Saturday, October 11, 2008

European Union and "Democratic Deficit"

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.


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.

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At 9:23 PM, Anonymous Anonymous said...

This analysis of the TEC is not really objective. Moreover, one should rather look at the Lisbon treaty than the TEC, as the later is dead. In the legislative process both treaties are somewhat similar though.

One of the basic assumptions in the analysis above I can only see as highly biased. Those special procedures are definitely not reserved for the most important issues. What is true is in fact that they are limited to those areas of the EU where integration is still not going far enough. In those areas where this is the case you have however also the condition that the council can only act unanimously. Most of the special procedures is concerning foreign and defense policies. An area that is still more intergovernmental in nature. The powers of the EU in these areas are limited so far anyway, as its still mostly the business of the member states who may cooperate for a common aim.

Pretty much all the rest and for sure all the areas that are integrated in a supranational way will see a co-decision procedure, where the Parliament meets the council on eye level. And in regards to the argument that the EP has no right of initiating legislation, well, look around in the member states. Many Parliaments have that right, but do they use it? Hardly ever. Furthermore the Parliament can ask the Commission for an initiative, which the Commission increasingly more accepts and does.

What that analysis also completely ignored is the power the Parliament has over the Commission and over the EU Budget. The Parliament can dismiss the former at any time it wants and it has to confirm every budget in its entirety (at least once the Lisbon treaty is in power). Which gives it influence over foreign policy as well as soon as it costs the EU something and not much can be done for free.

The European Parliament has seen a dramatic rise in power over the last decade. Thats a fact that gets rarely acknowledged. There is little doubt that its already today under the treaty of Nice more powerful than some of the national parliaments. Even though there is still dire need to make the EU more democratic, those analysis like the one above depict the EU in the worst possible light and not in an objective one.

At 9:42 PM, Blogger Horace Jeffery Hodges said...

Thanks, Slartibartfas, for the useful information. You know a lot more about this complex material than I do.

Based on the little that I know about Hans Köchler, I would expect that he should be a strong supporter of the EU. Perhaps he was taking an overly formal approach to his analysis.

I'll look into the Lisbon Treaty. Do you have any other suggestions on what to read up on?

Jeffery Hodges

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At 12:50 AM, Anonymous Anonymous said...

Don't make the EU too complicated. Don't diminish freedom in Europe.
Vote YES to Free Europe Constitution at

At 1:00 AM, Anonymous Anonymous said...

It seems Prof. Köchler is indeed a respectable figure. I have not known him before even though he is a prominent figure at the university of Innsbruck.

Actually he addresses weak points of the EU. I just don't agree in the extend of democratic deficit caused by them.

You could be right that he took "an overly formal approach to his analysis." The point is he compares the EU to democracy in sovereign states. The EU however is no state, it has state like features for sure, but in other aspects its sometimes not more than an upgraded common international organisation.

The European Parliament was not more than a debate club a few decades ago, with hardly any real power. In each of the treaties since then its position had been substantially upgraded. I think what is very important to see this into that context and I agree with you that further integration made that decrease of the democratic deficit possible.

The perfect reform in my eyes would radically reform the EU legislation. The EU Parliament would get all those competences Köchler misses, the EU council would be dramatically reformed with replacing the national ministers by national delegates sent by the national parliaments. Of course this is utopia, thats why I like to stick with reforms that have at least a vague chance of being realized.

When looked at the issue from a rational point of view, the dilemma is that when one opposes the treaty of Lisbon, one confirms the treaty of Nice (which is currently in place) where all those democratic deficits are larger.

If you want to read up on the Lisbon treaty, wikipedia perhaps is the first place to look at. I know that its not always really trustworthy, but the EU pages there are among the best I know so far, as they are quite extensive but still compact enough to give a good overview.

If you really want to read into the original text of the Lisbon treaty I strongly suggest you to get the consolidated treaties (in the Lisbon version).
The Lisbon treaty itself is pretty unreadable, but the text in the link above is what matters anyway.

At 1:08 AM, Anonymous Anonymous said...


"FreeEurope" is supported by the fiercest EU phobic politician in an higher office: Vaclav Klaus.

I guess that says pretty much about the nature of this initiative. The initiative does not demand less than the complete dismantling of the supranational EU and if at all replace parts of it by unbinding intergovernmental cooperation only.

At 5:18 AM, Blogger Horace Jeffery Hodges said...

Anonymous, I'm not a European (except by distant descent), so I can't vote, but I'm always interested to read what Europeans are debating, so thanks for the link. I'd never heard of the Free Europe Constitution.

Jeffery Hodges

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At 5:33 AM, Blogger Horace Jeffery Hodges said...

Thanks, Slartibartfas, for the further details. I just took a look at the pdf link, which appears rather overwhelming to me at the moment . . . but what doesn't look overwhelming at 5:00 a.m.?

I'd better finish my coffee first.

Then, I'll check Wikipedia, which I also don't trust completely (for all the obvious reasons), but it provides a very useful introduction to all sorts of things.

Jeffery Hodges

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At 11:52 AM, Blogger Dr. Worden said...

It is ironic that the European Parliament is thought to have a democratic deficit when the average population in a MP's district is about 50,000 less than in an average US House district. As I argue in, the US House could become more democratic by expanding to 751 seats, which we now know is viable.

At 8:50 PM, Blogger Horace Jeffery Hodges said...

Dr. Worden, thanks for the comment, but the fact that "the average population in a MP's district is about 50,000 less than in an average US House district" is not decisive on the issue of the EU's democratic deficit.

By the way, you didn't follow directions on how to link when you left your address.

As you see, I've linked for you. That seemed to be your principal reason for leaving a comment, anyway.

Jeffery Hodges

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