Homewood: EU Law Concentrate 4e
The European Union has been criticized as 'undemocratic'. Critically evaluate the accuracy of this assessment by reference to the composition of the EU institutions and their respective powers in relation to law-making within the EU.
It is important when answering essay-style questions that you not only demonstrate knowledge of the relevant area, but also that you demonstrate an ability to analyse that knowledge.
You should begin by exploring the meaning of 'undemocratic' or 'democracy'. Definitions may vary, but are likely to include the idea that democracy relates to the engagement of citizens with political and law-making processes. This operates through their right to select and reject, in the electoral process, the persons whom they consider will best represent their interests in formulating law and policy.
It is worth noting that the accusation of a ‘democratic deficit’ within the EU goes beyond the institutions themselves. Thus, voter apathy in European elections, perceived complexity, etc. are all relevant and recognition of such enhances the answer. However, the focus of the question concerns the institutions and therefore discussion outside of this focus should be kept to a minimum.
The answer clearly requires consideration of each of the EU law-making institutions, the European Commission, the Council, and the European Parliament, including their composition and powers.
- The European Commission: not directly elected by citizens. Describe its composition, how Commissioners are appointed. Next consider the Commission's input into law-making and its power to initiate and draft proposed secondary legislation. You are likely to conclude that the Commission is not democratically appointed but has considerable power in the making of law and policy in the European Union, indicating that its composition and functioning is undemocratic. However, you may also consider the supervision of the Commission by other institutions which have greater democratic accountability.
- The Council: not directly elected by citizens. Do citizens nonetheless have some influence over the appointment of members of the Council? Describe the composition of the Council and how Council members are appointed. You might argue that there is an element of democracy in appointment in that the Council comprises ministers of the Member States who in many cases will have been indirectly chosen through national democratic processes. As to the Council's powers in law- and policy-making, these are considerable. Consider in outline the main law-making procedures, pointing out that the Council has extensive input into the framing of secondary legislation, as well as the ultimate power to approve it. You should also consider how far voting in the Council can be considered democratic. This entails discussion of unanimity, simple majority, and qualified majority voting and the extent to which these voting methods provide for representative decision-making.
- The European Parliament: the only EU institution that is directly elected by Union citizens but, arguably, the institution that holds the least power. You should evaluate the input of Parliament into the main legislative procedures recognising in particular, the development of what is now known (since Lisbon) as the ordinary legislative procedure. Thus, it is important to trace the development of Parliament's power from the beginnings of the EU. Originally, Parliament had the right merely to be consulted on secondary legislation but its input was increased as the cooperation and then the co-decision procedures were introduced and as co-decision (now ordinary legislative procedure) was gradually extended to more policy areas. You should also discuss the control that Parliament exerts over the executive through its power to approve the President of the Commission and the Commission; its power, by vote of censure, to dismiss the entire Commission; its powers of scrutiny, including the ability to question Commissioners orally or in writing; and its power to reject the annual budget.
- In conclusion: the fact that the European Parliament, the only directly elected EU institution, holds the least power supports the view that the EU is lacking in democracy. However, with the introduction of co-decision, its extension to more policy areas by amending Treaties and its current status as the primary procedure for legislative developments (as reflected in its renaming as the ordinary legislative procedure), this democratic deficit is being gradually addressed.
