towards centralised institutions, leaving
national governments with less leeway in the field of social policy. Some will
argue that these obligations cannot be adequately secured by emasculated nation
states.
A better understanding of the
legitimate aims of the EU is thus crucial for making headway on the issues of
legitimacy and democratic mechanisms, both practical and philosophical. As long
as the explicit aim of the EU was economic, increased efficiency was easily
interpreted as Pareto-improvements within a utilitarian setting. The task of
the EU was previously predominantly to secure peace and stability through free
markets, leaving matters of distribution and authority aside, in accordance
with standard economic theory. The EU now has much broader political
aspirations. Its objectives, criteria of efficiency, and the role of
majoritarian mechanisms must be reconsidered accordingly. The choice of means
becomes more important as economic benefit is supplemented by other political
goals. Transparency and the rule of law, majority rule, distributive justice,
and human rights all become central issues. They cannot be regarded merely as
ideas to be pursued on a par with economic efficiency, but are conditions of
justice if the EU indeed is to become and appear legitimate.
The EU is a multi-level political
system which is characterized by relations of asymmetry not just between a
suprastatal legal development and the lack of any corresponding democratic
accountability, but between positive and negative integration as well. It is
these two mutually reinforcing asymmetries which are conceptually central here,
and which are featured in the descriptive and explanatory efforts generally
accepted by jurists and political scientists.
For the federalist, symmetry is
to be achieved through a democratisation of the suprastate. The confederalist
is critical as well. But for him/her, balance is to be attained through a
democratisation of the suprastate. The confederalist is critical as well. But
for him/her, balance is to be attained through the renationalisation of
Community law.
But is it possible to justify the
ratification of the Maastricht Treaty with the claim that this treaty-
notwithstanding its obviously suprastatist and asymmetrical features- accords
even so with the principle of a steadfastly constituted democracy, as this
demand is formulated in the Basic Law.
German democracy assumes a
distinctive character on account of its historical background. It is
constituted in perpetuity, and with a strong emotional attachment to the
inviolability of its fundamental provisions. No popular referendums may take
place within its framework. The Basic Law of 1949cannot, moreover, be altered
in respect to its core content.
The accession of the Federal
Republic to the EU must therefore take place in a form permitted by the
applicable articles. It is not possible to solve the problem through political
means- as has been done in other member states- by allowing a referendum to
undermine the central constitutional provisions safeguarding the right of the
people to determine their fate. What was viewed in Denmark and in France as a
political question to be decided by plebiscite was seen in Germany as a problem
of constitutional law, to be decided by the Constitutional Court.
Decisions in the Council of
Ministers can be adopted by majority rule. Furthermore, Community law not only
has direct effect in the member states, but also enjoys priority in the
principle over provisions adopted within each nation. The Union Treaty takes
the fulfillment of these three requirements as a given. At the same time, the
Court states as a condition for its verdict that the provisions of the Basic
law in respect to democratic accountability are guaranteed.
Democratic
accountability
Democracy, if it is not to remain
as merely a formal principle of accountability, is dependent on the existence
of certain pre-legal conditions, such as a continuous free debate between
opposing social forces, interests and ideas, in which political goals become
clarified and change course... and out of which a public opinion emerges which
starts to shape a political will. This also means that the decision- making
processes of the organs exercising sovereign powers and the various political
objectives pursued can be generally perceived and understood, and therefore
that citizens entitled to vote can communicate, in their own language, with the
sovereign authority to which they are subject....
If, as at present, the peoples of
the individual states provide democratic legitimation through their national
parliaments, limits to the extension of the European Communities´
functions and powers are then set by virtue of the democratic principle. Each
of the peoples of the individual states is the starting point for the public
authority relating to that people. The states need sufficiently important
spheres of activity of their own in which the peoples of each can develop and
articulate in a process of political will- formation which it legitimates and
controls, in order to give legal expression to what- relatively homogeneously-
binds the people spiritually, socially and politically together...
The constitutional Court departs
even from such realism when it assumes the demand for the democratic
accountability is satisfied through the merely theoretical possibility of
partial withdrawal form Community law. For the Court cannot adduce any example
of a parliament which has ever dared defy the provisionally established
suprastatal order. On no occasion and in no setting, to the best of my
knowledge, has any national decision been made to close the borders of a member
state to Community law.
Ch.5 Defending the
democratic deficit
The EU is a multi-level political
system which is characterized by relations of asymmetry not just between a
suprastatal legal development and the lack of any corresponding democratic
accountability, but between positive and negative integration as well. It is
these two mutually reinforcing asymmetries which are conceptually central here,
and which are featured in the descriptive and explanatory efforts generally
accepted by jurists and political scientists.
