Democracy within the European Union
I.Introduction
Nowadays, it is increasingly claimed that there is a democratic deficit within the European Union (EU): in other words, the bodies of the EU suffer from a lack of democratic legitimacy and seem inaccessible to European citizens because of the complexity of their operation. The EU is said to be of little or no interest to European citizens, many of whom perceive it as suffering from a lack of democracy (despite the fact that a large proportion of European citizens claim to be pro-European). Symptomatic of this is the constant rise in power of Eurosceptic and extreme political movements at the very heart of the European area: the Italian, Hungarian and Polish governments are currently led by the local extreme right (Fratelli d'Italia, Fidesz and Prawo i Sprawiedliwość respectively), while the extreme right is part of the government in Latvia and Finland. Moreover, the allegation that the EU suffers from a lack of democracy was at the heart of the discourse that drove many Britons to vote in favour of Brexit in 2016.
The article is structured as follows. The first section (II) is concerned with the extent to which the claim that the EU suffers from a democratic deficit is true. The second section (II) focuses upon the prospects for improving the problem identified in the first part.
II. The truth of the allegation that the European Union suffers from a democratic deficit
a.The concept of democracy
First and foremost, I need to define the concept of 'democracy'. Democracy is, in essence, power by the people, id est the demos. It is an old idea attributed to the Greeks, and was revived in the eighteenth century with the French Revolution and the independence of the United States, and spread throughout Europe in the twentieth century. Democracy involves elections to choose representatives who will exercise power on behalf of the people, as well as political pluralism. One of the crucial characteristics of democracy is the clear separation of executive, legislative and judicial powers. Democracy also implies a system that guarantees citizens respect for fundamental freedoms. With this in mind, I need to identify what could prevent the Union from meeting the criteria of a democratic system.
b. The European Union's position on democratic criteria
In theory, the EU ticks all the boxes of a democracy. There is an executive power (the European Commission), a legislative power (the Council and the European Parliament) and a judicial power (the Court of Justice). Moreover, there are elections, not just for MEPs every 5 years, but also for the governments whose representatives sit on the Council, and even indirectly for the President of the European Commission.
Added to this is the fact that in 1993 the Member States decided that all States wishing to join the Union had to undertake to respect democracy, through compliance with the Copenhagen criteria: id est the rule of law, fundamental freedoms and minorities.
However, the EU is criticised for a number of things when it comes to democracy. Some Member States flout the fundamental freedoms guaranteed by the ECHR (since the Lisbon Treaty it has been compulsory to be a signatory of the tough Convention to be a member of the EU). This is notably the case of Hungary, recently condemned by the European Court of Human Rights (ECtHR) in Alhowais v Hungary (no. 59435/17), and of Poland recently condemned in R.M. and Others v. Poland (no. 11247/18) by the same Court. Under Article 7 of the Treaty on EU, European lawyers had devised a mechanism for penalising a Member State that did not respect the fundamental values of the Union by depriving it of its right to vote in the European Council. No one dared use it one day, and yet it had to be used: first in 2017 against Poland, and in 2018 against Hungary. But the mechanism turned out to be a damp squib because of the unanimity rule (in other words, all the Member States have to agree to go through with the mechanism). Neither Poland nor Hungary would agree to be flogged. This creates a legal impasse. This unanimity rule considerably weakens the Union's democracy. The citizens of the Conference on the Future of Europe did not want this rule. But to change this rule, you have to amend the Treaties, which is long and tedious, and the Member States don't want it. To get round this obstacle, the Union decided to target the Member States' wallets: if a State respects the rule of law, it will receive all the European funds to which it is entitled; if it does not, the money is blocked until the said State gets back on track. This has been a source of tension with the Member States concerned, but seems to be bearing fruit, as in Poland, where the government has agreed to reform its system. Targeting the Member States' wallets therefore seems to be a solution, but only a partial one, as although discouraging, the two States mentioned above have reiterated.