LAW LLB EU LAW “Following the Treaty of Lisbon 2009, it is no longer appropriate to suggest that the European Union suffers from a democratic deficit”. Discuss. Student No: 149005725 Word Count: 1,391 words (including footnotes, excluding bibliography and front page) The democratic deficit is the idea that the EU lacks democracy in its legislative institutions. The Laeken Declaration 2001 “officially launched the EU’s recent and contentious effort to promulgate a ‘constitution’ ... [and it] identified the major internal challenge as that of bringing the EU ‘closer to its citizens’ and providing ‘better democratic scrutiny’ over its activities.”1 Thus one of the central aims of the Treaty of Lisbon 2009 is to increase democratic legitimacy in the EU in terms of creating a more democratic system, and expand the involvement of citizens in the running of the EU. 2 Prior to the Treaty of Lisbon 2009, the European Parliament lacked strength and there was too much uncontrolled executive power at the expense of national parliaments. 3 Thus the Treaty succeeds in improving transparency of the legislative process and enhancing the powers of national parliaments by granting them the ability to require the Commission to review legislation.4 However, although the Treaty of Lisbon did reduce the democratic deficit to some extent, it simply did not go far enough. It will therefore be argued institutional change arising from the Treaty alone was not enough to considerably reduce the democratic deficit of the EU, as there still remains a lack of connection between the EU and its citizens in that voter turnout remains low and the effective reduction of the democratic deficit requires citizens to deepen the integration process. One aim of the Treaty of Lisbon 2009 is to increase the strength of the European Parliament. The European Parliament has increased over the years due to previous treaties, the European Court of Justice, and its own power or being the only democratically legitimate source in the EU.5 Articles 9-12 of the Treaty of the European Parliament provides a means of enhancing the democratic legitimacy of the EU, largely through changes to the European Parliament.6 However, it still does not have sufficient power and authority within the EU and if it were to hold more power, its democracy would be enhanced. The Treaty of Lisbon gives the European Parliament the ability to compel the Commission to review proposed legislation.7 Where there had previously been a co-decision making procedure for enacting legislation, the Treaty of Lisbon changed this to a standard procedure. Furthermore, under Article paragraph 7 of the Treaty, the European Parliament elects the President of the Commission unlike previously where it could only approve the proposed candidate.8 Increasing the legislative powers of the European Parliament does, in theory, seem to be an effective means of decreasing the democratic deficit in the EU. However, despite the increase in the European Parliament’s legislative powers, it remains weak in comparison to the 1 Robert O. Keohane et al., Democracy-Enhancing Multilateralism 63, (International Organisation, 2009) 1 3. 2Lorna Griffiths, 'A Critical Analysis Of EU Member State Sovereignty Under The Treaty Of Lisbon. Sovereignty v Democracy'. 3 Craig and De Burca, EU Law: Text, Cases And Materials (OUP 2015). 4 <http://euroacademia.eu/wordpress/wpcontent/uploads/2012/11/Hristina_Runceva_and_Milena_Apostolovska_Democr atic_Deficit_of_the_EU_after_the_Lisbon_Treaty.pdf> accessed on 18 November 2015. 5 <http://scholarship.claremont.edu/cgi/viewcontent.cgi?article=1029&context=urceu> accessed on 19 November 2015. 6 Lorna Griffiths, 'A Critical Analysis Of EU Member State Sovereignty Under The Treaty Of Lisbon. Sovereignty v Democracy'. 7 Megan Campbell, 'The Democratic Deficit In The European Union' (2009) URCEU. 8 <http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-andcomments/title-3-provisions-on-the-institutions/86-article-17.html.> accessed on 16 November 2015. other legislative bodies in the EU such as the Council and the Commission. 9 Although the European Parliament now requires the Commission to review or withdraw legislation, the Commission is not bound to do so and therefore the greater legislative powers still remain with the Commission. Thus where the Lisbon Treaty has increased the powers of the European Parliament to a certain extent, it is not enough to significantly reduce the democratic deficit. Prior to the Treaty of Lisbon, there was an increase in executive powers at the expense of national parliaments. Article 4 of the Protocol on the Role of National Parliaments in the EU gave a very limited interpretation of the powers and role of the national parliaments.10 The Lisbon Treaty aims to expand this and Jean-Claude Piris notes that “the fact that the European Parliament did not fully succeed in clearly and incontrovertibly establishing itself as providing the solution for the democratic legitimacy that the EU needs, was one of the reasons why the Lisbon Treaty gave a role to national parliaments in the EU legislative procedure.”11 Therefore, the Treaty of Lisbon gave the national parliaments a greater role in the legislative process by expanding their rights to information and allowing them to prevent the use of the ‘simplified revision procedure’ where the European Council could decide to change from unanimity to QMV. In order to prevent this, the national parliament concerned must oppose within six months of a proposal being issued.12 Under the Treaty of Lisbon