Since economic and trade elements to a political

Since
its’ founding, the aims of the European Union (EU) have shifted from being purely
economic and trade elements to a political Union building on teleological
approach. As a result of this shift in approach institutions have developed and
thus remains, the current structure of the European Union. However, challenges
have subsequently arisen including the distribution of competencies, how
transparent the European Union actually is, and the Democratic legitimacy of
the Institution. I will be addressing the democratic legitimacy of the European
Union and how the elements of power, accountability and transparency are vital
in establishing a more democratic European union.  Democracy is a multifarious concept, which a
fair amount of political frameworks includes. Bullock and Stallybrass define democracy
as “the rule of the demos, the citizen body, the right of all to decide what
are matters of general concern” 1. This definition
does raise questions for example, ‘what’ is of general concern to the public and
how is the concept implemented into the European Union?  The two main types of democracy I will
consider are direct democracy and representative democracy. Within a direct democracy citizens propose, decide, and
change Constitutional laws; initiate referendums; and choose and remove public
officials who are not effectively doing their jobs. In contrast, a
representative democracy is when citizens elect or choose a government official
to represent them. Legitimacy is defined in the Oxford English Dictionary as ‘conformity to the law or to rules’,
whereas from a political standpoint Legitimacy is defined as ‘the acceptance of
an authority which is usually a governing law or system of government.’2

A variety
of treaties created the change in Europe. The ‘Treaties of the European Union’ are a set of international agreements
setting out the European Union’s constitutional basis that is shared between
member states in the European Union. These treaties became
responsible for establishing the various institutions we currently recognise as
part of the EU, along with their remit, procedures and objectives. These
treaties presently govern the EU and its’ members can only act within the rules
granted to them within these treaties. If an amendment were to be made to the
treaties, it would require ratification from all existing member states. To
date there have been twelve major European Treaties, I will be focusing on the
Paris, Maastricht, Amsterdam, Nice and Lisbon Treaties.

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A
representative institution of the European Union is the European Parliament
(EP). Since its formation in 1979 when it was seen as a mere chamber that
consulted in secondary legislation3 the EP has evolved greatly3. These changes, shaped by
developments in the European Community and later the European Union, have
caused much discussion as to whether the institution has become more democratic
since it formed4.
The European Parliament is currently the only institution within the EU that is
directly elected by its EU citizens and so, it can therefore be argued that it
is the most democratic; however, out of the three institutions, it is said to
be the one that holds the least power. When the EP was formed the belief held
at the time was that the directly elected assembly would be more democratic and
therefore, more legitimate in the eyes of the people of the EU. The fact that
this only directly elected EU institution holds the least power supports the
view that the EU is lacking in democracy. 
Consequently, having identified this weakness member states opted to
give the EP more legislative power through a set of treaties subsequently
changing its roles and responsibilities.

One of the
key changes appeared in the Maastricht Treaty. 
It introduced co-decision and gave the European Parliament an ultimate
right to veto a legislative proposal by an absolute majority after two readings
of the Council and European Parliament. 
The democratic deficit was starting to be addressed with a change to the
EP’s status as the primary procedure for legislative developments.  Introduced in the Treaty of Lisbon, according
to the later article
289 of the Treaty on the Functioning of the European Union (TFEU)5,
co-decision has become the ‘ordinary legislative procedure’, consisting of the
joint adoption by the European Parliament and the Council of a regulation,
directive or decision on a proposal from the Commission. The procedure of
co-decision is defined in article 294 TFEU6.
While co-decision was initially introduced to allow EU decision-making to be
more inclusive, accountable and transparent, the procedure has, for the
electorate and rank-and-file parliamentarians, increased informalisation and
seclusion. Notwithstanding
these changes, the European Parliament remained relatively weak compared with
the Council and Commission and subsequently turnout for European Parliament
elections has been consistently low. This argument supports allegations that
the directly elected and more powerful European Parliament does not remedy the
EU’s democratic deficit at all.

