EU construction

Albert Weale and Mich Nentwich ”Political theory and the EU”

Ch.1 Legitimacy and the European Union.

Following Beetham´s analysis of political legitimacy as a multi-dimensional concept, comprising different elements of legality, normative justifiability and legitimation. Political power is legitimate to he extent that:

 It is acquired and exercised according to the established rules (legality); and

The rules are justifiable according to socially accepted beliefs about (1) the rightful source of authority and (2) the proper ends and standards of government (normative justifiability); and

positions of authority are confirmed by the express consent or affirmation on the part of appropriate subordinated, and by recognition from other legitimate authorities (legitimation).

Leaving aside for the present the form of legality characteristic of liberal democracy (constitutional rule of law) in order to concentrate on the key dimension of normative justifiability, we can identify its distinctive source of authority in the principle of popular sovereignty, and its acknowledged ends of government to be the protection of basic rights (freedom, security, welfare, albeit in variable or contestable order). Each of these legitimising criteria is complex, though in different ways. From the principle of popular sovereignty derives the electoral authorisation of government, and the criteria of representation, accountability, and, so forth, that comprise the manifestly democratic aspects of legitimacy.

Legitimation is a feature of all political orders. Legitimacy of a liberal democratic system depends on three criteria: an agreed definition of the people or political nation as defining the rightful bounds of the polity; the appointment of public officials according to accepted criteria of popular authorisation, representativeness and accountability; and the maintenance by government of defensible standards of rights protection, or its routine removal in the event of failure. Of course the particular form these criteria take in any given country will depend upon its distinctive tradition and historical evolution, including the survival of pre-democratic modes of legitimation.

Legitimacy in the European Union legitimacy as the EU enjoys must be quite different from that of these states which compose it, and more akin to that of other international authorities, whose membership comprises states rather than individual citizens. This is a legitimacy constructed on the one hand at the level of legality- superior jurisdiction to which national legal systems are subordinate- and on the other at the level of legitimation- the public recognition and affirmation by established legitimate authorities- rather than at the level of normative justifiability.

This is because the EU does not need them for its effective operation. Its addresses are primarily member states and their own legal authorities; and it no more requires obedience and cooperation from ordinary citizens than do NATO, the WTO or the UN itself.

First, viewed as a regulatory regime, EU law impacts directly on citizens, as producers, employees, consumers, etc., and requires their acknowledgement of it as binding on them, and therefore their recognition of the EU as a rightful source of valid law. This is evident, for example, across the range of quota policy- the preservation of fish stocks, the reduction of agricultural surpluses, the rundown of rust- belt industries- where decisions jeopardise the livelihood of individuals directly and have significant distributional consequences. The tendency of national governments to offload the odium for such decisions very publicly onto the EU only makes the issue of its legitimacy more, not less, salient.

Second, from a dynamic point of view, the development of the EU historically has exposed the inadequacy of a legitimacy confined to elite consensus. The debates over Maastricht demonstrated the vulnerability of the EU to popular countermobilisation, and the necessity to secure not to only public support for the expansion of its powers, but also a more direct legitimacy for the institutions that were to exercise them. Whatever disadvantages greater transparency and accountability may bring for the distinctive modes of EU decision making, it is now commonly accepted that the further extension of jurisdiction needs to be balanced by a larger electoral and parliamentary role. Those who are opposed to be balanced by a larger electoral and parliamentary role. Those who are opposed to the former will also oppose the latter. The issues of the EU´s legitimacy and the extension of its powers are thus intimately connected.

A final reason for treating the legitimacy of EU institutions seriously is the impact it has on the legitimacy of the member states themselves. The later can no longer be regarded as independent of the former. Just as it was the acknowledged deficiency of individual nation-states in market regulation and economic performance that led to the surrender of powers of the European level, so the latter´s performance affects the standing of national governments for good or ill. So too, the inadequacy of parliamentary…

Ch.3   Democracy, legitimacy and majority rule in the European Union.

…democracy is said to be missing in the EU…

Institutions, as all other rules that regulate behaviour, should be legitimate in several senses. We are only morally obligated to obey normatively legitimate institutions. That is, they must be justifiable to the `demos`, to all affected parties. Normative legitimacy requires a presentation and justification of such principles of legitimacy for the EU, as well as transparency of its institutions. Only then can the public assess whether principles of legitimacy are satisfied. At present, we have neither such a theory of justice, nor the requisite transparency. These flaws are in part due to the lack of constitutional dimensions to the institutions of the EU. There is no explicit presentation and systematic defence of the de facto constitutive rules, rules of mechanisms, and purposes of the EU.

