Written by Christopher Joseph Wei-Yan Guo, LLB (First-Class Honours), University of Liverpool.
Edited by Ashley Khor Xin Hui.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
Notwithstanding the eventful withdrawal of the United Kingdom from the European Union (EU) on the 31st of January 2020, the EU still stands as one of the most significant international organisations to take shape in history — an international union set up to secure lasting peace for a world ravaged by the Second World War. With the Union representing over 27 Member States (MS) and their respective citizens, the examination of democratic legitimacy in the EU is one of great importance to allow for other international and national institutions to develop a more democratic approach to their governance.
‘Given the range and depth of the EU’s regulatory powers, the EU regulatory structure is insufficiently accountable from a democratic point of view.’
The EU is neither a State nor a federation of States; it is a supranational and sui generis legal order. Unfortunately, Dr Anthanasios Psygkas — a senior lecturer in public law and politics at the University of Bristol — believes the EU lacks the same democratic qualities possessed by domestic political entities due to its flawed institutional framework and legislative process. The institutions and bodies of the Union each were intended to represent the MS and their citizens — with the law-making process of the Union seeking greater involvement from MS and citizens. However, these institutions and the legislative process suffer from both a lack of input and throughput legitimacy which inevitably causes insufficient democracy.
Hence, this article will delve into whether the interests of the Union’s treaties align with either the interest of the Union or the interests of the MS and their citizens. These interests — categorised into input, throughput and output legitimacy — are relevant as sufficient democracy can only be achieved when these three groups are adequately fulfilled. Furthermore, comments will be made on how a lack of inter-institutional balance often pales in comparison with the intra-institutional problems that largely deprive the process of democratic legitimation. To understand this, concepts such as transparency and citizen involvement in these institutions will have to be examined with a critical eye.
II. DEMOCRACY AND ITS DEPENDENCE ON THE BALANCE OF INTERESTS IN THIS UNIQUE LEGAL ORDER
The varying interests are divided into input, throughput and output legitimacy. Legitimacy in this context means the consent ‘by the ruled of the government of their rulers’. Art. 13(1) of the Treaty on European Union (TEU) sets out interested parties as the Union itself, the MS and their citizens. More specifically, the Treaty prescribes the Union’s main interest in having ‘an institutional framework which shall aim to promote its values, advance its objectives, serve its interests … and ensure the consistency, effectiveness and continuity of its policies and actions’. This interest reflects output legitimacy. The Treaty, on the other hand, also guarantees the interests of MS and their citizens to incorporate greater democracy. This is achieved by way of representation and participation (input legitimacy), transparency of information and channels of accountability that enables effective MS or citizen action towards the goal of a greater democracy (throughput legitimacy).
Input, output and throughput legitimacy are all necessary to achieve sufficient democracy. As mentioned earlier, input legitimacy concerns ‘government by the people’ and reflects the will of the people — which requires participation and consensus of MS governments and their citizens. Meanwhile, output legitimacy means ‘government for the people’, prioritising effectiveness and efficiency of the outcomes of European measures. Throughput legitimacy is described by Vivien A. Schmidt — an American political scientist — as a principle ‘judged in terms of the efficacy, accountability and transparency of the EU’s governance processes along with their inclusiveness and openness to consultation with the people.’
Citizen participation, whilst imperative, is not enough for democracy to persist in a political entity. In fact, transparency is an equally crucial element as it empowers voters to openly debate their representative’s actions, which subsequently leads to punishing said deviant representatives. Inter-institutional balance is also a vital gateway for throughput legitimacy as it increases institutional accountability not to overstep their competences. Therefore, democracy must be assessed through an input, output and throughput perspective.
III. INSTITUTIONAL FRAMEWORK
Art. 13(1) of the TEU lists, inter alia, the European Parliament (EP), Council of the European Union (Council) and European Commission (Commission) as Union institutions. The EP and Council make up the Union legislature, while the Council and Commission form the Union’s executive body.
A. Inter-institutional Balance
The EP is the primary input-legitimacy-providing institution whereupon ‘citizens are directly represented at Union level’ — with the number of represented EU citizens reaching a number of over 500 million. The EP also satisfies the representative tradition where decisions are supposedly backed by popularity of its citizens through their directly elected representatives. These representatives comprise those who are elected by direct universal suffrage for 5-year terms.
In providing the standard legislative procedure for the Union, Art. 294 grants the EP a co-decision-making function with the Council. This puts the EP on an equal footing to the Council and it may, by absolute majority, vote to veto legislation it disagrees upon. The legislation covers over 80 areas extensively, ranging from data protection to agriculture and even the Five Freedoms for animal welfare. Likewise, the EP may also choose not to independently adopt legislation from the Council. This ensures that institutions representing European citizens and the MS concurrently agree upon legislative proposals before adopting them.