Secondly, one of the main points targeted by those who criticise the EU for its democratic deficit is citizen participation. On the one hand, the commissioners are politically appointed individually by Member States, for five years under Article 17(3) TEU. On the other hand, the Council is composed of representatives of the Member States (each Member State has one representative). Under Article 16(2) of the Lisbon Treaty each representative must be 'at ministerial level, authorised to commis the government of that Member State'. These representatives are therefore national politicians. The way commissioners and representatives on the Council are appointed means that in the exercise of their functions they think in terms of their own national interests rather than in terms of the mass: the European community as a whole. But above all, this configuration radically excludes the citizens who have no say in the appointment of the two institutions. It should be noted that the Council of the EU shares legislative and budgetary power with the European Parliament (EP) and concludes international agreements on behalf of the EU. As for the Commission's role in the legislative process, it has an initiating role. Indeed, the Commission is able to make proposals on matters provided for in the TFEU, or, of course where provided for in Article 352 TFEU conferring general power on the Commission.
Thirdly, the members of the EP, the third institution at the heart of the legislative process, have been elected by direct universal suffrage since 1979, with the aim of making it more democratic and legitimate on the one hand, and creating via the EP a direct link between the EU institutions and the national electorates through direct universal suffrage on the other. However, the turnout in the European elections shows how this is only a theoretical facade, a mirage. Indeed, in 2019 only 51% of European citizens had voted. Moreover, the turnout figures for some countries in the year are absolutely staggering: 22.7% in Slovakia, 30.7% in Portugal, 41.9% in the Netherlands. This lack of participation reflects the disaffection of European citizens for the European institutions.
This abstention is explained by the fact that citizens generally remain pro- European, but they do not understand the political system. The functioning of the EU is rather complex and seems inaccessible to the demos (is est the population). The democratic deficit is also due to the lack of clear and objective knowledge about the functioning of the EU institutions, understandable by everyone, which adds to the feeling of remoteness, of detachment from the EU. The population of the EU is clearly disinterested in the EU. They do not feel that they have an effective means of rejecting a 'government' they do not like or of influencing lawmaking. In facts, the lack of transparency of the EU is a factor in the existence of this fact, but also and above all an important argument of the criticism concerning the democratic deficit. Indeed, the EU legislative process is seen by many as showing a great lack of transparency due to the complexity of the legislative procedures. This complexity makes it difficult to hold decision-makers accountable, on the one hand, but also, and more importantly, to engage with the demos. The difficulty of access to documents is also probably an important part of the problem because of the institutional policy of confidentiality which EU bodies have been reluctant to depart from, as in Carvel v Council (case T-194/94) where the court confirmed that the Council can consider whether it is appropriate to refuse access to documents to citizens. The EU's restrictive approach to the right of access to documents of EU citizens was confirmed in WWF (UK) v Commission (case T-105/95). It should also be noted that the Council takes decisions that affect all citizens in all Member States, while it has absolute power, holds meetings behind closed doors (de facto without any transparency), and is not subject to mandates. Added to this is the fact that the European Council cannot be held accountable, making it a truly problematic institution in terms of the Union's democracy.
Furthermore, I must necessarily address the question of European political parties, which have a considerable role to play in the exercise of democracy within the EU. However, this is limited by the national constraints endorsed by the European political parties since, although they claim to be European, they are concerned with national issues. Empirically, rather than being a genuine organisation that would control national parties on a national scale, being national divisions of the central European organisation, the European political parties are constructed as a conglomerate of the national parties of the Member States.
So there are democratic flaws in the EU. These flaws give us food for thought about the Union: Is a political organisation truly democratic when it is not supported by its demos and only partially elected by it? Is a legislative system in which sovereignty is not in the hands of the people really a democratic system? The answer tends to be no. Nevertheless, the European Treaties have sought to strengthen democratic legitimacy.
