This paper will consider the evolution of the legislative process in the EU and to what extend the EU suffers from a democratic deficit. The author also elaborates on the possible suggestions for improvements.
Democratic institutions and the representatives of the people in the EU, at both national and European level have the duty to connect Europe with its citizens. This is the starting condition for more effective and relevant policies. Democratic governance, better involvement, accountability and transparency were proclaimed to be strategic objectives of the Union.[i]
“…Within the existing Treaties of the Union must start adapting its institutions and establishing more coherence in its policies so that it is easier to see what it does and what it stands for. A more coherent Union will be stronger at home and a better leader in the world. It will be well placed to tackle the challenge of enlargement…”[ii]
The institutional structures and legislative process of the European Union reflect the era and political culture in which they were generated. These structures need to be adapted to the current needs of its citizens and the EU enlargement and be adequate with the standards of participatory democracy, preserving the balance of its institutions and its sui generis character.
It can be said that European Union does enjoy sufficient legitimacy for the tasks that it undertakes. The two vital decision-making bodies, the Council and the European Parliament (EP), both result from democratic elections. The Council is composed of the governments of the member states and the European Parliament is directly elected by voters in the member states.
The Commission is not elected but enjoys little self-governing power. Its main role is to propose laws to the Council and to execute policies at the instruction of the Council and the European Parliament. The European Parliament can censure the Commission and has the power to block the appointment of the new Commission.[iii] Legitimacy is widely accepted as being conferred by democratic elections. Nevertheless, legitimacy depends in the end on the individual citizen consciousness and belief that he/she is part of the polity under which he/she lives.
In order to address the questions of the legitimacy of the legislative process one should look at the lawmaking powers of the EU institutions and at the legal and constitutional limitations provided in the EC Treaty and the consequent development of its provisions.
The legislative process is complex and encounters different steps depending on the policies that were debated. It is characterized by consultation procedures, co-decisions and enhanced cooperation. The usual procedure is a proposal issued by the Commission that will be discussed in the Parliament and finally adopt by the Council. But there are variations according to the Treaty and they require specific procedures.
The Council’s power to initiate comes from Art. 208 EC, and provides that the Commission should act regarding issues that the Council consider desirable for the attainment of the common objectives.[iv]
The EP can be also a vehicle for the initiation of the legislative process, according to Art.192 EC. When acting upon the majority request of its members can instruct the Commission to submit a proposal on matters that it consider necessary for the Community to adopt in order to implement the Treaty. The influence of the EP began with the two budgetary treaties of 1970 and 1975 [v], the introduction of the direct elections, respectively the ‘co-operation’ and ‘assent procedures’ and the ‘co-decision’ procedure under TEU in 1992. The Treaty of Amsterdam furthered the power of the EP by eliminating the co-operation procedure, requiring Parliamentary assent. The Nice Treaty strengthened the EP powers of a legislative, budgetary and supervisory nature, by increasing the role of the Parliament in respect to the enlargement process. It is argued though that while the only directly elected institution in the EU has enhanced its power, the problems of democratic legitimacy in the Community remain unsolved.[vi]
The Commission acts alone in rare occasions. According to Art.86 EC “[I]n the case of public undertakings and undertakings to which Member States grant special or exclusive rights..” and “[u]ndertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition..”
In some situation the Council and the Commission may act alone, without the intervention of the Parliament (Articles 26, 45, 49, 55, 57, 60, 96, 99, 104, 133 (2) EC; used for example for the free movement of workers and capital) and upon discretion consult the Parliament. The areas where the Parliament has to be consulted are related to Pillar II and III (Articles 21 and 39 TEU) concerning the general direction of the common foreign and security policy and the policy dealing with judicial co-operation and criminal matters. The topics of discrimination, municipal elections, reinforcing citizenship rights, visas, asylum, harmonization of indirect taxation and others are also based on preliminary consultation.
Perhaps the most important procedure relevant to the question of legitimization of the legislative process is the co-decision procedure. It was introduced in the Treaty of Maastricht and is used for important Community legislation, which requires a jointly approval from all three institutions. The procedure is set in Art.251 EC and is the procedure used for much of the EU legislative process: except for agriculture, fisheries, taxation, trade policies, competition law, and EMU.[vii] It was argued that with Art.251, par.3 [h]owever, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee” the power of the EP is enhanced and the article requires unanimity in the Council if the Council is willing to make amendments to the Commission proposal, while it requires only qualified majority when the Council accepts amendments of the EP.
