Assessing Integration Legislative Processes

Introduction

Europe has been in integration process since the end of the Second World War when the first steps were taken towards integration with the Schuman Plan, which led to the establishment of the first real supra-structure in the world, this being the European Coal and Steel Community. The process of integration within Europe went on in the subsequent decades and saw the establishment of the European Economic Community and the European Union (EU). In many ways, the integration process has been unique and has seen the European countries come within a single and complex legislative and executive framework of the EU. However, the EU integration has also come under intense pressure post the 2007-2008 financial crisis as well as the recent British exit (Brexit). In part, the pressure on EU integration and the doubts as to the future of the EU comes from the increasing criticism of the EU as being undemocratic in its legislative process. There is a question on whether the EU institutions that make law, including, the European Parliament, European Commission, and the Council of European Union, are democratic enough or whether there is a growing democratic deficit in the EU, which puts pressure on EU member states and makes some states consider exit from the EU as in the case of the UK. The recent Lisbon Treaty (), which came into force in 2009, brought the European Economic supra-structures under the EU. The European Union was created by the Maastricht Treaty, while Lisbon Treaty formally merged the three pillars of the European Community, which are, European Parliament, European Commission and the Council of the European Union, into a single entity. The EU institutions share competence with the national counterparts in some areas and enjoy exclusive competence with others.

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The Lisbon Treaty also made significant changes to the legislative procedures within the EU institutions, which have implications for the democratic legitimacy of decision making within the EU. This essay will critically analyse with reference to relevant Treaty provisions, pertinent case law, and academic commentary, the roles of European Parliament, European Commission, and the Council of European Union, in development of legislation within the EU. The essay also assesses whether the changes made to the legislative procedures by the Lisbon Treaty have improved the democratic legitimacy of decision making within the European Union. In order to do this, there is an extensive discussion on democratic deficit literature in the context of the EU. The principal inquiry in the essay is whether there is a democratic deficit in the EU with regard to legislation development and how far the Lisbon Treaty responds to and corrects this democratic deficit. It may be noted that the Lisbon Treaty includes provisions on democratic principles in Title II. These will be discussed in the essay.

Democratic Deficit in the EU Institutions with regard to Lawmaking

In the context of the EU, democratic deficit may be defined as the relationship between the EU with the Member States and their citizens; although it may be stated that democratic deficit is a complex concept and its definition has been subjected to contested viewpoints.

The concept of EU democracy is contested, primarily because of two reasons, which are related to the normative democracy concepts and the application of these concepts to the EU as a system sui generis, and the democratic challenges faced by the EU as an advanced industrial democracy. The core meaning of democracy is the principle of autonomy, which is seen in three contexts: (i) significance of the political institutions as techniques or mechanisms for popular control and protection; (ii) the process of voting as a deliberative process for translating public interests into collective decisions; and (iii) intrinsic quality of the participation of the people in the democracy.

The brief discussion above demonstrates the significance of the participation of the people or citizens in the decision making and the role of the institutions as mechanisms for translating public interests into collective decisions. In other words, democratic deficit is related to the lack of flow of influence from the citizens to the government.

There are generally two political conditions or concepts that are included in the term democratic deficit: first, a condition where the key democratic institutions of the society are under-developed; and second, where the key institutions are present but they do not function in an effective democratic manner. In the latter situation, the lack of transparency and accountability and citizens’ participation in decision making are the reasons why there is a democratic deficit. It has also been argued that there are certain institutional deficiencies within the EU that shows that there is a democratic deficit within the EU. These institutional deficiencies relate to electoral and party system, and the transfer of national competencies to the supranational European level.

In the context of the EU, what the above discussion would imply is that there is either an absence of key democratic institutions within the EU, or that there are key democratic institutions, but these institutions fail to work in an effectively democratic manner. This can be further explained with reference to the five conditions that are related to or may narrow the scope of democracy deficit. These conditions are explained in some detail below.

The first condition requires that the citizens have the perception of being self-governing, or in other words, the citizens believe themselves to be the authors of their laws (albeit through their chosen representatives). In the context of the EU, this would mean that the citizens of the Member States have the perception that they are the ones making the laws through their states’ representation in the EU.

The second condition requires that there is some public control over the administration of the laws that are made through their representatives, which means that the citizens exercise their control over the administration of the laws. In the context of the EU, this would mean that the citizens of the Member States are able to exercise some control over the administration of the laws made by the EU institutions.

The third condition requires that there is a political equality, implying an equality of vote as well as equality of voice. In the context of the EU, this would require an equality of the Member States in the voting as well as the negotiations on the laws that are made within the EU.

