Essay: Is there a democratic deficit in the European Union?

Article 10(1) of the Treaty on European Union (TEU) establishes that the functioning of the European Union (EU) is founded on representative democracy. In order to be democratic, it is necessary that the EU is representative, accountable and transparent. The structure of the EU through its institutions and in its law making processes can be seen to contribute to the democratic legitimacy of the EU. However, there are claims that there is a democratic deficit, especially given the varied interests that the Union must consider in its actions.
The EU has a unique legal order, and has declared itself to be ‘sui generis’ in nature. This idea is evident in Van Gen den Loos where the Court of Justice declared that the EU is a ‘new legal order’ which is different to any other international organisation. The EU has a unique legal order in the sense that it must strike an inter-institutional balance, and so requires a unique system of institutional checks and balances. This is because, on the one hand, it is made up of sovereign member states whose interests must be represented at the EU level. On the other hand, the EU’s treaties contain union objectives and so its interest must also be represented. As the EU treaties give the EU power to enact binding legislation in various policy areas, it is also imperative that the interests of EU citizens are considered. The concept of inter-institutional balance has political foundations, as the unions institutional framework seeks to represent differing interests across the EU’s institutions. It also has legal foundations, and article 13 TEU makes it clear the the EU’s institutional framework has to serve a variety of different interests – the EU itself, member states and citizens.
Maintaining an inter-institutional balance requires the EU to balance intergovernmentalism and supranationalism. Supranationalism is the idea that there is an overarching aim of pursuing a collective European interest, rather than the interests of individual member states. This means that, in practice, member states might not always retain control, as decisions can be made in the common interest. Intergovernernmentalism is a model whereby relevant government actors from different member states work together on issues of common interest, but as representatives of their own state. This means that each participating state can be said to be acting primarily in their own national interests, and their national sovereignty is not directly undermined. Balancing these two competing ideas and the interests of those involved creates a challenge for the EU to be sufficiently democratic.
The institutions of the EU are defined in article 13(1) of the TEU, all of which serve to meet the different interests within it. The composition and functions of the institutions can be seen to have elements contributing to the EU’s democratic legitimacy, however, it is argued by some that as a whole, the institutions are too focused on executive and elite power with little democratic control.
The Council of Ministers is an institution which primarily represents the interest of the member state. Article 16(2) of the TEU states that it consists of a representative of each member state at ministerial level. It can be argued that as the ministers are from the member states, rather than elected by union citizens on the basis of European issues, this gives too much power to the national executives. However, as the ministers are directly elected at national level this could be deemed as indirectly contributing to the democratic legitimacy of the EU. Furthermore, article 16(8) TEU establishes that the Council of Ministers must meet in public when deliberating and voting on draft legislative acts. This ensures the transparency of the Council of Ministers as an EU institution, enhancing the democratic nature of the Union by allowing citizens to be fully informed and be able to hold it to account.
However, the use of qualified majority voting (QMV) in the Council of Ministers, can be said to threaten the democracy of the Union. Article 16(3) TEU states that the council shall act by a qualified majority except where the EU treaties provide otherwise. QMV is used in around 80% of policy areas, and whilst it does increase efficiency in decision making, it can also allow the collective interest to override the view of an individual member state. This raises questions about autonomy and sovereignty of the individual member states, and Barry argues that this has implications for democracy as the aggregation of majority preferences does not necessarily express the collective will of the people. Additionally, any decision can be blocked by a minority of member states if they comprise at least 4 member states representing at least 35% of the EU population under article 238(3)(a) of the Treaty on the Functioning of the European Union (TFEU). This can be seen to give too much power to individual states, so is not representative of the collective interest. However, the Council could still claim democratic legitimacy, given that it aims to avoid decisions by qualified majority voting where possible. Scharpf argues that QMV has ‘weakened’ the representative democracy of the Union, but the search for consensus solutions, and the fact that blocking minorities are so infrequent mean that the Union can still claim democratic legitimacy.