For the federalists, symmetry is
to be achieved through a democratisation of the suprastate. The confederalist
is critical as well. But for him/her, balance is to be attained through the
renationalisation of Community law.
It is possible to justify the
ratification of the Maastricht Treaty with the claim that this treaty-
notwithstanding its obviously suprastatist and asymmetrical features- accords
even so with the principle of a steadfastly constituted democracy, as this
demand is formulated in the Basic Law?
The perpetuity clause
German democracy assumes a
distinctive character on account of its historical background. It is
constituted in perpetuity, and with a strong emotional attachment to the
inviolability of its fundamental provisions. No popular referendums may take
place within its framework. The basic law of 1949 cannot, moreover, be altered
in respect to its core content.
The accession of the federal
Republic to the EU must therefore take place in a form permitted by the
applicable articles. It is not possible to solve the problem through political
means- as has been done in other member states- by allowing a referendum to
undermine the central constitutional provisions safeguarding the right of the
people to determine their fate. What was viewed in Denmark and in France as a
political question to be decided by plebiscite was seen in Germany as a problem
of constitutional law, to be decided by the Constitutional Court.
The very point of Community law
lies in its suprastatal character. Decisions in the Council of Ministers can be
adopted by majority rule. Furthermore, Community law not only has direct effect
in the member states, but also enjoys priority in principle over provisions
adopted within each nation. The Union Treaty takes the fulfilment of these
three requirements as a given. At the same time, the Court states as a
condition for its verdict that the provisions of the Basic Law in respect to
democratic accountability be guaranteed.
Democratic
accountability
Democracy, if it its not to
remain as merely principle of accountability, I dependent on the existence of
certain pre-legal conditions, such as a continuous free debate between opposing
social forces, interests and ideas, in which political goals become clarified
and change course.. and out of which a public opinion emerges which starts to
shape apolitical will. This also means that the decision –making processes of
the organs exercising sovereign powers and the various political objectives
pursued can be generally perceived and understood, and therefore that citizens
entitled to vote can communicate, in their own language, with the sovereign
authority to which they are subject…
If, as at present, the peoples of
the individual state provide democratic legitimation through their national
parliaments, limits to the extension of the European Communities´
functions and powers are then set by virtue of the democratic principle. Each
of the peoples of the individual states is the starting point for the public
authority relating to that people. The states need sufficiently important
spheres of activity of their own in whish the peoples of each can develop and
articulate in a process of political will-formation which it legitimates and
controls, in order to give legal expression to what- relatively homogeneously-
binds the people spiritually , socially, an politically altogether…
Did the Court solve
the problem?
Defending the democratic deficit
means having to reconcile a suprastatal legal and monetary order with a demand
for democratic accountability within a framework composed of democratically
constituted nation states. Has the Court succeeded in squaring the circle, by
thus combining the requirements of marginality and predictability with an
interpretation of the suprastatism of Community law as provisional – in the
sense of being conditional and revocable? My answer to that question is no,
essentially for two reasons. One is philosophical in character and concerns the
manner of reasoning itself. The other is theoretical: even within the form of
reasoning chosen by the Court, it is possible to formulate a decisive
criticism. The Constitutional Court thus cannot be said, in my opinion, to have
solved the problem of the democratic legitimacy of Community law.
According to Article 14.2 of the
ECB charter, the member states pledge so to alter their national laws and
constitution as to prescribe that the head of their central bank be appointed
for a term of five years, and that it only be possible to dismiss him/her
following legal examination by the European Court. The prerogative to initiate
proceedings aimed at such a dismissal shall devolve solely on the ECB Council
(i.e. directing boards and those chairing other countries´ central
banks), or by the bank chair directly concerned, ´on grounds of
infringement of this treaty or of any rule of law relating to its
application´. So, it will not be possible, with an individual chairing a
central bank, to call the mandate into question on the grounds that said
individual lacks the confidence of his/ her principals.
The ECB Council consists of the
heads of fifteen central banks, the irremovability of whom is backed by the
exclusive support of the European Court. To these 15 persons must be added the
six members of the ECB´s directing board, who are appointed by the heads
of state and government for a period of 8 years, and who cannot receive a
renewed mandate. In a fashion comparable with that applying for the heads of
the member states´ own central banks, moreover, it is prescribed that, if
a member of the ECB´s directing board no longer meets the requirements
for performing his/ her tasks, or if the member has been guilty of serious
negligence, the European Court alone shall be able, upon the the request of the
ECB Council, to dismiss that member.
