Essay: Are EU institutions sufficiently democratic in decision making & functions?

Christopher Lord asserted that ‘the draft treaty establishing a constitution of the European Union contained a section which proclaimed that the Union shall be founded on representative democracy’1. Thus, this suggests that from the outset the European Union institutions (EU) have functions that seek to be democratic, but whether in practice the Institutions are ‘sufficiently democratic’ is debatable. However, the idea on whether the EU institutions and law making process is sufficiently democratic stems from the view of there being a ‘democratic deficit’. The institution may appear to be democratic because of the significance of the unelected European commission who have such an influence in legislation which has been exclaimed continuously by British politicians in support of Brexit calling them, ‘unelected bureaucrats’. Also, the way in which the European Parliament elections are not convincingly legitimate due to the low turnout of voters. Despite, the strength of the arguments in support of the EU being undemocratic they are flawed. The EU institutions exercise indirect democratic control, whilst also satisfying the elements of democracy which are; equality, transparency and citizen participation, which will be further analysed in the latter part of the essay. Additionally, the institutions have shown to become even more democratic since it was drafted due to the Treaties. Thus, the EU institutions and the law making process is sufficiently democratic, especially when considering that the EU has to be accountable for 28 states who all have different interests.
The structure of the European Parliament (EP) caters to the people, by taking into account the range of interests of the 28 member states. The EP is degressively proportional in representation which makes sure that the largest member states do not get the most MEP’s. Degressively proportional representation satisfies the equality element of democracy, in order to make sure that everyone is equally represented. This also shows how the EP has developed over the years and have become even more democratic due to the treaties such as Lisbon and Maastricht. The Maastricht treaty introduced co-decision and gave the EP an obdurate ultimate right to veto a legislative proposal by an absolute majority which enhances the EU’s inter-institutional checks and balances which is democratic itself. Therefore, when considering the gradual development of the EP, you can go as far back as 1955 to show the views of how the European parliament should be elected. Belgian Socialist MP Pierre Wigny said in a debate in the Coal and Steel Community Common Assembly that a directly elected European assembly ‘would not create a shared sense of belonging amongst voters’2. As of 1979 the EP has been directly elected which is a fundamental part of the democracy of the institution. This emphasises that the way in which the EP is structured now, will be further improved over the years and become even more democratic. But being directly elected, emphasises that it is a ‘sufficiently democratic’ institution as citizens have a form of participation in the EP which consents to legislation that is proposed by the commission and such powers requires legitimacy.
Moreover, the EP elections requires that everyone is entitled to vote and cannot be discriminated against. However, in practice the elections may not give the legitimacy that the MEPS need, due to the low turnout that it has encompassed over the years. This is shown in a graph where the figures show that the average turnout has fallen from 62 percent in 1979 to 43 percent in 20093. This is significant because in modern democracies turnout is a key measure of citizen participation. This has parallels to Joseph Weiler’s definition of a ‘democratic deficit’ which included the decline in the EP elections turnout as one of the factors4. However, this proposition from Weiler is rather misguided, because nothing specific suggests that low turnout has anything to do with the democracy of the EU. Low turnout in the EP elections could be due to the member states failing to promote the elections to their national citizens, which is a general problem, rather than a problem in which needs to be dealt with by the institutions. This is shown in the Eurobarometer polls of 2014 which showed that people did not abstain from voting in the elections due to their lack of satisfaction with EU democracy. Thus, the EP is legitimate and the turnout does not suggest anything like a ‘democratic deficit ‘which Follesdal and Hix would falsely propose. Yet, the EP still seeks to improve its elections; With the recent plan of the EP and European commission to spend more than 30 million euros on ‘get-out- the vote’ advertising. Which shows that the EP is a ‘sufficiently democratic’ institution which seeks to be more legitimate considering the range of interests it has to cater to, whilst also satisfying the elements of democracy.
In addition, the European Council consists of government of member states and heads of states. The membership of the council is democratic as the government of member states have been directly elected by national citizens. This is significant because the EU consists of 28 states which means that having a membership which has member states representatives allows different views and the broad ‘range of interests’ to be catered to. The legitimacy which is an important element when determining democracy, is evident within the European council. As this essay has exhibited, the EP is regarded as the most democratic institution in the EU, because it is directly elected. Evidently, the current president of the European council is Donald Tusk, who was elected by the EP. This provides legitimacy in the in the European council and further emphasises the democratic nature of the institutions. To further emphasise the democratic nature of the decision making process in the European council, when agreeing on detailed legislation, each minister’s responsibility is to ensure that the legislation is in accord with his country’s interest and objectives. For example, in the United Kingdom, the Prime minster has traditionally reported back to the House of Commons as soon as possible after every meeting of the European Council5. This is also highlighted with the assumption that the office of the European Council President will be occupied by an experienced politician who has previously attained a high office in his/her country of origin6.Thus, because the European council consists of the heads of state such, there is no reason why the institution cannot be regarded as democratic, when legitimate leaders of modern democracies are those making the decisions for the European council.