national parliaments have been granted the opportunity to formally monitor the application of the principle of subsidiarity (where the EU may only act where individual countries have acted insufficiently). Post-Lisbon, national parliaments ‘collectively’ monitor subsidiarity. However, subsidiarity arguably does not improve democracy and accountability within the legislative process as there is a very limited window for review of legislative proposals. The national parliaments have 8 weeks to do so, but over 800 legislative proposals are drafted per year. This simply does not allow enough time for the national parliaments to review effectively thus not allowing democracy to be enhanced. Furthermore, whilst the Treaty allows national parliaments to exert greater control over the EU legislative process, the combined workload of domestic legislation as well as EU legislation can overburden national parliaments and would have to undergo organisational changes in order to cope with the increased workload and effectively carry out their EU scrutiny function. Perhaps the most significant way in which the Treaty of Lisbon has not successfully reduced the democratic deficit is its failure to engage citizens. The Treaty of Lisbon enacted the European Citizens’ Initiative which enables one million EU citizens from at least one quarter of the Member States to require the Commission to initiate a legal act based on an area that Member States have conferred powers onto EU level. 13 This in essence places citizens on the same ‘level’ as the European Parliament. However, EU voting turnout remains low and Tony Barber stated that “Underlying everything is the frustration of Europeans that they exert less influence than ever over the decisions of 9 House of Commons Research Paper 14/25, 'The European Union: A Democratic Institution?' (2014). 10 <http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/protocols-annexed-to-thetreaties/656-protocol-on-the-role-of-national-parliaments-in-the-european-union.html> accessed on 16 November 2015. 11 Jean-Claude Piris, The Lisbon Treaty: A legal and political analysis, (Cambridge University Press 2010) 1. 12 Lorna Griffiths, 'A Critical Analysis Of EU Member State Sovereignty Under The Treaty Of Lisbon. Sovereignty v Democracy'. 13 <http://ec.europa.eu/dgs/secretariat_general/citizens_initiative/index_en.htm> accessed on 19 November 2015. elites, both in their own countries and in Brussels”.14 Any attempt at engaging citizens in the workings of the EU seems to be shunned by the prevailing view that the EU essentially lacks democratic legitimacy. In 1979 the average EU turnout was 61.99%, but in 2014 after the Treaty of Lisbon had been in force for quite some time, the turnout was a mere 42.61%.15 This therefore shows that despite the Treaty of Lisbon creating institutional changes and enhancing the role of national parliaments and citizens within the EU, there is still a disconnection with EU citizens. Therefore the current institutional post-Lisbon structure is not effective in promoting democracy. The Treaty of Lisbon has arguably changed the institutional structure of the EU in order to reduce the on-going democratic deficit, namely through the strengthening of the European Parliament and the weakening of executive powers. Whilst these reforms have been effective in promoting democracy within the legislative process and the institutions as a whole, the Treaty has simply not done enough to be able to say that it has removed the democratic deficit. Arguably the fundamental issue is that of the inability to engage citizens in the workings of the EU. EU citizens remain disconnected from the EU and there has been little attempt to engage them in the various aspects of the EU. It is citizens who deepen integration and without effective understanding of the EU, democratic legitimacy remains. Therefore, it cannot be said that the Treaty of Lisbon has removed the democratic deficit from the EU, but has merely reduced it, and it will take more than institutional changes to reduce it completely. Bibliography 14 Financial Times, (2 January 2014). 15 <http://www.ukpolitical.info/european-parliament-election-turnout.html> accessed on 21 November 2015. Books: Paul Craig and Grainne De Burca, EU Law: Text, Cases And Materials (OUP 2015) Websites: http://ec.europa.eu/dgs/secretariat_general/citizens_initiative/index_en.htm http://euroacademia.eu/wordpress/wpcontent/uploads/2012/11/Hristina_Runceva_and_Milena_Apostolovska_Democr atic_Deficit_of_the_EU_after_the_Lisbon_Treaty.pdf http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-andcomments/title-3-provisions-on-the-institutions/86-article-17.html http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/protocols-annexed-to-thetreaties/656-protocol-on-the-role-of-national-parliaments-in-the-european-union.html http://scholarship.claremont.edu/cgi/viewcontent.cgi?article=1029&context=urceu http://www.ukpolitical.info/european-parliament-election-turnout.html Articles: Jean-Claude Piris, The Lisbon Treaty: A legal and political analysis, (Cambridge University Press 2010) Lorna Griffiths, 'A Critical Analysis Of EU Member State Sovereignty Under The Treaty Of Lisbon. Sovereignty v Democracy'. Robert O. Keohane et al., Democracy-Enhancing Multilateralism 63, (International Organisation, 2009) Megan Campbell, 'The Democratic Deficit In The European Union' (2009) URCEU. Government Documents: House of Commons Research Paper 14/25, 'The European Union: A Democratic Institution?' (2014). Newspapers: Financial Times, (2 January 2014).