Neither the Commission, then, nor
the Council of Ministers, nor the EP will be able to question the general
judgement of the members of the Bank’s directing board, once its members have
been appointed. The long mandate period is furthermore intended, as is the fact
that members cannot be appointed to another term, to guarantee the independence
of the ECB Council: The members thereof are not to the slightest trace of
democratic accountability on any grounds other than those formulated by the
financial experts themselves, with the juridical support they can obtain in
court with the help of the Treaty provisions.
The idea, in other words, is that
the 21 directors who are assigned the direction of the monetary policy of he EU
are to create an institution of its own. Their joint governance of monetary
policy of the EU are to create an institution o fits own. Their joint
governance of monetary policy is to be independent not merely in theory but
also in practice. This independence is not just to obtain, moreover, in
relation democracy in the member states. The lengthy mandate period, the
ineligibility of the members for renewed service and the fact that said members
can only be dismissed with the support of the European Court together entail a
qualitative increase in the independence enjoyed by the directors of the
Central Bank. It is not just the national democracies here which are removed
from influence on account of the double asymmetry considered above. Above and
beyond this the EU as such- irrespective altogether of the degree of democratic
accountability within each member state- forswears the possibility of weighting
the value of a stable price level against other legitimate objectives.
The modification of the
democratic principle for protecting the confidence in the value of a currency
is acceptable because it takes account of special characteristic- inn the
German legal system, tested and proven, in scientific terms as well- that an independent
central bank is a better guarantor of currency and rely on short-term consent
of political forces. To that extent the placing of monetary policy on an
independent footing within the sovereign jurisdiction of a European Central
Bank, which is not transferable to other political areas, satisfies the
constitutional requirements where under the principle of democracy may be
modified.
In the authors´ view it
cannot be shown that the Constitutional Court has succeeded in solving the
problem of the democratic legitimacy of Community law and of the protected
monetary union.
Ch.7 Legitimacy dilemmas of
supranational governance.
The EC between accountability
and independence.
Normative foundations of
European Integration.
First, European integration is of
independent normative value above and beyond the benefits it provides to
specific states, groups and individuals. Second, integration must be understood
as an open-ended process rather than the emergence of a specific set of
institutions and policies Third, European integration is not only the
expression of, but also the response to, processes of globalisation. Each of
these assumptions has important repercussions for the subsequent discussion of
legitimacy in the EU.
The first of these points, the
independent value of European integration, is perhaps the most contentious. Yet
looking at the origins and early history of the European Community it is
evident that West European integration was, for a significant period of time,
regarded as something more than merely a maximisation of national interests.
The idea of European integration was one of the superseding competition and
conflict between member states by replacing the state system with a
qualitatively different system. Many saw this as a federal project, but as this
proved to be far reaching, recourse was made to functional integration.
Subsequently, the normative aspect of the European idea- indeed the European
ideal itself-was largely lost from view as the emphasis was on functional logic
and national interests. Yet it is crucial for this understanding of integration
that the functional path has merely been the method rather than the aim of
European integration.
The stability which integration
has brought to European politics is not so much the consequence of current
agreement among member states as a result of accumulated experience of a legal
and institutional framework that has been built up over the past 45 years. The
specific characteristics of European integration- the degree of transparency it
has brought to international politics, the rule of law it has established in
interstate relations, the scale of administrative and commercial interaction it
has generated- make this a normatively valuable framework for political
decision making.
Clearly, there are limits to the
transparency and the rule of law in the EU, as there are serious limits to
democratic participation. The most likely alternative to functional integration
is the persistence of a state-centred system in which decision making would be
much less democratic, transparent, justifiable and efficient. Seen in this
light, the critique of the EU democratic deficit for a further democratisation
of the EU is only credible if it is based on an affirmation rather than a
rejection of the integration process.
Legitimising European
governance-beyond majoritarian democracy
The democratic legitimacy of the
EU is increasingly seen as a highly complex issue, in which the majoritarian
avenue might do damage to the European project. The underlying problem here is
the conceptual history of liberal democracy. If we look at their origin and
early practice, we see that the structures and procedures of representative
government are not simply the instruments of liberal democracy as which they
are usually regarded. They have functioned also as elements in the construction
of nation states. Indeed, in the liberal era, the conferral of democratic and
other citizenship rights has been one of the most important instruments for
state building. From the French Revolution onwards, the extension of
parliamentary democracy was essential in the creation of strong central states
based on a common national identity.
Democratic theory cannot give any
satisfactory answer to these questions. In this respect liberal democracy and
representative governments necessarily rest upon existing state or communal
boundaries, or else use what Barry calls arguments of persuasion to create new
boundaries. Borders and hierarchy are the hallmark of the modern state And
while the establishment of democratic regimes has not always created states,
and while many states remain undemocratic, there are no examples for state-less
forms of democracy.