c. Improvements made to strengthen democracy within the Union
First of all, as I have said, in 1979 direct universal suffrage was introduced for the EP. The Union thus began to give legislative powers to the EP, and increased its power considerably over time. Increasing the power of an institution elected by universal suffrage is by definition increasing the democratic legitimacy of the
institution in question, but also of the whole organisation. The Lisbon Treaty was a major step in this direction, as it introduced co-decision powers for the EP (see Article 14 TEU). To this end, the ordinary legislative procedure was established (see Article 289 TEU). This procedure grants the EP a veto in designated areas (about 70% of the EU's areas of competence), allowing it to be on an equal footing with the Council in the legislative procedure. The areas covered by this procedure are those previously covered by the cooperation procedure, which had been successively extended by the various treaties. Moreover, the Maastricht Treaty gave the EP a power of initiative. However, its power is limited in technical areas where EP can only request policy initiatives (see Article 225 TFEU). Moreover, since the Treaty of Lisbon, the EP's power has also increased in international negotiations with non- EU countries (article 218(10) TFEU).
Furthermore, the Maastricht Treaty and subsequently the Lisbon Treaty have also given the EP a means of control over the Commission, via the appointment within it. Indeed, the Lisbon Treaty provides that the President of the Commission is elected inter alia on a proposal from the European Council, which the EP may approve or reject. If the EP refuses, the Council will nominate candidates until the EP finds a suitable candidate. After being elected, the President of the Commission, together with the European Council, will select the commissioners. The EP can then approve or reject the Commission as a whole. Thus, the EP, an institution elected by direct universal suffrage, has a great deal of control over the Commission's appointment. This strengthens the democratic legitimacy of the Commission, but above all of the institutional triangle. Nevertheless, in practice, the main problem remains, albeit mitigated: commissioners and Council members are not elected by universal suffrage, whereas the Commission and Council are two of the three institutions playing a crucial role in the legislative process.
Still on the Commission, the Maastricht Treaty established via Article 11(4) TEU that citizens can invite the Commission to submit a proposal. However, this has its limitations, as some extremely restrictive conditions must be met, making the hypothesis of such a procedure almost utopian: there must be more than one million European citizens making the request and they must come from 'a significant number of Member States'.
In addition, the Lisbon Treaty introduced a mechanism for enhanced monitoring of compliance with the subsidiarity principle. This mechanism allows national parliaments to defeat Commission proposals that do not respect subsidiarity. One example is the requirement to state reasons for legislation under Article 296 TFEU. Under this article, there is a duty to give reasons for legislation. If this duty is breached, the Court of Justice may annul the legislation in question in a judicial review. The statement of reasons implies the legal basis of the act, allowing the appropriate legislative procedure to be identified. This is particularly important since the weight of EP clearly depends on the legislative procedure. This allows the EP to ensure that its power is maintained, and the national parliaments to ensure that the principle of subsidiarity is respected.
Then, the institutions have sought to simplify legislative procedures, and to strengthen access to documents in the process without altering the institutional balance. Therefore in 2003 (and revised in 2016) there was the Interinstitutional Agreement between the Council and the EP on Better Law-Making. This agreement aims to improve legislation through evolutions, alternative mechanisms. Each year the Commission publishes a report on Better Law-Making outlining the measures that are or have been implemented at the end of the agreement. Moreover, the members of the Council now meet in public when they discuss or vote on legislative proposals. There have also been many other inter-institutional agreements, such as on common guidelines for the quality of drafting of legislation and on a fast-track working method for the codification of EU texts. The EU's approach to the right of access to EU citizens' documents was also relaxed in Rothmans International BV v Commission (case T-188/97) and in Mattila v Council (case C-353/01P). The Lisbon Treaty has also provided for a principle on access to documents via Article 15(3) TFEU. But under Article 15(3) TFEU this access is subject to limitations for public and private interests although there are nine categories of exceptions under Article 4 TFEU. The Court of Justice rejected the idea that transparency is a general principle of EU law in Hautala v Council (case C-353/99P). In addition, despite all the efforts made by the EU to be more accessible and transparent, the fact remains that knowing how to find, understand and use its texts is still mostly a matter of knowing the EU.