The Amsterdam Treaty takes steps in this direction by requiring timely information to national parliaments, and allowing them six weeks for debates before legislative proposals are placed on the Council agenda. More drastic suggestions, not adopted, included a European constitution explicitly established and recognised as such, and procedures for holding Council members accountable for their votes.

Democracy as a majority rule.

Democracy is also used to describe the decision procedures of institutions whereby the preference of the majority of the electorate determine the result. The democratic deficit of the EU sometimes refers to this notion of democracy. There is as gap between the powers transferred to the Community level and the control of the elected Parliament over them, a gap filled by national civil servants operating as European experts or as members of regulation and management committees, and to some extent by organised lobbies, mainly representing business.

Parliament, moving towards a system of bicameral parliamentary democracy, possibly leading to co-decision with the council as the standard procedure Furthermore, the Treaty increases the use of qualified majority voting among the government representatives in the Council of Ministers. These changes highlight some of the central topics of a normative political theory for the EU: the legitimate significance of states; the proper scope and application of the principle of subsidiarity; and the content of  `vital national interests` or important ad stated reasons of national policy` which protect a domain of domestic sovereignty from outside intervention, originating with the 1966 Luxembourg compromise and re-emerging in the Amsterdam Treaty.

These two senses of democracy are related in several interesting ways. The lack of specific majoritarian decision procedures can be lamented only from the perspective of a sound political theory of legitimacy. Only then we can understand why such majority rule is appropriate for certain kinds of decision in the first place. Second, contractualist theories of normative legitimacy appeal to consent by all affected parties, and are thus reminiscent of democratic elections. Considerations of possible consent bring out whether the interests of each are secured well enough by the institutions. Thus, the notion that government must rest on the consent of the governed has become an article of political faith, a conviction that much contemporary political philosophy labours to secure`. (Flathman 1993)

However, the precise relations and implications between these two senses of democracy- of normative legitimacy and of majority rule- are contested and obscure. A better account of legitimacy must draw on a broader theory of justice for Europe. Such a theory may allow us to understand and judge the case for particular majoritarian mechanisms within the EU. We need such an account in order to assess the suggestions for institutional changes mentioned above.

…Another important task is to determine the effects of the EU on individuals, both within the EU and outside. Much empirical research on these issues is required. In several ways, the EU seems to be moving towards the role which nation states enjoyed previously. With the four freedoms and a European monetary union, the EU has pervasive effects on individuals’ lives. The impact increases with the decreasing power of government instruments over legislation and exchange rate policies, which hitherto served as a shock absorbers between citizens and the surrounding world. The increased importance of the EU underscores that political control over its institutions is an important good, and explains why the democratic deficit, in both senses, is a most pressing issue.

What contractualism is not.

Principles of legitimacy require actual participation in order to be appropriate, or for the laws to be experienced as the citizens´ own creation (Brown 1994), the EU would appear to require a constitutional convention, as in the American case (Jefferson 1789). Contractualism, on the other hand, insists that political participation, including democratic mechanism, and constitutional conventions must be justified on the merits of such procedures.

The focus on principles of legitimacy as conditions which particular institutions must satisfy also sets this approach apart from accounts which hold that the role of political theory is to generate blueprints for institutions. The aim of political theory is narrower: to resolve conflicts among considered judgements and clarify our views on areas where more determinate answers are needed.

The justification offered by contractualism is not one of deduction, but rather of acceptability. Often this is all that is needed for the purpose of identifying some social worlds as out of bounds, as unjust or immoral. On this view, political theory aspires to put some constraints on what kinds of world individuals should acquiesce in, without necessarily pointing to one ideal world. Justification of this kind underdetermines the set of just institutions. Several institutional arrangements can b equally unobjectionable, and hence permissible from the point of view of justice.

Justifying majority rule

We now turn to consider the case for majority mechanisms within the institutions of the EU. The following sketch is brief: the purpose is to indicate, but not exhaust, contractualist arguments on this issue.