The fourth condition requires that there is a right to seek explanation by those who are overruled as to why their opinions or ideas did not count in the law-making process. In the context of the EU, this would mean that the law-making process, which sees the voices of those in dissent would also include a process by which the reasons for not counting these voices are also explained to those in dissent.

The fifth condition is that of an existence of demos or people in the democracy. In the context of the EU, the final condition is difficult to satisfy because the EU consists of 27 different countries which have their own people. One commentator has remarked on the lack of democracy in terms of the lack of a European people by saying that the participation of citizens in the law making process is the “lifeblood” of democracy and the EU therefore “suffers from anaemia and is in desperate need for a remedy. For more than a decade there is an active debate over the democratic or legitimacy deficit of the EU.” The criticism of the EU in this specific context is that the EU does not involve the citizen’s participation in decision making within its institutions which would be a necessary component of a participatory and deliberative democracy within the EU framework.

That the EU lacks democracy on the basis of the above mentioned conditions is clear because the above mentioned conditions are more appropriate to a country rather than a supra-national organisation like the EU; however, this may also mean that the basis for understanding the democracy in the context of the EU, may be different. Nevertheless, the argument that there is a democratic democracy in the EU and that this deficit is finally beginning to impact the integration process, and even posing a threat to it, is only strengthened by the recent Brexit vote in the UK, for which democratic deficit is being stated as one of the deciding factors.

The link between democratic deficit and the integration process in the EU becomes relevant because the EU institutions have seen an increase in their power, while there has been a corresponding decrease in the powers of the national parliaments within their own jurisdictions. The increase in the powers of the EU institutions started in the 1980s and were effected through ‘reform treaties’ in the EU, with the Lisbon Treaty of 2009 being the latest in the series of such reform treaties. Understanding the role and powers of the EU institutions is central to assessing whether there is a democratic deficit in the EU and how far the Lisbon Treaty has been able to respond to this deficit.

The Role and Powers of the EU Institutions

The EU institutions have been assigned expanding roles and powers while the roles and powers of the national institutions have been subjected to a corresponding decrease in the last three decades, which has opened up the discourse on the democratic legitimacy of the EU decision making process. At the core of the discourse on democratic legitimacy of the EU decision making process lies the gap between the institutions of the supranational EU on the one hand, and the citizens of the EU Member States on the other hand.

In general, the gap between the EU institutions and the EU citizens is attributed to two key factors, these being the dispossession of the national institutional powers and the structural conditions in the EU which make the participation of the citizenry difficult. These factors are explained at the outset to provide the background in which the role and powers of the EU institutions may be assessed.

The national institutions of the EU Member States have found themselves to be increasingly dispossessed of their powers; at the same time, reform treaties within the EU have expanded the powers of the EU institutions, thereby contributing to the gap between the EU institutions and the EU citizens, and opening the EU to a possible democratic deficit. The issue is compounded by the lack of compensation at the EU level for the loss of the national institutions’ powers. In other words, there is a lack of national parliamentary control in the decision making processes within the EU institutions. The EU Parliament plays a smaller role in decision making process within the EU, while the Council of the European Union and the European Commission play a wider role in this decision making process. The EU Parliament is the legislative organ of the EU, while the Council of the European Union and the European Commission are the executive organs of the EU. However, the smaller role played by the Parliament in comparison of the other two organs make the issue of democratic deficit a real issue. In order to understand this, a brief explanation about the nature and composition of the EU Parliament is appropriate. The EU Parliament is the most diverse body in the EU, consisting of 750 members from twenty eight states within the EU membership. The EU Parliament is also the most transparent of all EU institutions, which there being more than twenty committees that conduct their business in public meetings and offer opportunity to reach political agreement between the Member States.

This level of membership, transparency and public participation is not found in the other executive organs of the EU. Despite being the smaller and an executive organ of the EU, the European Commission has gradually and systematically become more significant within the EU. The European Commission has become the most influential body within the EU over the last two decades. On the other hand, the EU Parliament has not seen an increase in the powers and has not seen an increase in the participation in the European elections. Apart from the EU Parliament and the European Commission, there are other important EU institutions, which include the European Council, the Council of Ministers, the Court of Justice, the European Court of Auditors and the ECB.

Of the EU institutions that are not involved in the lawmaking, the European Court of Justice is one of the most prominent, being the principal judicial arm of the EU and having expanded its powers to the extent that the national courts are no longer dispositive on the issue of the remedies available to the individuals under the EU law. Over time, the EU law has come to be accepted by the ECJ as superior to domestic law. The ECJ has held that the law made by it on the EU law is superior to the national courts. This is also an important consideration on the relationship between the EU and the citizens.