Historically, the establishment
of liberal democracy came to be tied to, first, popular sovereignty and, later,
national self-determination. Popular sovereignty demands that ´the
people´ have ultimate control over the institutions of state. National
self-determination demands that each nation be recognised as ´a
people´ with the right to determine their own affairs. These two
principles have been fused in the powerful combination of ideas and values that
is the nation state. The revolutions of the 18, 19 and 20th
centuries each had their part in establishing the fusion of ´people’s
power´ with ´national liberation´, joining citizenship
with nationality. Thus, we are now faced with a generalised perception that the
acquisition of democratic rights requires the establishment of a state possibly
a state within a federation, but preferably an independent state.
9. Opportunity structures for
citizens´ participation
The case of the European Union
Hitherto, the political rights of
European citizens with respect to the European system have been limited to the
right to vote and to stand for European elections.
In order to prepare for ground
for a meaningful debate on these developments, and more far- reaching proposals
for the inclusion of direct- democracy devices in the EU Constitution, I first
outline the concept of `opportunity structures for citizens` participation`. I
then take a closer look at the current position on citizens´
participation in the EU. On the strength of this analysis, some democratic
innovations are suggested in the last section.
Voting at the European level
Voting at the national level of
the member states might be considered as an act of participation in the
European polity as well. First, the composition of the national legislature
influences considerably the transposition and implementation of legislative
acts of the EU. With respect to the implementation of EC directives, national
voting is a `polity-related` OSCP, in the sense that it affects the composition
of policy institutions. It is perhaps the most important channel by which
public opinion affects EC policy via member state governments. Third, national
voting is also a `control mechanism` in the sense that a strong political
mandate at the national level may induce a government to hold a particular view
on a European issue leading to the use of the veto in the Council of ministers
or the filling of complaints to the European Court of Justice.
Membership in large interest
groups, parties or federations.
As in any democratic system, this
OSCP is also present at EU level. However, most of the lobbies active in
Brussels are head federations of national organisations and, hence, without
individual membership. Therefore and because of the specific features of the EU
system (centralisation, geographical remoteness), this opportunity structure is
dominated by professionals and it is an even more mediated by professionals and
it is more mediated (indirect) OSCP for the `credit card member` than in the
national context. In particular, there is no European party system; that is,
the political groups active at the European level do not act independently of
the national levels and there is no individual membership of citizens either.
Given the Amsterdam reforms regarding the EP, the importance of European party
politics might increase in the long run.
… Deliberation about
institutional changes is needed to ensure the efficiency of the European
institutions after enlargement. However since, in the absence of objectives,
talk of efficiency becomes meaningless, deliberation about institutional change
cannot be separated from the question of objectives. To illustrate: the
Reflection Group has no qualms about maintaining the powers of the Commission.
The Commission is said o work most effectively when it can mix legislation,
enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix
of bargaining both about and within legal frameworks clearly constitutes an
avoidable threat of abuse of power.
The risk is even more pronounced
with uncertainty and disagreement about the aims of the EU. This disagreement
makes claims of efficiency controversial if not obfuscating. If EU institutions
focus exclusively on market efficiency, leaving the distributive tasks solely
to member states, the transfer of powers to European institutions might then
leave states unable to fulfill the legitimate claims of citizens.
Alternatively, the EU may have to assist states, by providing regional
transfers aimed at distributive justice among citizens of different. The extent
of any such distributive commitment is contested, and normative theory is
urgently needed. EU documents talk of convergence of living standard and
solidarity, but these terms must be specified: is the aim only to eradicate
dire poverty, or also to go beyond that baseline, towards equal living conditions
for all Europeans? Any such moves transfer formerly internal issues of domestic
policies of states towards centralised institutions, leaving national
governments with less leeway in the field of social policy. Some will argue
that these obligations cannot be adequately secured by emasculated nation
states.
A better understanding of the
legitimate aims of the EU is thus crucial for making headway on the issues of
legitimacy and democratic mechanisms, both practical and philosophical. As long
as the explicit aim of the EU was economic, increased efficiency was easily
interpreted as Pareto-improvements within a utilitarian setting. The task of
the EU was previously predominantly to secure peace and stability through free
markets, leaving matters of distribution and authority aside, in accordance
with standard economic theory. The EU now has much broader political
aspirations. Its objectives, criteria of efficiency, and the role of
majoritarian mechanisms must be reconsidered accordingly. The choice of means becomes
more important as economic benefit is supplemented by other political goals.