The general case for majoritarian mechanisms in general is that such mechanisms secure the relevant interests of affected parties from standard harms to an acceptable extent. Majoritarian democratic mechanisms are designed to allow all affected parties equal shares of political control in some sense. The argument for such allocations of political power is comparative: it must be argued that majoritarian mechanisms are better suited than alternative allocations of political controls, in that they ensure the relevant interests for all parties. Such arguments rely on substantive empirical information about how democratic measures and alternative procedures are likely to work, including the likely abuses of power they and alternatives give rise to. Troubling cases include those where there are permanent minorities, and those where the set of affected parties is contested, such as when the plight of animals or the environment is at stake.

Two examples of troubling issues can illustrate contractualist arguments regarding institutional reforms aimed at increased majority mechanisms.

 The contractualist approach is concerned to assess stable institutions by their effects, both intended and unintended, on affected parties. We must be attuned to the incentives created by institutions over time, and how they affect individuals´ values and perception of themselves and of the community they live in. Long-term unintended effects of social institutions are notoriously difficult to predict and hence assess. Nevertheless, institutional theory may throw some light on these issues. For instance, the case against voting on representative legislators cannot rest with Rousseau’s scornful dismissal of voters being free only on the day they vote. Rather, the issue must be whether such a method is better than the alternatives in terms of securing the interests at stake, where we consider the incentive effects on voters and representatives. Another relevant example concerns the centralising effects of European institutions.

Against mixed models

In mixed models of government one body enjoys legislative, executive and judicial powers. To be sure, even in states which split powers the executive and legislative functions are not always clearly aligned with different bodies. Often the executive not only executes laws, but initiates legislation and makes policy, while the legislative often reviews and influences the execution of policy (Vibert 1995). However, the concern for transparency and avoidance of standard threats caution against mixed models of government.

In contrast, those approaches which stress the pervasive need for democratic participation and majority rule might regard all attempts at separating powers as anti-democratic and hence illegitimate. The separation of powers puts some aspects of government out of reach of representatives, and hence of the public.

Systemic effects are unpredictable at the level of day-to-day decision making. Second, citizens may reasonably want guarantees against likely threats of abuse. Institutions and the allocation of power must be tailored with these sources of instability in mind. To be sure, the representatives and executives must be virtuous, but citizens may reasonably insist on protection against likely threats- including the possibility that some will bend the rules inappropriately.

The case for majority mechanisms in the EU.

What role should majoritarian mechanisms play at the level of the EU? When decisions are moved to the European level, we should suspect that majority rule as a means of accountability and control at the same level secures a better match between the decisions and those affected. Thus majority procedures are often regarded as an improvement over the current situation in the EU.

European level and there are several competing additional suggestions for how to increase majoritarianism in the European institutions. In the following I indicate how contractualism approaches these issues.

The commission has multiple functions:  promotion of the common interest, monopoly of legislative initiative and guardianship of Community law.  Even though the commissioners are regarded as civil servants with loyalty only to the EU and the `European interest`, they frequently defend national positions in the Commission.  There is then, representation in a weak and direct sense, and the Commission decides by majority vote.

The appropriate focus for increased democratic rule should not therefore be the Commission. When the Treaty of Rome established, member states were regarded as the most likely sources of inappropriate threats to the regime. However, the EU is developing from being institutions created for the effective pursuit of private interests, towards a union with political aspirations guided by a conception of the common good suitable for states.

Against majority rule?

We now turn to consider some constraints on the role of majority rule. Contractualism is not of itself sceptical of anti- majoritarian institutions in the EU. I here sketch arguments concerning two issues: the legitimacy of constitutional constraints on the scope of majority rule; and the legitimate role of states´ powers, possibly overruling a majority of the citizens in Europe.

A constitution with rights?

Should there be a European constitution with a bill of rights? Few deny the need for clear `constitutive rules` which specify the various government bodies and their legal powers. The lack of a European Constitution in this sense prevents transparency, which all agree is a minimum condition for legitimacy.

Bellamy argues instead for unentrenched rights, claiming that individuals are more likely to accept the legitimacy of decisions they disagree with if they feel that they have been involved in making them and there are opportunities for reopening the debate in the future. Democratic politics offers the possibility of a fair compromise for the resolution of issues which allow for reasonable disagreement. Moreover, democracy protects rights, by institutionalising procedures and dispersing power allowing individuals to fight for their rights themselves (Bellamy 1995).

The constitution is anti-majoritarian. One function of constitutional protections through rights is precisely to secure certain interests of every citizen- even those of minorities- against day-to-day majoritarian politics. Some issues are placed off the political agenda. From the point of view of contractualism, this is justifiable in so far as some such arrangement is needed to secure the vital interests of each citizen against standard threats.