European political parties are also concerned by the improvements achieved through the European Treaties, in particular the Treaty of Rome and the Treaty of Lisbon. Thanks to the introduction of reflections on the perfection of representative democracy within the EU and the participation of European political parties in strengthening the role of the EP, the two Treaties have accentuated the position of European political parties. This objectively constitutes an improvement in democracy within the EU, since political pluralism is an essential element of a democratic system (see Centro Studi sul Federalismo, Institut für Europäische Politik, Istituto Affari Internazionali, Notre Europe et The Federal Trust ‘La démocratie au sein de l’UE et le rôle du Parlement Européen’).
It is clear, therefore, that the EU showed many symptoms of a democratic deficit, including a lack of citizen participation in various forms and a lack of transparency. Successive treaties have attempted to remedy this situation by conferring ever greater powers on the EP, endowing it with control mechanisms, but also on national parliaments, increasing transparency, citizen participation and the role of European political parties. The treaties were a success, but a partial one, since there are still certain points on which the Union can be criticised from a democratic point of view. Today, the EU is indeed a democratic system, or to be more precise, a system of representative democracy at a supranational level. In reality, the idea put forward that the Union suffers from a democratic deficit is above all a feeling, an impression.
d. The anti-democratic feeling
There is undeniably an anti-democratic feeling within the EU, but as I have shown above, the EU is indeed a system of representative democracy at a supranational level. In reality, this feeling can be rooted elsewhere than in solid arguments.
First of all, the EU is quite complex. The way in which this supranational organisation works is for many European citizens rather convoluted, whether it concerns the law-making process within the Union, the allocation of European funds, the appointment and/or election of individuals working within the EU the relationship between European law and the national law of the Member States or the rights of European citizens.
However, this complexity is obviously not solely responsible for the anti-democratic feeling; it is above all European disinterest (intrinsically linked to the complexity of the Union). If many European citizens are unfamiliar with the workings of the Union, it is because of its complexity, but also and above all because they are simply not interested. There are several reasons for this lack of interest.
On the one hand, the way in which European elections are organised does not allow European citizens to properly grasp and understand the many issues at stake in the Union. In fact, the European elections are exploited by politicians in the Member States, using them as a platform to raise national or even local issues. Politicians now see the European elections as a punishment vote in which the majority in power is the one punished. This logically leads the majorities in the various Member States to avoid mobilising voters and campaigning for these elections. This is particularly the case in France. In the other case, where the European elections take place at the same time as other elections, as is the case in Belgium, the European elections are hidden.
The media are also a factor. They give very little visibility to the activities of European politicians, thus creating a feeling of remoteness among European citizens, who do not identify politically at European level because of the lack of division between European political groups.
Then there is the question of enthusiasm. Debates in the EP seem far less interesting than national political debates. Where national debates are seen as genuine entertainment and make the news in France or Spain, European debates seem slow and lacking in any real verbal jousting. The obvious reason for this is that translation work has to be done, since different languages are spoken, and so the liveliness of the debates is severely damaged.
All these factors have the effect of creating a feeling among the European population that there is a lack of democracy within the Union. To go further, this is even the cause of the rise in euroscepticism, a major argument put forward by far-right groups.
e. Summary
In short, the EU used to display many of the symptoms of an anti-democratic system, such as the weak role played by citizens, the limited role of the only European institution whose members are elected by the European demos (id est the EP, and the lack of transparency. The Treaties have strengthened democracy within the Union, particularly by reinforcing the powers of the EP, but there is still room for improvement. However, it would appear that the EU is now a democratic system.
III. Prospects for improvement
The EU is therefore a democratic system, but it is not perfect in this respect. Indeed, there is a certain democratic fragility within the Union: for example, it lacks an electoral political system that would give the Union a direct link with the European electorate. This fragility is problematic insofar as an organisation requiring its Member States to be democratic should be at least virtually beyond reproach. This calls for improvements, over and above what has already been done via the various European treaties. This part therefore moves on to the improvements that can be made to make the EU even more democratic than it already is.
