Is the European Union more concerned with the appearance rather that the reality of Democracy?

Monday 18 November 2002

Marcus Wischik

It is treated as axiomatic that democracy is the best form of governance available to a state actor. Countries with such diverse and dubious political heritages as the Democratic People's Republic of Korea (North Korea) and the Democratic Republic of Congo refer to themselves as democracies. This suggests that this claim is more talismanic than operative. There are two important considerations concerning democracy—firstly how it can be applied to a supra-state actor, and secondly to what extent such a democratisation has taken place. Finally, the question of the appearance rather than the practice of democracy will be addressed.

The nature of EU-level democracy must necessarily be judged on different criteria to that of states. Weiler et al [1] suggest that three ‘levels’ within the EU are each characterised by different forms of democracy. The first is the intergovernmental level; conventional diplomacy and international politics. The second level is the supranational level. This revolves around the institutions of the Union, and the member states. The third level is that of Union itself, where it behaves in a similar fashion to a national assembly, replete with interest groups and technocrats. I find such a view unhelpful—the interpretations of democracy offered at these different levels correspond only marginally with what citizens of Member-States experience. Such conceptualisations of democracy as ‘pluralist’ or ‘neo-corporatist’ attempt to side-step the real issue. This is defining democracy with reference to the EU, when the process should be reversed—a single and coherent form of democracy should firstly be defined, and then applied to all levels of the EU. A formulation of democracy should respect the principles of the separation of powers, and of broadly reaching representation. This, however, would suggest a Euro-federalist agenda.

The democratic nature and mandate of the EU institutions bears consideration. The Council, as representative of the elected governments of member states has a democratic mandate. The Parliament, constituted by direct election, has an even stronger claim to legitimacy. The problem arises when one considers the Commission. It exists as guardian of the treaties and to ensure the long-term goals of the EU, without being swayed by short-term national political interest, and as the major legislative initiator of the EU. These arguments sounded hollow when advanced for the preservation of an unreformed House of Lords in the United Kingdom. As Paine [2] suggested, representation should be directly proportionate to power; an unrepresentative body should have no power at all. Yet in the Commission we see a body with broad legislative and executive powers.

We must necessarily question the desire for an increasingly democratic EU. Is it necessary for what began as an economic body to manifest some of the attributes of a state? It is a common theme in international relations discourse that liberalist market reforms and increasingly civil liberties will bring about a free-market economy—this is precisely the point of organisations such as the IMF or the World Bank [3]. This is also the reason behind free-trade agreements with countries such as China. One could characterise democracy, free-market economies, and respect for civil liberties as prerequisites of all Western government, and an aspect of their claim to statehood. In demanding greater democracy in the EU, do we demand that it become more state-like? In doing so we must reveal our federalist agenda. It is interesting to note that the EU itself aspires to be more democratic [4], and therefore perhaps more state-like. The alternative to this argument is that democracy is unnecessary and perhaps unrealisable in a trans-national actor.

The European Union as we know it today has its roots in a number of different and far less ambitious organisations. These organisations include the Organisation for Economic Co-operation, as well as the Council of Europe. The most directly related to the European Union today is the European Coal and Steel Community (ECSC). The aim of such an organisation was to render the continental European combatants of World War II incapable of making war on each other by creating a common market in coal and steel. The ECSC was the product of a federalist outlook; the desire to pool / surrender sovereignty in a number of areas. These areas were expanded in 1957 by the Treaty of Rome, which gave rise to the European Economic Community (EEC), and EurAtom The areas that comprised the core community activities tended to be of economic importance: agriculture, competition, taxation and tariffs. Their aims, in other words, were economic. It is only in passing that the Communities had any socio-political impact. As the socio-political sphere collided with the economic sphere, the EEC faced a challenge it was ill-equipped to deal with. This is the challenge of fundamental rights and principles within the Community system. It is precisely these fundamental rights that underpin and guarantee democracy.

Having considered the democratisation of the EU in general, it is now necessary to consider arguments relating to the democratic deficit within it. These can be grouped into six general headings. These relate to the inability of the electorate to change the executive, the problem of executive dominance as well as distance, the inscrutable committee structure, issues of transparency and complexity, the movement away from state constitutional court control over legislation, and the question of substantive imbalance.