Constitutional constraints on political debate , for instance by a constitutional court, instead serve to give notice to the public that the political powers now take as extraordinary course, that or the unintended systemic effects of political decisions now cross certain important boundaries.

Federalism and state powers

A central political and philosophical issue regarding the future of Europe is the legitimate role of the member states. The reason why small states enjoy disproportionate influence is of course historical. Unlike the USA, the EU developed and develops from pre- existing independent, legally equal, de jure sovereign nation states.

The prior formal sovereignty of each state translated into formal representation which gives citizens of small states disproportionate influence, so that, for example, there are many more members of the EP per thousand citizens for the small states than for the larger ones and small states are overrepresented for their population size in the allocation of votes in the Council of Ministers.

A states system would seem difficult to justify in so far as it entails that individuals in different states enjoy different life-chances. So while states may be acceptable as a second-best solution in times of transition, contractualism would seem to insist that, eventually, all social institutions should have a regional and eventual global reach. The current status of states in the EU would appear to be inappropriate, since the interests of their citizens- are unduly favoured.

Member states would continue to enjoy a variety of powers. From the Amsterdam Treaty it would seem that the trend is towards a bicameral system of governance where the Council continues to be one important source of control. Even though the distribution of votes in the Council varies with population sizes among European states. And in the Commission every state has one Commissioner, with the largest five states having two each until future expansion of the EU. In order to reduce the democratic deficit, by ways of equalising citizens` formal influence, the power of states and national parliaments should be reduced by reducing the powers of the Council and possibly of the Commission. Moreover, their votes should reflect population size more exactly.

A justification of states with significant powers might be provided within contractualist theory if coalitions of citizens are allowed in the choice situation, parallel to Locke’s contractualist argument allowing a property owners´ state. This strategy may yield communitarian conclusions, but is fraught with great theoretical difficulties.

To be sure, there are reasons to move slowly in reducing the powers of existing states, so as to not upset expectations. As part of political theory of transition from unjust situations, we could plausibly regard states within the EU as a permissible deviation from institutions which would be acceptable to all.

The primary normative role of states may be to serve as a locus of checks and balances within a federation, confederation or other order with federal features. The most just stable system of regional institutions may involve a distribution of checks and balances where states play an important role as a check on centralist tendencies. Thus one might argue that member states should retain roles regarding constitutional change to prevent hasty or unwarranted centralisation. This defence is based on the interest of individuals in controlling institutional and cultural change, allowing their expectations to be met. 

Conclusion: the ends of Europe

The objectives of the EU are essential for the development of a normative political theory of Europe. The principle of subsidiarity brings his out:

The Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member States and can therefore, by reason of the scale of effects of the proposed action, be better achieved by the Community.

It must be applied by some institution, such as a European Court, then parties disagree about the scope of heir powers. This in turn, however, involves considering the general centralising tendency of EU institutions, including the European Court of Justice (Mancini 1991).

The third, and perhaps most fundamental, issue is that a proper application of the principle of subsidiarity requires us to be clear on the legitimate significance of states and of the powers of the European commission is due in part to disagreement on this issue. The objectives of the EU are hotly contested, and this has an impact on what powers it should enjoy.

Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However, since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the reflection group has no qualms about maintaining the powers of the Commission. The Commission is said to work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.

Ch.4   Between representation and constitutionalism in the European Union

Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the Reflection Group has no qualms about maintaining the powers of the Commission. The Commission is said to work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.

The risk is even more pronounced with uncertainty and disagreement about the aims of the EU. This disagreement makes claims of efficiency controversial if not obfuscating. If EU institutions focus exclusively on market efficiency, leaving the distributive tasks solely to member states, the transfer of powers to European institutions might then leave states unable to fulfill the legitimate claims of citizens. Alternatively, the EU may have to assist states, by providing regional transfers aimed at distributive justice among citizens of different. The extent of any such distributive commitment is contested, and normative theory is urgently needed. EU documents talk of convergence of living standard and solidarity, but these terms must be specified: is the aim only to eradicate dire poverty, or also to go beyond that baseline, towards equal living conditions for all Europeans? Any such moves transfer formerly internal issues of domestic policies of states towards centralised institutions, leaving national governments with less leeway in the field of social policy. Some will argue that these obligations cannot be adequately secured by emasculated nation states.

