European Union and "Democratic Deficit"

Hans Köchler

On 'democratic deficits'.

(Image from Wikipedia)

I won't pretend to understand the complexities of the European Union (EU), nor especially of the Treaty establishing a Constitution for Europe (TCE), but I'm reading an article by Hans Köchler, "The European Constitution and the Imperatives of Transnational Democracy," Singapore Year Book of International Law, Volume 9 (2005, pdf) that clarifies the charge that the TCE would result in an EU with a "democratic deficit."

Among other things, the TCE would structure EU governance to include a Council of Ministers and a European Parliament, the former composed of individuals representing the executives of European states (national sovereignty) and the latter composed of representatives directly elected by European citizens (transnational democracy). The issue concerns how these two bodies interact to govern the EU. Köchler explains:

Apart from the ordinary legislative procedure, the Constitution provides for "special legislative procedures". This introduces a kind of parallel legislative structure and, in certain cases, establishes de facto sovereign legislative power for the Council. This is a striking departure from the principle of linking an act of legislation, either directly or indirectly, to the will of the nominal legislative body, the European Parliament, and, thus, poses a special problem of democratic legitimacy. According to Art. I-34(2), in specific cases listed by the Constitution, laws may be adopted by the European Parliament with the participation of the Council ("European laws of the European Parliament") or by the Council with the participation of the European Parliament ("European laws of the Council"). However, the balance of power, regarding these parallel mechanisms, is clearly tilted towards the Council of Ministers.[27] Not only are most, and particularly the more substantial, matters[28] to be decided under the special legislative procedure established for "European laws of the Council", the "European laws of the European Parliament" always require the consent of the Council while the latter may, in certain cases, adopt laws after merely "consulting" the Parliament.

When adopting a European law on the basis of the special legislative procedure, the Council acts after either obtaining the consent of or "consulting" the European Parliament. [End of page 7] In certain cases, unanimous action by the Council is required, in other cases the Council acts by a qualified majority the democratic implications of which will be analysed below. The matters to be decided on the basis of this procedure are spread over the entire Constitution and relate to the most essential competences such as the Union's budget.

In marked distinction from the legislative competences of the Council of Ministers, the legislative authority of the European Parliament, insofar as it acts under the special legislative procedure, is exclusively tied to the consent of the Council. Apart from the aspect of relative authority (the adoption of a law being conditional upon the Council's consent), only three cases to be decided through a "European law of the European Parliament" can be found in the constitution, relating to relatively unimportant issues: Art. III-330(2) subjects regulations on the duties of Parliament Members to this special procedure; Art. III-333 deals with provisions governing the exercise of the right of inquiry; and Art. III-335 provides for rules governing the duties of the European Ombudsman. In decisions on all three cases, the Parliament acts "after obtaining the consent of the Council".

In view of the unequal balance of power between the European Parliament and the Council of Ministers in the exercise of the legislative function described above, the question as to the status of the Parliament as a genuine legislative body is to be posed. Under the ordinary legislative procedure, the Parliament has to act jointly with the Council,[29] which is nothing unusual in procedural terms since national parliaments are in most cases bound to obtaining the consent of a second chamber for a law coming into force. It is, however, unusual in material terms of the separation of powers between the legislative and the executive branches since, in the case of the Union, the group of representatives of the member states' executive branches (the Council of Ministers)[30] acts as second chamber. As regards the tópos of the "democratic deficit" at the Union level, another aspect must not be overlooked -- unlike national parliaments, the European Parliament, under the ordinary legislative procedure, cannot initiate any laws by itself. According to Art. I-26(2), "Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Constitution provides otherwise . . ." As we have documented above, the cases calling for a special legislative procedure whereby the Parliament acts on its own initiative are small in number and only symbolic in importance.

Footnotes:

27 On the power constellation as it has evolved (in the pre-constitutional framework) within the Council of the European Union (in the new Constitution: Council of Ministers), see the empirical study by Torsten J. Selck & Michael Kaeding, "Divergent Interests and Different Success Rates: France, Germany, Italy, and the United Kingdom in EU Legislative Negotiations" (2004) 2 French Politics 81.

28 See, for instance, the provisions on decisions on budgetary matters.

29 Where "the two institutions cannot reach agreement on an act, it shall not be adopted", states Art. I-34[1], supra note 12.

30 Art. I-23(2) of the Constitution, supra note 12, states: "The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote".

(Köchler, "European Constitution," SYBIL, Vol. 9 (2005), pages 7-8)

In short, the European Parliament is largely under the control of the Council of Ministers. Hence the "democratic deficit." Presumably, this lack of democratic legitimacy contributed to the TCE's rejection by French and Dutch voters.

But how would one 'fix' this problem? It seems to me that the EU faces a crucial dilemma: either democratize the EU by giving up more national sovereignty or retain national sovereignty by giving up on a more democratic EU.