However, a massive blow to inter-institutional balance can be observed in how the EP is deprived of the right of legislative initiative — which instead only belongs to the sole prerogative of the Commission. In contrast with domestic systems, Members of the European Parliament (MEPs) may only request proposals from the Commission’s board of unelected representatives. To add onto this unorthodox process, this board also has the right to refuse to draft such proposals if the Commission considers them unfounded. Generally, while the Treaties do require the Commission to be independent and technocratic to avoid erroneous policies arising from political pressure, the 1999 Santer Commission corruption scandal demonstrates that greater democratic oversight is rightly required.
B. Justifications Against Imbalances
The Commission is the unelected executive institution that spearheads the responsibility in promoting the Union’s interests, which is illustrated in the way it is dubbed as the ‘Guardian of the Treaties’. Although its members are unelected, the rotation and Spitzenkandidaten systems ensure that the composition’s appointment is carried out more democratically.
The rotation process begins with the European Council proposing Commissioners who satisfactorily reflect the geography and demographics of the MS. It is then followed by the EP confirming the Commission as a collective body through a vote of consent after subjecting the candidates to written and oral questions. As for the Spitzenkandidaten system, the Commission President’s election is largely tied to EP elections as it requires the EP to approve the candidate. The Commission’s ‘election’ by the EP also arguably makes their appointment more democratic as opposed to direct appointment by the European Council.
Additional to Commission hearings, the EP may also vote on a motion of censure to make the Commission resign as a body, which was almost exercised on the Santer Commission for allegations of fraud. Nevertheless, it still resulted in the entire body resigning from their positions, thereby showcasing the Commission’s accountability to the Union’s elected representatives.
As mentioned earlier, the Commission sets the legislative agenda through its sole prerogative to propose legislation before the Union legislature. While this may seem biased as the Commission is not democratically elected, it in fact greatly aids output legitimacy. An example of this can be seen in the way the Commission assesses the policy preferences of the two legislative chambers before developing policies that suit the needs of both, thus leading to a reduction in gridlock intervals between the Council and Parliament. The Commission’s role in legislating is further moderated as it is strictly reserved for the purpose of initiating proposals. As a result, the Commission cannot indirectly veto legislative proposals by withdrawing them from the legislature. Any withdrawal must then be supported by reasons and open to challenge by the Union legislature.
Additionally, the Commission’s right to steer the legislative initiative is further justified as it is the only independent body that can impartially propose suitable solutions that satisfy the general interests of all MS. This significantly improves both input and output legitimacy. Contrastingly, the EP and Council were initially established to protect MS and citizen interests — not common interests — and in practice MEPs and Council members tend to overwhelmingly vote to protect their national economic interests. An illustration of this would be the EP’s rejection of the 2001 Takeover Directive proposal to provide EU shareholders with a level-playing field in each MS.
IV. INTRA-INSTITUTIONAL PROBLEMS
As discussed, the democratic deficit does not largely lie inter-institutionally, but rather intra-institutionally. In terms of representation in the EP, national quotas are allocated to the smallest and biggest States. Evidently, this contravenes with the principle of ‘one citizen, one vote’ and either over-represents or under-represents citizens of different nationalities. Art. 14(2) of the TEU stipulates a minimum of 6 seats and a maximum number of 96 seats per MS. An example of such misrepresentation is how each Maltese citizen’s vote translates to an over-representation compared to citizens in other States, especially against the German people. In the case of Gauweiler, the German Constitutional Court held that the EP had neglected EU citizens in terms of equal voting rights at a national level, which effectively puts into question the EU’s fulfilment of Art. 9 of the TEU — whether or not the ‘equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies’ has been properly manifested. Upon further inspection, this obligation is merely arguably fulfilled as it must be first reconciled with the principle of equality of States.
Moreover, the EP elections have discouragingly fell short in contributing ample input and throughput legitimacy. Since 1979, statistics have indicated that these elections have been insufficiently participated by European citizens; contesting political parties are weak, uncoordinated and underdeveloped — without any party attaining a simple majority. These limitations have deprived European citizens of alternatives and a vehicle for vigorous political debate and scrutiny. The 1979 elections recorded a voter turnout of 62%, but that number has been subjected to a consistent decline, plummeting towards new lows of 42.6% by 2014. Averagely, only 30% to 40% of the United Kingdom’s qualified voters have exercised their voting rights since 1979. Furthermore, voters often cast their votes based on their own national issues, which in turn, reduces European elections into mere ‘second-order national elections’.
The parties contesting in the elections typically have a weak political presence in the EP, resulting in an incoherent spread of political representation where no one party succeeds in commanding a majority. Without an incentive to form coalitions on the part of these parties, citizens will then continue to be deprived of both forceful and well-thought-out stances on European policies and their alternatives.