A better understanding of the legitimate aims of the EU is thus crucial for making headway on the issues of legitimacy and democratic mechanisms, both practical and philosophical. As long as the explicit aim of the EU was economic, increased efficiency was easily interpreted as Pareto-improvements within a utilitarian setting. The task of the EU was previously predominantly to secure peace and stability through free markets, leaving matters of distribution and authority aside, in accordance with standard economic theory. The EU now has much broader political aspirations. Its objectives, criteria of efficiency, and the role of majoritarian mechanisms must be reconsidered accordingly. The choice of means becomes more important as economic benefit is supplemented by other political goals. Transparency and the rule of law, majority rule, distributive justice, and human rights all become central issues. They cannot be regarded merely as ideas to be pursued on a par with economic efficiency, but are conditions of justice if the EU indeed is to become and appear legitimate.

The EU is a multi-level political system which is characterized by relations of asymmetry not just between a suprastatal legal development and the lack of any corresponding democratic accountability, but between positive and negative integration as well. It is these two mutually reinforcing asymmetries which are conceptually central here, and which are featured in the descriptive and explanatory efforts generally accepted by jurists and political scientists.

For the federalist, symmetry is to be achieved through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.

But is it possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law.

German democracy assumes a distinctive character on account of its historical background. It is constituted in perpetuity, and with a strong emotional attachment to the inviolability of its fundamental provisions. No popular referendums may take place within its framework. The Basic Law of 1949cannot, moreover, be altered in respect to its core content.

The accession of the Federal Republic to the EU must therefore take place in a form permitted by the applicable articles. It is not possible to solve the problem through political means- as has been done in other member states- by allowing a referendum to undermine the central constitutional provisions safeguarding the right of the people to determine their fate. What was viewed in Denmark and in France as a political question to be decided by plebiscite was seen in Germany as a problem of constitutional law, to be decided by the Constitutional Court.

Decisions in the Council of Ministers can be adopted by majority rule. Furthermore, Community law not only has direct effect in the member states, but also enjoys priority in the principle over provisions adopted within each nation. The Union Treaty takes the fulfillment of these three requirements as a given. At the same time, the Court states as a condition for its verdict that the provisions of the Basic law in respect to democratic accountability are guaranteed.

Democratic accountability

Democracy, if it is not to remain as merely a formal principle of accountability, is dependent on the existence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals become clarified and change course... and out of which a public opinion emerges which starts to shape a political will. This also means that the decision- making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that citizens entitled to vote can communicate, in their own language, with the sovereign authority to which they are subject....

If, as at present, the peoples of the individual states provide democratic legitimation through their national parliaments, limits to the extension of the European Communities´ functions and powers are then set by virtue of the democratic principle. Each of the peoples of the individual states is the starting point for the public authority relating to that people. The states need sufficiently important spheres of activity of their own in which the peoples of each can develop and articulate in a process of political will- formation which it legitimates and controls, in order to give legal expression to what- relatively homogeneously- binds the people spiritually, socially and politically together...

Economically, socially and environmentally, the member states are closely bound up with one another. The financial markets can on good grounds be expected to react most powerfully should a country make use of its constitutional right wholly or in part to forbid the application of Community law within its territory.

The constitutional Court departs even from such realism when it assumes the demand for the democratic accountability is satisfied through the merely theoretical possibility of partial withdrawal form Community law. For the Court cannot adduce any example of a parliament which has ever dared defy the provisionally established suprastatal order. On no occasion and in no setting, to the best of my knowledge, has any national decision been made to close the borders of a member state to Community law.

Ch.5  Defending the democratic deficit

The EU is a multi-level political system which is characterized by relations of asymmetry not just between a suprastatal legal development and the lack of any corresponding democratic accountability, but between positive and negative integration as well. It is these two mutually reinforcing asymmetries which are conceptually central here, and which are featured in the descriptive and explanatory efforts generally accepted by jurists and political scientists.

For the federalists, symmetry is to be achieved through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.

It is possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law?

The perpetuity clause

German democracy assumes a distinctive character on account of its historical background. It is constituted in perpetuity, and with a strong emotional attachment to the inviolability of its fundamental provisions. No popular referendums may take place within its framework. The basic law of 1949 cannot, moreover, be altered in respect to its core content.