Abraham Lincoln recognised one of the fundamental aspects of democratic governance in his Gettysburg address; it must be ‘…of the people, by the people, for the people…’ [5]. It is evident from this statement that an election that cannot at least theoretically replace the government is not a true election. This is the problem that confronts the EU. Given the distributed legislative powers of the Commission, Council, and Parliament, it is surprising when compared to a geographically-bounded democratic polity that only the Parliament that is directly elected. It is interesting that ‘European Governance—A White Paper’ suggests no remedies to this situation. It would be odd in fact were the commission to suggest itself out of existence, at least in its current form. It would be a weak counter-argument to suggest that the Council is a ‘secondary’ and the Committee a ‘tertiary’ elected body. It could be remarked that power is inversely proportional to representation; the Commission and the Council tend to have more powers vested in them by the treaties than does the Parliament. It is only the Parliament that must be directly elected. Craig & de Burca [6] suggest that it is not necessarily true that the Parliament has no real power. They suggest that most of its amendments have been accepted and the co-decision procedure is now widely used. It should be noted that the current structure is not the way that the EU has always been organised. As originally constituted, the European Parliament had drastically reduced powers. This reflects the original purpose of the EU as an economic body, rather than as a proto-state.

As competence is increasingly transferred from state governments to the EU, the power of the executive is enhanced at the expense of local democratic representation in state assemblies. It can be argued that the very existence of the European Parliament as a directly elected forum alleviates this problem [7]. It is, however, an unconvincing one. The suggestions in the White Paper for improvement again skirt this issue. This is perhaps driven by the Federalist agenda of the Commission—why should we object to having power taken away from local assemblies when a European assembly can represent us instead? I personally find such an argument unsatisfactory. Given the remarkably low turn-out in European Parliament elections (The Channel 4 Programme ‘Big Brother’ had a higher turnout [8]), and the still relatively primitive political party system in the Parliament, it seems ill advised to rely on such a body when constitutional evolution has equipped each member state with a far better adapted body

Craig & De Burca argue that in domestic politics that the executive is always the dominant legislator, and so it is the natural position of a parliament to be subordinate to an executive. This statement relies upon a false assumption: that all parliaments are subordinate to an executive, therefore all parliaments can be subordinate to the same executive. It is acceptable for the British Parliament to be subordinate to the British executive, but not for it to be subordinate to a French or Belgian, or a Europe-wide executive. Given that an executive, at least in the United Kingdom, is theoretically derivative of the Parliament, the necessary interplay and interaction between the two bodies would be removed by replacing the British executive with a European one. This is coupled to the ‘Distance Issue’. As powers are transferred, the exercise of such powers necessarily occurs at a far greater distance from where the effects will be felt. Having said that, objections to government from hundreds of miles away is based more on emotion, than law or politics.

Another requirement of democratic society is that of knowledge. This, however, is not as fundamental as issues of representation; it makes democracy more efficient and productive. This usually takes the form of openness and accountability. It is far harder for a system of government that hides its mechanisms of decision-making to be democratic than one that is openly accountable. A citizen cannot make informed political decisions without at least a vague comprehension of the way in which the political system works. This is a concept that the White Paper has warmed to—it lists numerous mechanisms by which the ‘Community Method’ can be made more accessible to and understood by the citizens of Europe:

…the EU's EUROPA Website, is set to evolve into an inter-active platform for information, feedback and debate, linking parallel networks across the Union.
The above quotation is redolent with information jargon. It is apparently hoped that electronic distribution of information will assist in the openness project. It seems unlikely that a website will alone rectify the ills that beset the Community. The entire section of the White Paper devoted to this aspect is far stronger on concepts and theories than actual suggestions for positive change. A number of sensible goals are set by the White Paper, such as increased dialogue with non-state actors within member states, increasing openness in decision making, and the adoption of a number of alternative legislative devices. This, in my opinion, is the only area of ‘democratic deficit’ that the White Paper has dealt with to any degree of satisfaction.

The question of constitutional control over member state's legislation is an important one. Indeed, the German and Italian constitutional courts are arguably responsible for the creation of a fundamental rights dialogue within the ECJ [10]. As powers devolve from state systems, the oversight that such courts provide will necessarily become weakened. This is of greater importance in more strongly constitutional systems in which a written constitution delineates the areas of competence of the various arms of Government. In this country, this question has been rephrased into forms relating to the supremacy of Parliament. The suggestions in the White Paper to counter this problem revolve again around greater participation and the use of ‘networks’ at the state-level. It is argued that, if the EU becomes more representative and closer to ‘grass roots’ then so to will its institutions, meaning that the European Court will reach the same decisions that the domestic constitutional courts would have reached by themselves.