Additionally, Robert dahl noted that a key characteristic of democracy is a ‘continuing responsiveness of the government to the preferences of its citizens’. Analysis on responsiveness of the council shows that it is ‘far from being universal as the electoral incentives were only strong enough to induce significant responsiveness in about 40% of all observations in the sample’7.However, this doesn’t prove to be significant because it is well documented that responsiveness in domestic politics is similar, therefore, the council shouldn’t be treated any different. Although the European council is a democratic institution, it has been argued that it shouldn’t have power to amend treaties because as we have seen from past treaties such as the Treaty of Lisbon, it can affect the relationship between the member states and the EU. There is also, debate about the democracy of the Quality Majority Voting (QMV), which has been part of the arguments to suggest that there is a ‘democratic deficit’ in the EU. However, despite the lack of direct democracy of the QMV, the council still needs consent from the European parliament. And even if QMV is being used, if the council’s voting is being done by the likes of UK Prime minister Theresa May and French President; Macron, surely any decision being made is of democratic nature, as they are accountable and legitimate. Therefore, the decision making process proves to be democratic, despite having some flaws, the EU institutions prove to be ‘sufficiently democratic’ especially where the European council composes of leaders from modern democracies.
Furthermore, the council of ministers composes of representatives of each member state, which makes the council indirectly democratic as the minsters are those who have been elected by the national citizens. Evidently, Article 16(8) TEU requires the council to meet in public when it votes on a draft legislation. Thus, satisfying transparency which is an element of democracy. However, the problem when analysing whether an institution is democratic, is that most of the time the EU can seem to be democratic by law (de jure), but in practice it may show otherwise. This is showcased in a survey for the democratic audit of the EU, where the MEP’s were asked to indicate how far non transparency and blame shifting were obstacles too accountability, the MEP’ answered 8.57 out of 108. This suggests that the council of ministers may not be as transparent as Article 16 TEU states, which is required in a democracy.
In addition to this, Kantner’s pessimistic particularistic view maintains that there is a lack of European arenas that establish arenas of public communication and link them with decision making9. However, Kantner’s view is rather flawed, in comparison to Fossum’s view asserting that the institutionalisation of the European public sphere is already taking place, which is accurate when considering an institution like the Council of Minister10. In reality major interested parties in Brussels and Strasbourg have gained access to papers and information enabling them to follow and influence the course of private debate within the council. Therefore, the public is involved in the council’s decision, especially when Article 15 TFEU provides for public access to the documents of the EU institutions and openness in decision making. Thus, despite the slight flaws within the council, it cannot be considered democratically deficient, especially where the white paper and all documents have to be forwarded to the national parliaments six weeks before they are put in the council agenda.
The commission is composed of 28 unelected members, with the President being drawn up from a list of candidates from the European council. The significance of the treaty in improving the democracy of the institutions is one that cannot go without notice. The treaty of Lisbon’s article 17(4) TEU states that the members of the commission must reflect the demographic and geographical range of all member states. This is important because it shows that the Commission is representative, especially where the EU has 28 states with different interests to represent. However, the members are not elected, and have powers to propose legislation raises questions over its democracy. But what scholars such as Follesdal fail to acknowledge is that ‘proposing is not the same as deciding’11. The commission enjoys very little autonomous power of decision making in comparison to the more legitimate EP. And the law that the commission proposes is at the instruction of the council. This emphasises that the commission being unelected has democratic constraints to its legislative powers.
In addition, the process which chooses the President of the Commission has improved as of 2014. The Spitzenkandidat process pushes political parties to choose a candidate for the European Commission Presidency, with the party receiving the most votes likely having their choice to take the job. Despite the critique stating that ‘the process strips the council and parliament of their duty to pick the best candidates’. But nevertheless, the process which used- to choose Jean Claude Juncker has increased the legitimacy of the President. The legitimacy of the process is showcased in the EU survey which agrees that it increases the transparency and the legitimacy of the European commission, which are two elements of democracy12. In addition, the commission’s decisions are constrained by article 5(1) which limits the institutions competences, stating that the institution can only provide an act which has a legal basis. As well as that, the national parliaments has great involvement when the commission is drafting legislation. This check on the commission by the national parliaments is from Protocol No.2, which requires the commission to send their draft legislation. By doing this, the national parliaments can vote for or against it. This is significant, because this shows that the national parliaments, who a representatives of the EU citizens has a major input in the commission. Thus, emphasising that the institutions are ‘sufficiently democratic’ and have a democratic form of decision making.
Simultaneously, the Court of Justice of the European Union (CJEU), is important when checking the powers of the institutions, in order to make it democratic. The CJEU is essential in protecting the rights of EU citizens. This shows that the EU institutions are sufficiently democratic, because ‘democracy is not just a matter of ensuring that peoples elected representatives play a full role in the process of law making; democracy is also about protecting the rights of the individual’s13. For example, EU citizens have the right to vote in an election, and it’s the courts job to make sure that right is protected. This is evident in Eman and Sevinger v Den Haag; AG Tizzano stated that the Netherlands giving the right to vote to those residing in non-member states violates the principle of equal treatment14. This emphasises that the court seeks to maintain democracy and also shows that the EU institutions promote democracy in the member states.
Ultimately, the EU institutions are sufficiently democratic, in decision making and functions. However, it is clear that the current debate on Brexit adds questions on the democracy of the institutions. As the majority of the leave campaigners claimed that the EU is run by ‘unelected bureaucrats’. Despite this statement, in reality it is false to make such a proposition. Evidently, in the 2014 the European election for the current commission President, there was very little media coverage of the elections in Britain and the main British parties were not in the EPP, which explains the negative views on the EU. However, the EU has space for improvement, this may include proposals made by the Netherlands lower house (Tweede Kamer), proposing the need to broaden the grounds that parliament can object to EU laws. But nevertheless, the EU institutions are democratic, as they satisfy all elements of democracy and most importantly have checks to their decision making powers.
6.1.2019