The accession of the federal Republic to the EU must therefore take place in a form permitted by the applicable articles. It is not possible to solve the problem through political means- as has been done in other member states- by allowing a referendum to undermine the central constitutional provisions safeguarding the right of the people to determine their fate. What was viewed in Denmark and in France as a political question to be decided by plebiscite was seen in Germany as a problem of constitutional law, to be decided by the Constitutional Court.

The very point of Community law lies in its suprastatal character. Decisions in the Council of Ministers can be adopted by majority rule. Furthermore, Community law not only has direct effect in the member states, but also enjoys priority in principle over provisions adopted within each nation. The Union Treaty takes the fulfilment of these three requirements as a given. At the same time, the Court states as a condition for its verdict that the provisions of the Basic Law in respect to democratic accountability be guaranteed.

Democratic accountability

Democracy, if it its not to remain as merely principle of accountability, I dependent on the existence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals become clarified and change course.. and out of which a public opinion emerges which starts to shape apolitical will. This also means that the decision –making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that citizens entitled to vote can communicate, in their own language, with the sovereign authority to which they are subject…

If, as at present, the peoples of the individual state provide democratic legitimation through their national parliaments, limits to the extension of the European Communities´ functions and powers are then set by virtue of the democratic principle. Each of the peoples of the individual states is the starting point for the public authority relating to that people. The states need sufficiently important spheres of activity of their own in whish the peoples of each can develop and articulate in a process of political will-formation which it legitimates and controls, in order to give legal expression to what- relatively homogeneously- binds the people spiritually , socially, an politically altogether…

Did the Court solve the problem?

Defending the democratic deficit means having to reconcile a suprastatal legal and monetary order with a demand for democratic accountability within a framework composed of democratically constituted nation states. Has the Court succeeded in squaring the circle, by thus combining the requirements of marginality and predictability with an interpretation of the suprastatism of Community law as provisional – in the sense of being conditional and revocable? My answer to that question is no, essentially for two reasons. One is philosophical in character and concerns the manner of reasoning itself. The other is theoretical: even within the form of reasoning chosen by the Court, it is possible to formulate a decisive criticism. The Constitutional Court thus cannot be said, in my opinion, to have solved the problem of the democratic legitimacy of Community law.

According to Article 14.2 of the ECB charter, the member states pledge so to alter their national laws and constitution as to prescribe that the head of their central bank be appointed for a term of five years, and that it only be possible  to dismiss him/her following legal examination by the European Court. The prerogative to initiate proceedings aimed at such a dismissal shall devolve solely on the ECB Council (i.e. directing boards and those chairing other countries´ central banks), or by the bank chair directly concerned, ´on grounds of infringement of this treaty or of any rule of law relating to its application´. So, it will not be possible, with an individual chairing a central bank, to call the mandate into question on the grounds that said individual lacks the confidence of his/ her principals.

The ECB Council consists of the heads of fifteen central banks, the irremovability of whom is backed by the exclusive support of the European Court. To these 15 persons must be added the six members of the ECB´s directing board, who are appointed by the heads of state and government for a period of 8 years, and who cannot receive a renewed mandate. In a fashion comparable with that applying for the heads of the member states´ own central banks, moreover, it is prescribed that, if a member of the ECB´s directing board no longer meets the requirements for performing his/ her tasks, or if the member has been guilty of serious negligence, the European Court alone shall be able, upon the the request of the ECB Council, to dismiss that member.

Neither the Commission, then, nor the Council of Ministers, nor the EP will be able to question the general judgement of the members of the Bank’s directing board, once its members have been appointed. The long mandate period is furthermore intended, as is the fact that members cannot be appointed to another term, to guarantee the independence of the ECB Council: The members thereof are not to the slightest trace of democratic accountability on any grounds other than those formulated by the financial experts themselves, with the juridical support they can obtain in court with the help of the Treaty provisions.

The idea, in other words, is that the 21 directors who are assigned the direction of the monetary policy of he EU are to create an institution of its own. Their joint governance of monetary policy of the EU are to create an institution o fits own. Their joint governance of monetary policy is to be independent not merely in theory but also in practice. This independence is not just to obtain, moreover, in relation democracy in the member states. The lengthy mandate period, the ineligibility of the members for renewed service and the fact that said members can only be dismissed with the support of the European Court together entail a qualitative increase in the independence enjoyed by the directors of the Central Bank. It is not just the national democracies here which are removed from influence on account of the double asymmetry considered above. Above and beyond this the EU as such- irrespective altogether of the degree of democratic accountability within each member state- forswears the possibility of weighting the value of a stable price level against other legitimate objectives.