Finally, a problem of legitimacy arose with the creation of the Comitology regime, related to the delegated legislative power to the Commission, which was authorized to enact more specific regulations in a particular area of agriculture and competition. Concerns were expressed regarding the exclusion of the EP from the process and the equality of access, transparency and openness (primary the objective of making the committee more accessible to the public) and its ethical premises. Article 7 of the Comitology Decision provides that it has the obligation to publish an annual report on the working committees, as well as reference to the documents sent to the EP must be made public.[viii] Another attempt to legitimize the role of the Comitology was the enactment of Article 5a, that allows the EP and the Council to veto a measure created by a Comitology committee. They can object the final draft and prevent the measure to be adopted. To defend this particular action the measure should exceed the implementing powers in the main Treaties, be incompatible with the aim or content of the basic instrument, or be in contrary to the principles of proportionality or subsidiarity.[ix]
The nature of the co-decision procedure to encompass the most important Community legislation means that the EP is becoming closer to the co-equal status with the Council in the legislative process and as depicted by scholars the failure of the EP to receive a power to initiate the legislative process, is emblematic for the meager consequences flowing from the direct democratic mandate.[x] This may be due to the fact that the EC is still not perceived as a State and this would create a power challenge between the EP and the Council, as well dilute the unique position of the Commission conceived as the “guardian of the Treaties and engine room of the Community.”[xi]
The legitimacy of the decision-making process in the EU is characterized by the existing institutional balance, which is evolving in the direction of increasing the power of the EP, with the introduction of the co-decision procedure and with the 1999 Comitology Decision which improved the status of thee EP regarding the delegated legislation. As mentioned earlier the legitimacy of the EU decision- making process is based on the Council – considered to represent the State interests and the EP – representing the interest of the EU people. The Commission is becoming more accountable to the EP and is committed to ensure that the goals of the Treaties are met.[xii]
Suggestions for improvement can be made in different directions, but in order to secure the democratic process in the Community and accountability of its Commission, the EP can be given the power to hold the individual members of the European Commission responsible for mismanagement and dismiss them if necessary.
The decision makers need to gain the confidence of the electorate and convince them that they are acting in the best interest of the party they represent. The demos pass judgment on the government by re electing it or rejecting what has been done and voting for the opposition. This is the basic way that politicians are hold accountable to the public. In this line of thoughts a possible recommendation may be to tie the nomination of the European Commission directly to the result of the European Elections. This may reflect better the political will of the states and create a more coherent European voice.
In order to reach that level of transparency the Parliament, the media, the civil society and non-governmental organizations need to require information from past and current decisions, inquire on different issues and be critical of the mistakes made on its behalf.
An interesting proposal is made regarding the introductions of referendums on treaty change that should be held on a Europe-wide basis on a single Europe day. [xiii]According to these scholars “… a Europe-wide referendum with a double and qualified majority of states and population required in order to ratify any proposed treaty amendment would be more consonant with the concept of European democracy than a series of unrelated national referendums dependent on the discretion of national leaders.”
Of course, any further suggestions will bring the question of what kind of democracy Europe is and wants to be, consequently, which facets of the EU are monitored, the international/intergovernmental ones, dealing with fundamental rules and issues of high politics, where the Member States play the leading role, or are we exploring the supranational aspects of the Union, which best reflect governance and legislation under the EC Treaty itself. The answer of these questions should be the topic of another essay and will not be discussed further.
[i] Commission of the European Communities [Brussels, 25.7.2001, COM (2001) 428 final], EU Democratic Governance, White Paper.
[iii] P. Craig & G. De Burca, EU Law, Text, Cases, and Materials, Oxford University Press, 4th Edition, 2008.
[v] Ibid, See Chapter One
[vi] Ibid, See Chapter Two
[ix] Ibid, See more pp.122-123
[x] Ibid, See more pp.134-137
[xiii] Professor Vernon Bogdanor, On Legitimacy, Accountability and Democracy in the EU, A Federal Trust Report, January 2007