The European Parliament is an EU institution which primarily represents EU citizens. Defined in article 14(2) TEU, it is comprised of 750 directly elected members, plus its president, with seats allocated on a basis of degressive proportionality. This system, used for allocating seats across the member states, ensures that citizens from all member states are represented by Members of the European Parliament (MEP’s) regardless of the population size of that member state. The treaty provision establishes that each member state has a minimum of 6 MEP’s, but no more than 96. This safeguards the democracy of the Union, as if the seats were allocated on the basis of traditional proportionality, it could mean that countries with the largest population would have a louder voice in making decisions, than smaller countries who could have no seats. However, the use of degressive proportionality does not mean there is equal representation within the European Parliament. For example, Germany has 96 seats which is the maximum number of seats allowed, which equals 12.7% of all seats in parliament. However, Germany has a population of 80 million, which is 16% of the EU population so it is still underrepresented in terms of seats in the European Parliament. This can be compared to Malta, who is overrepresented in Parliament, with 0.3% of the seats, but only 0.08% of the population of the EU. The discrepancy between these two scenarios means that the value of votes is unequal. For example, a vote in Malta is worth more than a vote in Berlin. Habermas explains that degressive proportionality has an ‘immediate restrictive effect’ on smaller countries, especially where there is competition among the interests of member states. This has to be weighed against having traditional proportionality as an alternative, which could be even less democratic, as smaller member states would get few, if any, MEP’s and would risk having minimal representation in Parliament.
The European Commission primarily acts in the interests of the EU, and under article 17(4) TEU consists of one national of each member state, its president and the high representative of the Union for Foreign Affairs and Security Policy. The interests of the member states are reflected in the Commission to an extent, there being one commissioner per member state, however article 18(2) TEU states that the commissioners must remain independent and must not take instructions from member state governments or institutions. As an institution, the European Commission is frequently accused of being too technocratic and elitist, as commissioners are entirely unelected at EU level, but hold significant power to initiate and shape Union legislation, suggesting it is not sufficiently democratic.
The European Commission can be argued to be contributing to the democratic deficit of the Union as it is staffed by unelected EU officials. This can be viewed as creating too much ‘behind the scenes power’ which means its decisions and actions are not accountable to the Unions citizens. However, this can be compared to the UK, where civil servants perform a similar job, and are also unelected, but are directed by a politically accountable minister. Within the EU, the commissioners are the equivalent of the minister, but they are unelected. This suggests a lack of accountability within the Commission, but Moravcsik has argued that the democratic legitimacy of the Union cannot be assessed in comparison to national perspectives as it has a unique legal order and so cannot have the same system of checks and balances as individual states.
While commissioners are not directly elected by citizens, under article 17(8) TEU, the commission as a whole is responsible to the directly elected representatives of the EU’s citizens in the European Parliament. The European Parliament can vote on a motion of censure in relation to the entire commission, which if carried will mean that the whole commission must resign. For example, during the Santer Commission there was evidence of fraud and mismanagement in relation to several individual commissioners. The European Parliament adopted a motion of censure to vote the whole commission out, but this threat led to the mass resignation of the Commission, announced by the Commission president, Jacques Santer on the 15th March 1999. This is an all or nothing approach but there is also a framework agreement between the Commission and the European Parliament, whereby the European Parliament can express no confidence in an individual commissioner and the Commission President will ask that individual to resign or explain otherwise. These procedures indicate that the Commission has some democratic legitimacy as it is being held to account by elected representatives of citizens.
The President of the European Commission, the high representative and other members of the Commission are not directly elected by EU citizens. However, they are subject as a body to a vote of consent by the European Parliament, who are directly elected and seek to primarily represent the interests of citizens, under article 17(7) TEU. For example, in 2004, the European Parliament thought that the controversial views on homosexuality and the role of women held by the Italian Commissioner, Rocco Buttiglione, was problematic as he was nominated to be a Commissioner with a designated portfolio for justice, freedom and security. As the European Parliament couldn’t vote down one individual commissioner, which is due to the ‘all or nothing’ motion of censure as seen above, they threatened to vote down the entire Commission. In order for Parliament to agree to the Commission, Buttiglione has to be replaced. This is evidence of a democratic and elected institution, being the European Parliament, exercising its powers from the treaties, over a supranational element of the Union, which can be seen to grant democratic legitimacy to the Union.
The European Council consists of the Heads of State or Government of the member states, with its President and the President of the Commission, as defined in article 15(2) TEU. It is intergovernmental in nature, and it primarily represents the interests of the member states. As it consists of heads of state or government from member states, it can be seen as democratic, as these people are directly elected at the national level. However, following the Treaty of Lisbon, it is now presided over by the President of the European Council, who is a supranational actor and does not act as a representative of a member state.