The issue of ‘substantive imbalance’ relates to Marxist critiques of the European legal order. Theorists suggest that the relaxation of trade regulations within the common market have exacerbated labour / capital divisions within the EU [11]. This is perhaps more a problem with free market liberal capitalism than with the EU, and as such is outwith the scope of EU law to cure.

Craig & de Burca suggest that the above critiques are all made from the point of view they refer to as status quo ante. They believe that without the EU, the requirement for international co-ordination and co-operation would still have to be met:

…if there were no EU, a more likely situation would be ad-hoc agreements. These would be complex, confusing, time-consuming and, perhaps, no more democratic.
Craig & de Búrca [12]
This would suggest that the current arrangement is neither complex, nor confusing, nor time-consuming. This argument is essentially that the EU legal order is at least only as bad as what the alternatives could be.

The White Paper is seemingly more concerned with the more superficial aspects of democracy. Granted, such issues as greater legislative co-operation, openness, and discussion are important. They do not, however, address the fundamentally flawed and undemocratic structure of the current system. The White Paper suggests small-scale changes that will affect a marginal increase in the democratisation of the EU. These changes amount to window-dressing, rather than a serious commitment to democratic reform.

Given the imminent expansion eastwards of the EU, the resolution of such questions is of vital importance. It is necessary to make a decision about the future role of the EU. If it is to become a proto-state actor with wide-ranging social, political, judicial and legal powers and competences, then fundamental reform is necessary to make it more democratic. If, on the other hand, the economic aspects of the EU are to have primacy, then, like GATT or other purely economic bodies, it need not have a deeply rooted democratic mandate. The time will come when it is necessary to decide on which path the EU is to take; sitting on the fence and occasionally repainting that fence will soon become an untenable position.

[1] J Weiler, U Haltern and F Mayer, European Democracy and its Critique in J Hayward (ed), The Crisis of Representation in Europe (Frank Cass, 1995) 32-3
[2] Thomas Paine, The Rights of Man, Dover Publications (December 1999)
[3] Development & Human Rights: The Role of the World Bank (18 November 2002)
[4] COM(2001) 428 Final European Governance—A White Paper
[5] Abraham Lincoln, The Gettysburg Address, Library of Congress Exhibition (19 November 2002)
[6] Craig & de Búrca, EU Law—Text, Cases & Materials (3rd Edition) Oxford University Press, New York (2003) p169
[7] Craig & de Búrca, EU Law—Text, Cases & Materials (3rd Edition) Oxford University Press, New York (2003) p168
[8] Democracy In Crisis (17 November 2002)
[9] COM(2001) 428 Final European Governance—A White Paper p11
[10] For example, Solange I [1974] 2 CMLR 540
[11] TK Hervey, Queen's Papers on Europeanisation No3 (2001) Europeanization of the Regulation of GM Products: Science versus Citizens? (17 November 2002)
[12] From Craig & de Búrca, EU Law—Text, Cases & Materials (3rd Edition) Oxford University Press, New York (2003) p169 as sumarised by Democracy within the European Community (7 November 2002)


On the nature of democracy generally
Abraham Lincoln, The Gettysburg Address, Library of Congress Exhibition (19 November 2002)
Thomas Paine, The Rights of Man, Dover Publications (December 1999)
R Stone, Civil Liberties & Human Rights (3rd Edition) Blackstone, London 2000
On the Nature of Democracy within the EU
J Weiler, U Haltern and F Mayer, European Democracy and its Critique in J Hayward (ed), The Crisis of Representation in Europe (Frank Cass, 1995) 32-3
Craig & de Búrca, EU Law—Text, Cases & Materials (3rd Edition) Oxford University Press, New York (2003)
Democracy In Crisis (17 November 2002)
House of Lords Reports on Access to Documents (16 of 2000 & 8 of 2001)
C Archer & F Butler, The European Community: Structure & Process, Pinter Publishers, London (1992)
TK Hervey, Queen's Papers on Europeanisation No3 (2001) Europeanization of the Regulation of GM Products: Science versus Citizens? (17 November 2002)
COM(2001) 428 Final European Governance—A White Paper
International Relations Material
Development & Human Rights: The Role of the World Bank (18 November 2002)
T. Salmon (ed), Issues in International Relations, Routledge, London (2001)
Case Law
Solange I [1974] 2 CMLR 540
Case 44/79 Hauer v Land Rheinland-Pfalz
Case C-353/99P Hautala v Council
Copyright © Marcus Wischik 2002