Coming now to the second factor responsible for the gap between the EU institutions and the EU citizens, which is the structural framework of the EU that makes it difficult for the EU citizens to access EU, it may be noted that the size and the structure of the EU is such that it is practically difficult, even impossible for the citizens to access the EU. As access to the EU is structurally difficult, questions as to the democratic deliberation and participation in decision making become important. The issue here is that EU citizens despite being the constituents of the EU, do not have any say in the decision making process within the EU institutions and the institutions do not have an accountability to the citizens. To some extent, the issue was responded to in the Article 10 of the Treaty on European Union (TEU), which provided

“Citizens are directly represented at Union level in the European Parliament. Member States (MS) are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national parliaments, or to their citizens.”

The above provision required that citizens were represented in the Parliament as well as the Council through representation by their Heads of States and governments. As the national governments have some control over the EU agenda in the executive institutions, it may be argued that the EU is accountable to the citizens. However, the national governments and the EU Parliament do not have direct influence over the European agenda.

The Lisbon Treaty of 2009 has made several changes in the EU institutions’ roles and powers that have implications for the democratic decision making within the EU and may serve as responses to the criticism regarding democratic deficit in the EU institutions. The Treaty contains provisions that are aimed at reinforcing democracy in both its participative and representative contexts. The representative democracy is strengthened by empowering the European Parliament and increasing participation by the national and regional chambers. Participatory democracy is improved by establishing new participatory mechanisms, such the European citizens’ initiative, and by opening new channels of communication and information. The Lisbon Treaty provides that the European Parliament is composed of representatives of the Union’s citizens who are elected for five years by direct universal suffrage in a free and secret ballot. This is to ensure that there is representation of the citizens in the most democratic institution of the EU. The Lisbon Treaty also increases the democratic control of the European Parliament over the Commission and the Council or the comitology process which distinguishes between two kinds of non-legislative acts, which are the delegated acts and the implementing acts. The European Parliament has been given a co-decision power for the adoption of the rules relating to the Commission’s exercise of implementing powers. The caselaw also shows how the delegated and implementing powers are exercised. In the case of Parliament v Council, the CJEU held that the essential rules governing the matter in question must be laid down in the basic legislation and these cannot be delegated as these concern the political choices that are to be decided by the legislature. In National Iranian Oil Company v Council, the court held that the Article 215 of the TFEU does not preclude a regulation adopted on the basis of that provision from conferring implementing powers on the Commission or the Council. In Sweden v Commission, it was held that the Commission must comply with the deadlines fixed by the co-legislators and adopt the delegated matters within deadline dates. In European Parliament v Commission (“EURES Case”), the court held that the Commission must comply with the essential general aims pursued by the legislative act and adopt delegated law that is necessary or appropriate for the implementation of that act. These cases indicate that there is a greater responsibility on the Parliament to ensure the democracy by making basic law.

The Citizen’s Initiative is to be seen in the context of Article 10.3 of the Lisbon Treaty, which provides that every citizen has the right to participate in the democratic life of the Union through the “citizens’ initiative”. Article 11.4 provides the guidance on the implementation of the citizen’s initiative, which is that one million citizens can invite the European Commission to “submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties”.

Article 11 also requires the EU institutions to inform citizens and representative associations their views in all areas of Union action and to consult with parties concerned under Article 11.3. The aim of this provision is to increase the transparency in the EU decision making process. Political debate and participation is also required under the Lisbon Treaty. The European Parliament and the Council are to meet in public when considering and voting on a draft legislative act in order to ensure political debate and participation under Articles 15.2 and 16.8 respectively.

The national parliaments are also bestowed with certain rights and powers in order to respond to the criticism of democratic deficit, with the rights being in the nature of ‘information rights’, the right to object to EU acts on grounds of subsidiarity (art. 5 and Protocol 2), and participation rights. Information rights relate to the right to receive information directly from the EU institutions under Article 12 of the Lisbon Treaty.

The purpose of these provisions is to ensure the reduction of democratic deficit in the EU. However, despite the efforts of the Lisbon Treaty, the democratic deficit may not be as easily narrowed. The European demos do not really exist for there to be a real democracy in Europe. The European Parliament’s powers are expanded in order to include more democracy, but the Parliament still remains “at best, a junior partner of the Council in the legislative process, with its influence further diminished by the relatively independent status of the Commission.”

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Conclusion

The Lisbon Treaty responds to the democratic deficit criticism in the EU discourse by increasing the participation of citizens through the citizen’s initiative and also by increasing the powers of the Parliament. However, these changes are not sufficient to respond to the democratic deficit as the real problem is that the citizens in the EU cannot directly participate in the decision making in the EU. There is also a lack of demos in Europe, which goes to the heart of democracy deficit in the EU.

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