The Council is the primary legislative organ of the Union and represents the interests of the MS through its composition of democratically elected ministers from each MS. The Council adopts decisions through Qualified Majority Voting (QMV) by default. From 1st November 2014, QMVs now follow a double-majority rule that requires the assent of 55% MS representing 65% of EU citizens. To safeguard minority interests, a blocking minority requires at least four MS making up 35% of the population plus one additional member. Evidently, this amendment focuses heavily on demographic weight in making decisions more representative. The position is a shift from the triple-majority rule of the 2001 Nice Treaty which required a majority of 74% of MS representing 62% of EU citizens. The previous stance that caused many deadlocks was deemed too inefficient and reduced output legitimacy.
In light of this modification, the Council’s current QMV system excessively benefits the five largest MS, who make up 63.1% of the EU population in 2018, and puts minority States at a major disadvantage in forming a blocking minority against legislation prejudiced towards them. While it fulfils the ‘one citizen, one vote’ principle through greater representation, the downside is that it fails to respect the equality of EU citizens regardless of nationality. Although 82% of Council measures have mostly been adopted by a consensus, this problem will eventually materialise itself in the event of minority-prejudicial legislation being put to the vote.
C. Law-making Processes
1. Democratic aspects
The Treaties generally take on a highly inclusive approach towards involving the institutions, national parliaments and their citizens in the legislative process. Provisions in Art. 12(a)-(f) of the TEU increases the involvement of MS by allowing national parliaments to be directly involved in the legislative process in accordance with Protocol No.2 and Protocol No.1. These protocols increase throughput legitimacy by delivering drafted pieces of legislation to be reviewed by national parliaments. This encourages MPs — who are ‘closer to the people’ — to be the vehicle for public debate on European issues. Protocol No.2 specifically allows national parliaments to directly influence the law-making process by raising a drafted Act’s non-compliance with the principle of subsidiarity. Through a course of action coined as the ‘yellow card’ procedure, the Commission is obliged to review the draft legislation with a third of national parliament votes (or half for an ordinary legislative procedure). Regardless, the Commission is not bound to withdraw it and may instead maintain or amend the proposal.
On top of that, Art. 11(4) of the TEU establishes the framework for the right of a European Citizens’ Initiative (ECI) — which aims to greatly increase input and throughput legitimacy through citizen participation and perception of transparency of citizen-led agenda-setting. The ECI allows European citizens to invite the Commission to act on legislative proposals provided they have accumulated a total of 1 million signatures. This provides a substantive platform for citizens to assert their voice in the legislative agenda for the Union. Ultimately, it encourages the Union to formulate policy reforms that are desperately needed by ordinary European citizens.
2. Undemocratic aspects
While the concept of ECI is undeniably ideal, the reality of the situation indicates that the ECI poorly incorporates citizen participation and backfires on democracy. To successfully initiate an ECI, organisers must first successfully overcome rigid legal admissibility criteria. These requirements, inter alia, lay out that proposals for an ECI must not manifestly fall outside the Commission’s powers to submit a legislative proposal to implement the Treaties, thereupon causing the rejection of all ECIs.
Next, proposals have to meet several onerous preconditions — they must be organised by seven organisers from seven different MS, on top of receiving support of at least 1 million signatures acquired from a minimum of a quarter of MS within a 12-month period. Additionally, the Court of Justice has recently ruled that the Commission may refuse to act on any legislative proposal, even if they satisfy all prerequisites. This ruling undoubtedly diminishes the ECI’s reliability, and its effects will take shape in an increase of negatively-based perceptions towards the democracy in the Union’s legislative process.
Furthermore, there is an ever-increasing proportion of legislative acts pre-agreed through trilogues — which have been shown to excessively prioritise output legitimacy at the expense of input and throughput legitimacy. Trilogues are informal tripartite meetings between representatives of EP, Council and Commission aimed at reaching a prompt agreement between the Council and Parliament on legislative amendments. However efficient this may seem, there are many facets to this which are worrying in sustaining democracy. The concerns include the following:
Despite the intricate and time-tested framework of the EU, it is still incapable of ensuring that democracy in the political establishment is properly upheld. While inter-institutional balance is justifiably maintained, the democratic deficit mainly exists intra-institutionally in the EP and the Council. Furthermore, the legislative process, while highly inclusive of national parliaments, still falls behind in providing input and throughput legitimacy through the excessive use of trilogues and in the ineffectiveness and difficulties in using the ECI.
Nonetheless, no matter how controversial or strenuous the journey may seem, the EU’s current stance on democracy must be amended ceaselessly — be it through legislation or case law — to ensure that the voices of the citizens in which it represents is rightfully expressed on a global stage.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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