Alujevic – Nacarino on the EU’s democratic deficit problems

This is a review of the article “The EU and its democratic deficit: problems and (possible) solutions” by Lucia Vesnic-Alujevic and Rodrigo Castro Nacarino.

The issue of “democratic deficit” has been subject to discussions since the beginning of the European Union. Legal scholars discuss democratic deficit in the EU from different angles in the doctrine. As explained in detail below, the article written by Vesnic-Alujevic and Nacarino approaches democratic deficit as an issue of legitimacy and accountability of the European institutions and examines the issue with a focus on the European Commission and the European Parliament. According to the authors, even though the European Parliament is perceived as the only institution that does not suffer from democratic deficit due to fact that its members are directly elected by the citizens of the member states, there is still a democratic deficit in the European Parliament especially because of “citizens’ indifferences” in the EU politics and their lack of participation (lack of demos). In the view of the authors, the EU should become closer to its citizens and enable active participation of Europeans especially in the legislative process. In that sense, new “solutions” such as deliberative forums –perhaps through the internet – which will enable citizens to participate in democratic processes are recommended by the authors to remedy the lack of participation and to strengthen “direct” democratic legitimacy. Furthermore, the institutions especially the European Commission should be more accountable to the other institutions especially to the European Parliament, and transparency in the EU should develop.

Democratic Deficit and the European Parliament

The authors have the view that there is a democratic deficit in the EU specifically with regards to the European Parliament. The authors maintain that there is a “distance” between the citizens of the various member states and the EU because of the low percentage of the citizens’ participation in the EP elections and consequently the EU agenda. The authors connect the concept of legitimacy and accountability of the EU with the notion of democracy. As a result, the authors claim that the lack of democracy will result in, or has already resulted in, the loss of legitimacy for the European Parliament, and to some extent the EU system. When there is a connection between legitimacy on the one hand and democracy on the other as the authors claim the reasoning becomes dubious.

Democratic Deficit and the European Commission

According to the authors the Commission is the least legitimate and accountable among the European institutions. Its members are not elected directly by the European citizens. In order to make the Commission more legitimate, more accountable and transparent the authors suggest inter alia direct election of the Commission’s president and the right of initiative for the European Parliament and the Council of Ministers. They claim that this would shorten the gap between the European institutions and the European citizens.

Accountability of the Institutions

The Commission is accountable to the EP in two ways: through Commission hearings and the European Parliament’s right to put forward motion of censure of the Commission as a whole. Election is a key event to supply an institution with accountability, and that’s why the authors claim that the European Parliament is more accountable because it is elected by the European citizens.

The Concepts of Legitimacy, Democracy and Accountability

While it is easy to assume that legitimacy has an almost direct connection with the notion of democracy, it is not unproblematic to conclude that there is such a connection between the two concepts. The concept of democracy rests on the notion of the rule of the people, the demos (1). Any subsequent legislation which is adopted by democratically elected body and imposed on the people is thus only acceptable when derived from democracy. However, any state that legislates in a democratic manner – through voting – inevitability encounters a big and natural problem: the people affected by a piece of legislation will disagree with each other and the legislator. Therefore, there is no longer need for unanimity in the legislative process to satisfy the demand for democracy. Democracy, in all modern states, is not the rule of the people, but de facto the rule of the majority.

We strongly hold that a rule that has passed the process of democracy may nonetheless be deemed as illegitimate. A system built around the rule of law will render such a regulation void, even though it might have arisen as the result of democracy. The reason is that enacted regulation binds not only the people but also the legislator. The enforcement of this legislation rests on the courts. There is strong evidence that supports the separation of democracy and legitimacy, elections and the rule of law. As regards as the EU, while it is difficult to determine the exact nature and scope of the notion of legitimacy, at least some level of legitimacy of the EU as a whole must base on the Treaties of the Union. Some principles stated in the Lisbon Treaty can be seen as a “legitimate” ground for “legitimacy” of the EU. As mentioned in case Van Gend en Loos (Case 26/62), the sovereign states of the Union have transferred “some” of their powers onto the Union, which is an expression of principle of conferral stated in Art. 5 TEU. As there is no whole transfer of power onto the EU by the member states, the actions of the EU is subject to the principle of conferral. This conferral of powers by the member states must be seen as giving at least some level of legitimacy to the structure of the Union.

Finally, for the European system to work in a way that corresponds to the founding principles of the Union there needs to be some kind of ‘checks and balances’. This applies not only to the principle of democracy but also the principle of equality and the rule of law among others (Art. 2 TEU). This would ensure that institutions could be held accountable for their actions towards one and other and the EU as a whole. However a low threshold for the different institutions to hold each other accountable would make it difficult to arrive at any decisions. In order to achieve a balance there needs to be a separation of power between the various institutions (2).