a. Communication to be restored
The first important point to improve is communication. Giving European citizens a better understanding of the Union, and restoring communication with them, would enable the European demos to have a better knowledge and understanding of its institutions, to have a higher turnout in European elections, to have a greater overall interest in the EU, and above all for European citizens to have a real feeling of belonging to the EU (stronger than is already the case, at least). This means providing better information on European political life through a variety of channels. There are, of course, the traditional media such as newspapers, television and radio. But we must not limit ourselves to these media and turn to new means of communication such as Twitter, Instagram, Facebook, Youtube, Twitch and many others. It is through these platforms that the new generations will have the greatest impact and that, in the long term, European citizens will know the EU better and will have a real link with it. On the one hand, it is up to the European institutions and European politicians to explain the role of the EU, how it works, the role of European politicians and the European projects and issues at stake. On the other hand, it is up to national politicians to refocus the debate and attention on the Union. To this end, it would be a good idea to broadcast European debates on television channels in each Member State, as well as on Twitch and Youtube, either live or as webcasts (or both). It would also be useful to help journalists make links between what is happening in the EU institutions and local situations in each Member State. In addition, it would be a good idea to introduce a subject dedicated to the EU in secondary schools throughout the Member States, the aim of which would be to strengthen the understanding and connection of future European citizens to the EU. This subject would consist of a course on the common history of Europe, the history of the EU, the workings of the EU, its challenges and its future.
In this way, communication would be restored, citizens would know the EU better and would be more attached to it. This would make it possible to reduce or even eliminate the anti-democratic feeling that exists, and concretely to increase the rate of participation in European elections, reinforcing the democratic legitimacy of the EU.
However, restoring communication and providing European citizens with more information is far from sufficient to perfect democracy within the EU. Indeed, it is incorrect to treat the problem of democracy within the EU as a matter of simple interest and understanding on the part of European citizens, since this problem has been raised since the Maastricht Treaty in 1992. Other answers and solutions must therefore be found, in addition to restoring communication and giving more education to the demos.
b. A redefinition of European institutions and concepts
Today, to perfect democracy within the EU our institutions need to be redefined, as do European concepts. These institutions and concepts were designed for a past reality, and are therefore obsolete for the current reality of European citizens, especially young European citizens. They need to be redefined to ensure that they meet the expectations of today's European citizens, and above all that they are more democratic, but also that they are easier for these same citizens to understand. In other words, the institutions must be more democratic, they must correspond to current expectations and the citizens must be able to identify the EU's projects fairly easily through its institutions, but they must also see even more clearly that the Union is democratic.
On the one hand, it is crucial to increase the prerogatives of the EP, as the institution whose members are elected by universal suffrage and therefore the main vehicle for democracy within the EU. Although it already carries some weight, as illustrated by the blocking of the SWIFT agreement with the United States, there is still some room for manoeuvre.
We also need to look at the European Commission, whose Commissioners are politically appointed. We need to ask ourselves whether its effectiveness depends on this politicisation, and whether it would not be judicious for the Commissioners to be elected by universal suffrage in the same way as the Members of the EP, or simply the President of the Commission. It is also possible that if the Commission were even more politicised than it is, this would be to the detriment of the Commissioners' skills. Ultimately, the fact that the Commissioners are not elected by universal suffrage is very important for the preservation of their competences. What's more, if the President of the Commission were elected by universal suffrage, this would add complexity to the EU, which lacks clarity. So, given the delicate nature of his case, it is preferable for the Commission to remain intact as it is at present, even if this would be an obstacle to perfecting democracy within the EU.
Secondly, as far as the European Council is concerned, it is crucial that European citizens are gradually given greater access to documents, that all its meetings are not held behind closed doors, and that this institution, which has a great deal of power, is recognised as being accountable to the EP. This would make the Union clearer, more transparent and, overall, even more democratic. The European Council is also, in spite of itself, the illustration of a major problem in the EU: the principle of exacerbated intergovernmentality, which leads to national egoism within the Union itself, which in turn leads to a certain immobility. This principle prevents the Union from being a genuine common project, which is therefore more the sum of the wills of each Member State. To remedy this, we need to redefine national sovereignty on a European scale. It is therefore essential that there is an institutional reform that puts in place the concepts of accountability to the EP and European sovereignty. This reform would also simplify the workings of the European institutions, the decision-making procedures, the European principles and the European project. In particular, this would enable citizens to identify who is responsible. It would also be interesting to define what a MEP is, so that it is clear whether a MEP is the representative of all European citizens or the representative of the citizens of his or her own country. So there needs to be a new treaty, or a European constitution. This European constitution would make it possible to reshape the EU to make it more readable, and by extension even more democratic.