Despite several
reforms, the European parliament does not inspire voters7. Election turnout, a key
way to measure political engagement, was increasingly low with only one third
of British citizens voting in 2014. The low turnout is largely thought of as a gauge
of political disconnection. The OECD states: “High voter turnout is desirable
in a democracy because it increases the chance that the political system
reflects the will of a large number of individuals, and that the government
enjoys a high degree of legitimacy”8. Therefore, if voter
turnout is low the European Parliament, although elected, rules on a very small
mandate and thus questions their democratic legitimacy.9

 

 

 

Questionably,
if the most democratically elected chamber has questions about their democratic
legitimacy then how do the other institutions fare? The second of the three
major institutions is the European Commission (EC). The Commission is currently composed of one member
from each Member State and has a number of executive functions including
managing the EU budget, enforcing competition law and policing Member State
implementation of EU laws. In accordance with its mandate of maintaining an
open, transparent and regular dialogue with representative associations and
civil society, it is required to carry out broad consultations with parties
concerned in order to ensure that the Union’s actions are coherent and
transparent 10.
A major institutional change brought in by the Treaty of Lisbon11
is the parliamentarianisation of the supranational governance of the Union and
the politicisation of the Commission as main holder of executive power. It is a
direct consequence derived from, or rather a requirement imposed by, the depillarisation
process.  In the pre-Lisbon era the
supranational method had been designed for policies bringing positive or very
positive outcomes in the short term.  In
the exercise of the new competences conferred upon the Union it needed to
provide a basis for a political decision-making system able to address
circumstances where short-term individual costs for some or all Member States must
be balanced with mid to long term collective benefits for the entire Union. Nevertheless,
significant limitations remain both in the parliamentarianisation of the Union,
the politicisation of the Commission and its’ executive role.  In initiating legislation, it is believed that
the European Commission is democratically illegitimate, criticism that has, in turn, been
criticised by using comparisons to the situation in some national governments. In
such situations few members’ bills are ever debated and “fewer than 15%
are ever successfully adopted in any form”, and where proposals
“generally pass without substantial or substantive amendments from the
legislature”.12To help counteract this a
new citizen’s initiative scheme (E.C.I.) was created and subsequently the commission
is now obliged to consider any proposal signed by at least one million citizens
from a number of member states. This initiative introduces a new form of public
participation in E.U. politics by enabling the public to call on the European
Union to create new legislation. Ground rules and the procedures to be followed
are laid down by an E.U. regulation, which is currently being formulated. As
well as the relevant number of signatories the policy area must relate to one
in which the E.U. has the power to act upon in the first instance.

In 2006,
in order to try and set further restriction on the power of the commission the Second Comitology Decision came in to effect. The
revised Decision introduced a new regulatory procedure (‘regulatory procedure
with scrutiny’) in which both the EP and the Council have the ability to block
the adoption of proposals that emerge from committees.  Significantly as a result of this reform, the
Commission and the Council have been more willing to rely on extensive
delegation as a means to circumvent the influence of the EP on the regulation process.
This democratic control of the EP over the comitology process has been
implemented with the adoption of the Lisbon Treaty13,
which distinguishes between two kinds of non-legislative acts; delegated acts
and implementing acts. Delegated acts stated that the Article 202 of the Lisbon
Treaty14
replaces “comitology” with “delegated acts”. The EP plays a role in the monitoring
and control of delegated powers to the Commission when the latter adopts
non-legislative acts of general application to supplement or amend certain
non-essential elements of the legislative act15
. The EP, together with the Council, retains the option of objecting to or
revoking the delegation. Article 11.7 of the TEU established that the
nomination and appointment of the President of the European Commission is
performed by the EP in
an attempt to strengthen democratic legitimacy.

 

With the
consecutive reforms of the Treaties, the Council of the European Union has passed
from being the only decision maker to sharing its legislative powers with the European
Parliament. Resultantly, its status has been limited to the representation of
the Member States’ interests in the European co-decision procedure. The Council
of the European is one of the three legislative bodies in the EU, along with
the European Commission and the European Parliament. The Council of the
European Union has a number roles within the EU, and these include but are not
limited to, passing EU laws, facilitating
agreement between EU
judiciary and member states, organising
economic policies of
member states, approving the wider EU budget, form and sign
agreements with non-EU states, and
developing foreign and defence policy.
The TEU states that Council meets in public when deliberating and voting on a
draft legislative act16 in order to
improve public debate and to keep
the public better informed about the progress or merits of a particular
legislative draft.  This should also be
seen in the light of all the previous improvements and efforts that the Council
made to increase its transparency and openness in Regulation 1049/2001
regarding public access to EP, Council and Commission documents, and in the
light of the Council’s Rules of Procedure, adopted on 1 December 2009.
Nevertheless, the most important reform with respect to the Council was the new
method (1 November 2014) for calculating Qualified Majority Voting (QMV) when
the Council ‘votes’ according to that decision rule. QMV is governed by article
16 TEU17 and article 238 TFEU18 (and article 235.1 TFEU for the European Council).
The new system makes the allocation of votes more proportional to the
population of the Member States, reflecting an image of the Council as being a
union of both states and citizens. When the Council votes by QMV, each Member
State is given an appropriate number of votes according to its population. This
can be seen as improving the democratic representativeness of votes and of Decision-making.