Transparency and the rule of law, majority rule, distributive justice, and
human rights all become central issues. They cannot be regarded merely as ideas
to be pursued on a par with economic efficiency, but are conditions of justice
if the EU indeed is to become and appear legitimate.
The EU is a multi-level political
system which is characterized by relations of asymmetry not just between a
suprastatal legal development and the lack of any corresponding democratic
accountability, but between positive and negative integration as well. It is
these two mutually reinforcing asymmetries which are conceptually central here,
and which are featured in the descriptive and explanatory efforts generally
accepted by jurists and political scientists.
For the federalist, symmetry is
to be achieved through a democratization of the suprastate. The confederalist
is critical as well. But for him/her, balance is to be attained through a democratization
of the suprastate. The confederalist is critical as well. But for him/her,
balance is to be attained through the renationalisation of Community law.
But is it possible to justify the
ratification of the Maastricht Treaty with the claim that this treaty-
notwithstanding its obviously suprastatist and asymmetrical features- accords
even so with the principle of a steadfastly constituted democracy, as this
demand is formulated in the Basic Law.
German democracy assumes a
distinctive character on account of its historical background. It is
constituted in perpetuity, and with a strong emotional attachment to the
inviolability of its fundamental provisions. No popular referendums may take
place within its framework. The Basic Law of 1949cannot, moreover, is altered
in respect to its core content.
The accession of the Federal
Republic to the EU must therefore take place in a form permitted by the
applicable articles. It is not possible to solve the problem through political
means- as has been done in other member states- by allowing a referendum to
undermine the central constitutional provisions safeguarding the right of the
people to determine their fate. What was viewed in Denmark and in France as a
political question to be decided by plebiscite was seen in Germany as a problem
of constitutional law, to be decided by the Constitutional Court.
Decisions in the Council of
Ministers can be adopted by majority rule. Furthermore, Community law not only
has direct effect in the member states, but also enjoys priority in the
principle over provisions adopted within each nation. The Union Treaty takes
the fulfillment of these three requirements as a given. At the same time, the
Court states as a condition for its verdict that the provisions of the Basic
law in respect to democratic accountability be guaranteed.
Democratic
accountability
Democracy, if it is not to remain
as merely a formal principle of accountability, is dependent on the existence
of certain pre-legal conditions, such as a continuous free debate between
opposing social forces, interests and ideas, in which political goals become
clarified and change course... and out of which a public opinion emerges which
starts to shape a political will. This also means that the decision- making
processes of the organs exercising sovereign powers and the various political
objectives pursued can be generally perceived and understood, and therefore
that citizens entitled to vote can communicate, in their own language, with the
sovereign authority to which they are subject....
If, as at present, the peoples of
the individual states provide democratic legitimating through their national
parliaments, limits to the extension of the European Communities´
functions and powers are then set by virtue of the democratic principle. Each
of the peoples of the individual states is the starting point for the public
authority relating to that people. The states need sufficiently important
spheres of activity of their own in which the peoples of each can develop and
articulate in a process of political will- formation which it legitimates and
controls, in order to give legal expression to what- relatively homogeneously-
binds the people spiritually, socially and politically together...
Economically, socially and
environmentally, the member states are closely bound up with one another. The
financial markets can on good grounds be expected to react most powerfully
should a country make use of its constitutional right wholly or in part to
forbid the application of Community law within its territory.
The constitutional Court departs
even from such realism when it assumes the demand for the democratic
accountability is satisfied through the merely theoretical possibility of
partial withdrawal form Community law. For the Court cannot adduce any example
of a parliament which has ever dared defy the provisionally established
suprastatal order. On no occasion and in no setting, to the best of my
knowledge, has any national decision been made to close the borders of a member
state to Community law.
11. European Union citizenship
as a model of citizenship beyond the nation state
Possibilities and limits
The 1992 Treaty on European Union
(TEU) laid the foundations for a European civil society by introducing the
institution of EU citizenship as a supplement to national citizenship. EU
nationals have a right to free movement and residence.
EU citizenship as an
institutional design offers both unique challenges and interesting
possibilities. Among the latter is the prospect of a post-national political
arrangement which facilitates multiple membership, by both natural and legal
persons, in various overlapping and strategically interacting communities on
supranational, national and regional/local levels. EU citizenship also entails
the promise both of a heterogeneous community which transcends the nationality
model of citizenship.
Several of these possibilities,
however, remain at present unexplored or frustrated owing to the inappropriate
imposition of the logic and the language of the nation state onto the European
level. A prime manifestation of this is the conditioning of the personal scope
of EU citizenship upon tenure or acquisition of member state nationality.