Article 17(7) of the TEU requires that the European Council, when deciding its nominations for the President of the European Commission, must take into account the elections of the European Parliament. This is called the ‘spitzenkandidaten’ process, and requires the European Council to nominate somebody from the political grouping in the European Parliament that got the most votes. This can be seen as democratic since it is the citizens of the EU indirectly electing the Commission President. This process has been politically controversial, with David Cameron asserting that it upsets the inter-institutional balance of the treaties, which he says are explicit that the nominations should come from the European Council itself. Furthermore, this process depends on citizens voting in the European Parliament elections, but many do not know that their vote will be used in the process of deciding Commission President, and the fact that there are no Pan-European parties mean that citizens often vote based on national issues. Turnout for elections in May 2014 was only 42%, so its arguable how representative this really is, though it has been seen that the nomination of a lead candidate within the spitzenkandidaten process has itself increased the propensity to turn out.
Under article 17(2) of the TEU, the legislative acts of the Union can only be adopted on the basis of a Commission proposal, unless the treaties provide otherwise. This provides cohesion to legislation, however, as the Commission is unelected it can be argued that it isn’t sufficiently democratic. Follesdal and Hix support this argument, and say that the fact that legislation is initiated by the Commission, as an unelected body, means that there is no contestation as regards political leadership or direction in the EU, which is evidence of a democratic deficit. However, while the Commission does have a monopoly of initiating legislation, the European Citizens’ Initiative defined in article 11(4) TEU allows European citizens to become involved in the process of initiating legislation, enabling direct democratic participation. Under this initiative, citizens can request the Commission to submit proposals where there are more than one million citizens requesting this from a significant number of member states. Although this appears to be a movement towards democracy within EU legislation, the European Commission is not obliged to initiate the legislation requested, and Dougan says that the thresholds necessary are so onerous that it is likely that relatively few citizens will actually be able to engage with this instrument.
Under the ordinary legislative procedure, outlined in article 294 TFEU, the European Parliament and the Council of Ministers co-legislate. The European Parliaments involvement represents the citizen’s interests and enhances the EU’s democratic legitimacy as it increases citizens control over the legislative process, through the involvement of their directly elected representatives in the Parliament. In this process there are 3 stages – a first reading, a second reading, and the Conciliation Committee. However, there is an agreement to try and reach a decision at first reading and between 2014 and 2016, 75% of proposals were agreed at this stage. This raises questions as to how democratic this is, as agreement at first reading means there is less time for scrutiny. Additionally, in order to achieve an agreement at first reading, the European Parliament and Council agree to meet at trilogues. These are normally comprised of 2 or 3 MEP’s and a permanent representative from the member state with the rotating presidency in the Council. While intended to ensure an agreement is reached, it can be argued that this effects the ‘substantive opacity’ of the Union and undermines the treaty requirement for an open public dialogue and are less democratic and accountable given that they happen behind closed doors. Nevertheless, recently the General Court has held that the European Parliament must, in principle, grant access on request to documents relating to ongoing trilogues, which suggests a movement towards transparency in the legislative process.
Secondary legislation can also be adopted by EU under the special legislative procedure, as included in article 298(2) TFEU. This also gives the European Parliament a democratic influence in the legislative process, but to a much lesser extent, as they can only consult or consent to legislation. Nonetheless, where the Council is required to consult Parliament, they must be given a genuine opportunity to express their opinion, which should be duly taken into account.
Initiatives such as the ‘yellow card procedure’ introduced in article 12 of the TEU has strengthened the involvement of national parliaments in the legislative process, which increasingly represents the interests of member states and their citizens. This allows national parliaments to issue a ‘yellow card’ where they feel that proposed EU legislation does not respect the principle of subsidiarity. By allowing national parliaments to question this, it increases the democratic legitimacy of the union as it maintains the balance between intergovernmentalism and supranationalism, as it means that the EU can only act where their actions cannot otherwise be performed by the member state. This safeguards the sovereignty of member states and reinforces the idea that decisions should be taken as close to citizens as possible.
In conclusion, while the EU must balance its own interests, those of its member states and their citizens, efforts to ensure that its institutions and law making processes are sufficiently democratic are clear within the provisions of both the TEU and TFEU. However, the democratic legitimacy of the Union as whole is questionable, given that in its response to recent crises, such as the sovereign debt crisis, it has bypassed the democratic role of the European Parliament, as directed under the treaties.