The
European Council brings together EU leaders to set the EU’s political agenda.
It represents the highest level of political cooperation between EU
countries. The Council, one of the EU’s seven official institutions,
appropriates quarterly summit meetings between EU leaders, chaired by a
permanent president. Article
18.1 TEU19
integrates the European Council within the EU institutional structures and
recognises the democratic accountability of its members in article 10.220:
“Member States 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.” In most instances decisions are made by consensus, so every member
has the ability to block a measure that would be unacceptable to his or her
country. To further provide legitimacy and democracy the QMV reform is applied
to the European Council just as it was applied to the EP, this is explained in
Article 235.1 TFEU21.

The European Court of Justice is
the final institution which has a major issue with legitimacy due to the lack
of an electoral mandate. Members of the EJC are appointed by the member states with
no election happening which leads to two issues: it allows unelected bodies to
determine and distribute values for their citizens creating illegitimacy and it
is a clear example of how the court is not an independent body of the EU. Huntington
cautioned, “Legitimacy is a mushy concept that political analysts do well to
avoid” 22. In democratic regimes, elections theoretically bestow legitimacy on those
exercising political authority.  As
legitimacy declines within regimes and governing coalitions disintegrate,
elections allow them to renew and revitalize themselves.23
The
European Court of Justice has the responsibility to ensure that the law is
observed and to interpret and apply the Treaties of the European Union. These
treaties established the constitutional basis of the various institutions and
European Union as a whole. It is the highest court in the EU with regard to
Union law, (but not national law), and is tasked with interpreting EU law and
ensuring equal application to all member states. Article 13(2) of the TEU 24 states that the ECJ shall
act within the limits of the powers conferred on it in the Treaties, and in
conformity with the procedures, conditions and objectives set out in them. The
institutions shall practice mutual sincere cooperation. The ECJ
has received tremendous scrutiny over growths in jurisdiction? specifically it has
been increasingly questioned by EU member states of overstepping its power by
taking on more and more cases and extending competence. This expansion places
too much authority in the hands of the judges. This extension of cooperation
offers a good example of how the ECJ shies away from the traditional Court
approach of acting as an independent, and final arbitrator.

 

 

 

1 Alan Bullock and Oliver Stallybrass, The Fontana Dictionary
Of Modern Thought (Fontana Press 1977).

2 Robert Alan Dahl, Polyarchy: Participation And Opposition
(Yale Univ Press 1971).

3 Amie Kreppel, Neccessary But Not Sufficient: Understanding
The Impact Of Treaty Reform On The Internal Development Of The European
Parliament (JEPP 2003).

4 ‘Elected, But How Democratic?’ (The Economist, 2017)
accessed 19 October 2017.

5
Treaty of
the Functioning of the European Union (Treaty of Lisbon, as amended) article
289

6 Treaty of the Functioning of the European Union (Treaty of Lisbon, as amended)
art 294

7 Jennifer
Rankin, ‘Is The EU Undemocratic?’ (the Guardian, 2017)

accessed 19 October 2017.

8 ‘OECD Better
Life Index: Civic Engagement’ (2013) 51 Choice Reviews Online.

9 House of Commons Library, The European Union: a democratic
institution? (Research Paper 14/25, 29 April 2014) paragraph 2.3 and pages
30

 

10 Treaty of the European Union (Maastricht Treaty) article
11.3

11 Treaty of the Functioning of the European Union
(Treaty of Lisbon)

12 Aime
Reppel, Understanding The European Parliament From A Federalist Perspective:
The Legislatures Of The USA And EU Compared (Centre for University Studies
2006).

13 Treaty of the Functioning of the
European Union (Treaty of Lisbon)

14 Treaty of the Functioning of the European Union
(Treaty of Lisbon) Article 202

15 Treaty of the Functioning of the European Union
(Treaty of Lisbon) Article 290

16 Treaty of the European Union (Maastricht Treaty)
Article 16.8

17 Treaty of the European Union (Maastricht Treaty)
Article 16

18 Treaty of the European Union (Maastricht Treaty)
Article 238

19 Treaty of the European Union (Maastricht Treaty)
Article 18.1

20 Treaty of the European Union (Maastricht Treaty)
Article 10.2

21 Treaty of the Functioning of the European Union
(Treaty of Lisbon) Article 235.1

22 Samuel P
Huntington, The Third Wave (University of Oklahoma Press 1991).

23 Samuel P
Huntington, The Third Wave (University of Oklahoma Press 1991) Pg 48.

24 Treaty of the European Union (Maastricht Treaty)
Article 13.2