At the same time, it is imperative to define a genuine European project, a vision for the EU, so that European citizens can identify with the Union and feel that their vote is worthwhile. This project must be consistent with the reform I mentioned earlier.
c. European federalism as a solution
Herman Van Rompuy, the former European Council President, said at the High Level Group Conference on European Democracy: 'A more democratic EU requires more legislative powers for local and regional authorities and a permanent dialogue with citizens'. The idea behind this sentence is that the EU must change the way it is organised to be more democratic, to move towards an organisation in which each of the Member States would have greater autonomy, would be sovereign in their own areas of competence and would share constitutional powers with the central European body. This is the idea of federalism, a little-known concept which, in fact, gives rise to a certain mistrust of the federal philosophy. In such a system, the EU would no longer draw its democratic legitimacy from the diplomatic relations between the national governments of the Member States, but rather from the democratic relations between individuals among European citizens. In short, federalism is a concept that would draw the Union's legitimacy directly from the will of its citizens, the antithesis of hyper-centralisation, which draws its legitimacy from the will of national diplomacy.
On the one hand, a federalist EU would imply that institutions elected by universal suffrage would be entrusted with power. It would also mean an end to diplomatic governance, which is manifested in the use of unanimity, which enshrines the dictatorship of the minority. Democracy implies respect for the majority principle, and unanimity therefore runs counter to the democratic ideal, which federalism resolves. The use of unanimity is even more serious insofar as economic balances of power are put forward in Europe, and such a system favours the law of the economically strongest (in other words, the richest), and by extension a certain hegemony, whereas the Union needs to be united. As well as needing to be united, to be federated, the Union needs to be effective, and unanimity is paralysing and prevents fundamental freedoms from being protected in accordance with the will of the European demos. Federalism is therefore the solution for achieving the democratic ideal (or at least perfecting democracy within the Union) and greater efficiency.
Federalism would then make it possible to better understand and deal with local issues (which are currently managed solely at national level), and citizens would feel better listened to since it would become undeniable that the EU was taking up the challenges that affect citizens on a daily basis. Federalism is ultimately a system in which citizens can project themselves, a system in which citizens would see the Union as the immediate and obvious solution. This would encourage citizens to invest more in the EU, giving it even more democratic legitimacy.
Furthermore, the argument that federalism is a system that would alienate the freedom of state democrats is a fallacious one. In fact, a federal EU would be even more respectful of the identities, diversities and freedoms of the States than is a hyper-centralised system. In fact, unlike hyper-centralisation, federalism is a system that considers that the democratic ideal is not to be found at national or European level, but rather at local level. Like Athenian democracy, the more localised a democracy is, the more it takes account of the individual.
Thus, for the EU to be more democratic than it already is, it needs to turn to federalism, which would create a more consistent area of freedom that would only concern itself with what the lower levels are not able to do on their own, while not dispossessing local and state freedoms.
d. Summary
To sum up, to perfect European democracy it is imperative to restore communication (so that the population has a better knowledge and understanding, and there is a real European feeling) as well as to reform the European institutions and concepts (to make them more democratic and better correspond to current expectations and needs). However, the best way would be to set up a federal EU, which would enable the Union to move towards the democratic ideal.
IV. Conclusion
The first part of this article showed that the EU has many shortcomings in terms of democracy, which the European Treaties have been able to correct, making the Union a truly democratic system. The anti- democratic feeling that some people currently have is mainly based on an impression.
However, this does not take away from the fact that the European Union can do better, that the EU can be even more democratic. And that is the whole point of the second part, which discusses the various ways in which European democracy can be perfected. These include restoring communication with European citizens so that they have a better understanding and knowledge of the Union, as well as redefining European institutions and concepts to make them more democratic, but above all establishing a federalist EU that would put an end to the last remaining obstacles to the democratic ideal.