The European Institutions and the Notion of Legitimacy

Upon separating democracy and legitimacy, a question related to the article arises: does the supposed democratic deficit reduce, or even remove, the legitimacy of the European Institutions? We contend that this is not the case. The legitimacy of the institutions of the European Union does not rest solely on the connection with democracy. In fact many institutions, not only within the Union but also within the member states can be seen as an indication of a deficit. One such institution would be the Courts, both the ECJ and the national courts. The reason for this is because it is difficult to directly connect the decisions of the courts (the wording of the judgement) and democracy in a strict sense. Rule of law demands an independent court, not a court affected by the will and interests of a democratic assembly. An independent court is a prerequisite in order to ensure that the laws that have been passed are followed.

A legitimate state requires a much more elaborate analysis of not only democracy but also some substantial elements such as enforcement of rule of law and protection of fundamental human rights to a great extent. In other words, upholding the legitimacy of a state also rests on the scope of recognized and protected rights such as the right to free expression, the right to an efficient remedy and a fair trial. Restricting assessment of legitimacy solely to “existence” of democracy could render many aspects of the EU as illegitimate and undemocratic, a piece in the deficit. However, as we stated, such a conclusion must be seen as incorrect.

The EU has its own sui generis structure and formation, and it has its own understanding of democracy as an “institution”. In the context of the interrelations between the Council of Ministers, the Commission and the European Parliament, the EU has developed its own system of democracy, which does not conform to liberal parliamentary democracy or federal state, consensus, deliberative or corporatist models (3).

The Possible Effects of Increasing the Influence of the European Parliament

Separating the concepts of legitimacy and democracy does not entail that there is no such thing as a democratic deficit. Furthermore, the low percentage of participation in previous elections for the European Parliament is definitely a problem. For the purpose of this article, we will define the problems that the authors observed concerning a potential lack of Parliament powers as “structural democratic deficit”. Additionally, we think of the low percentage of participation in elections as “effectual democratic deficit”. According to the authors, the structural deficit would yield the effectual deficit. That means that the lack of power in the Parliament would create a lack of incentive for the voters to participate in the democratic process. If one connects the notion of legitimacy with that of democracy, it is inevitable that one would also increase the Parliament’s power as increasing the Parliament’s power would increase democracy, and thereby also increasing legitimacy. Increasing legitimacy would make the voters more interested in EU affairs according to the authors.

However, as we have now pointed out, legitimacy and democracy are two separate concepts. The EU can be perfectly legitimate while still having a problem with voters’ participation. The separation between structural and effectual deficit highlights this approach. A democratic connection when increasing power does not automatically entail that it is legitimate. The balance of power, the accountability of institutions and the principal of legal certainty and the rule of law are equally vital in ensuring the legitimacy of an institutional process, including the EU. Indeed the authors speak of a lack of “democratic legitimacy”.

Addressing the Effectual Deficit

So far, our critique has been clear. Our observation yields a connection between the notion of legitimacy and democracy, and this connection comes with a host of problems as shown earlier in this our article. However, the authors observe a variety of issues, one being the low percentage of participation in the EU election. We maintain that this issue is a real problem. The proposed solutions by the authors (such as an increase in Internet activity of the Parliament) could very well be necessary in order to increase the activity of voters, and thereby lowering the effectual deficit.

The Commission traditionally represents the interest of the EU (4). If the citizens of the EU in turn would elect the President of the Commission, it is difficult to imagine that the sole interest of the Commission would remain in the EU. There would be an additional interest in ensuring the will of the majority that has elected the President. We believe that this possible additional interest could gravely shift the balance of power. It would not likely affect the citizens’ participation in the general elections, but it would dramatically affect the functional aspects of the Commission and its relation with other institutions within the EU.

Maybe Europeans simply disagree, and we should not automatically assume that low percentage of voting interest automatically mean that the system is out of balance, or maybe the notion “European spirit” used by the authors is a better issue to focus on? Get people to be more interested in the EU hardly must mean that the Parliament must get more power or that the Commission should be directly elected by the European citizens.

By Christoffer Carlberg, Emilia Björksved, Kajsa Freijd and Rebecca Ivarsson.

(1) Azman, Kübra Dilek, The Problem of “Democratic Deficit” in the European Union, International Journal of Humanities and Social Science, Vol. 1 No. 5, May 2011, p. 243.

(2) Schütze, Robert, European Constitutional Law, Cambridge, 2012, pages 83-84, 86-87.

(3) Schütze, p. 67.

(4) Schütze, pages 123-125.

 

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One Response to Alujevic – Nacarino on the EU’s democratic deficit problems

  1. The lack of “demos”, also called the structural democratic deficit, within the EU institutions is really the great problem of the modern democracies. As this article analises brightly, our democracies are not the people’s power but the power of the majorities. In the history of the European Union when the consensus between Member States was the general rule in order to pass legislative acts, it became practically impossible to legislate, so now the ordinary and special legislative procedures are used to create laws, like in many of the modern constitutional regimes. The system of consensus and dissensus, as a tool to reach universal agreements in each one of the created legislative acts, has been replaced in our age for the system of majorities and minorities, a development towards federalism described by James Madisson et al in the text “The Federalist”. However, this system is not the only option. Today, complex deliberative meetings that are ruled by the consensus/disensus are being held, as for example the “Foro de Sao Paulo” in Latin America.

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