The modification of the democratic principle for protecting the confidence in the value of a currency is acceptable because it takes account of special characteristic- inn the German legal system, tested and proven, in scientific terms as well- that an independent central bank is a better guarantor of currency and rely on short-term consent of political forces. To that extent the placing of monetary policy on an independent footing within the sovereign jurisdiction of a European Central Bank, which is not transferable to other political areas, satisfies the constitutional requirements where under the principle of democracy may be modified.

In the authors´ view it cannot be shown that the Constitutional Court has succeeded in solving the problem of the democratic legitimacy of Community law and of the protected monetary union. 

Ch.7  Legitimacy dilemmas of supranational governance.

The EC between accountability and independence.

Normative foundations of European Integration.

First, European integration is of independent normative value above and beyond the benefits it provides to specific states, groups and individuals. Second, integration must be understood as an open-ended process rather than the emergence of a specific set of institutions and policies Third, European integration is not only the expression of, but also the response to, processes of globalisation. Each of these assumptions has important repercussions for the subsequent discussion of legitimacy in the EU.

 The first of these points, the independent value of European integration, is perhaps the most contentious. Yet looking at the origins and early history of the European Community it is evident that West European integration was, for a significant period of time, regarded as something more than merely a maximisation of national interests. The idea of European integration was one of the superseding competition and conflict between member states by replacing the state system with a qualitatively different system. Many saw this as a federal project, but as this proved to be far reaching, recourse was made to functional integration. Subsequently, the normative aspect of the European idea- indeed the European ideal itself-was largely lost from view as the emphasis was on functional logic and national interests. Yet it is crucial for this understanding of integration that the functional path has merely been the method rather than the aim of European integration.

The stability which integration has brought to European politics is not so much the consequence of current agreement among member states as a result of accumulated experience of a legal and institutional framework that has been built up over the past 45 years. The specific characteristics of European integration- the degree of transparency it has brought to international politics, the rule of law it has established in interstate relations, the scale of administrative and commercial interaction it has generated- make this a normatively valuable framework for political decision making.

Clearly, there are limits to the transparency and the rule of law in the EU, as there are serious limits to democratic participation. The most likely alternative to functional integration is the persistence of a state-centred system in which decision making would be much less democratic, transparent, justifiable and efficient. Seen in this light, the critique of the EU democratic deficit for a further democratisation of the EU is only credible if it is based on an affirmation rather than a rejection of the integration process.

Legitimising European governance-beyond majoritarian democracy

The democratic legitimacy of the EU is increasingly seen as a highly complex issue, in which the majoritarian avenue might do damage to the European project. The underlying problem here is the conceptual history of liberal democracy. If we look at their origin and early practice, we see that the structures and procedures of representative government are not simply the instruments of liberal democracy as which they are usually regarded. They have functioned also as elements in the construction of nation states. Indeed, in the liberal era, the conferral of democratic and other citizenship rights has been one of the most important instruments for state building. From the French Revolution onwards, the extension of parliamentary democracy was essential in the creation of strong central states based on a common national identity.

Democratic theory cannot give any satisfactory answer to these questions. In this respect liberal democracy and representative governments necessarily rest upon existing state or communal boundaries, or else use what Barry calls arguments of persuasion to create new boundaries. Borders and hierarchy are the hallmark of the modern state And while the establishment of democratic regimes has not always created states, and while many states remain undemocratic, there are no examples for state-less forms of democracy.

Historically, the establishment of liberal democracy came to be tied to, first, popular sovereignty and, later, national self-determination. Popular sovereignty demands that ´the people´ have ultimate control over the institutions of state. National self-determination demands that each nation be recognised as ´a people´ with the right to determine their own affairs. These two principles have been fused in the powerful combination of ideas and values that is the nation state. The revolutions of the 18, 19 and 20^th centuries each had their part in establishing the fusion of ´people’s power´ with    ´national liberation´, joining citizenship with nationality. Thus, we are now faced with a generalised perception that the acquisition of democratic rights requires the establishment of a state possibly a state within a federation, but preferably an independent state.

9. Opportunity structures for citizens´ participation

The case of the European Union

Hitherto, the political rights of European citizens with respect to the European system have been limited to the right to vote and to stand for European elections.

In order to prepare for ground for a meaningful debate on these developments, and more far- reaching proposals for the inclusion of direct- democracy devices in the EU Constitution, I first outline the concept of `opportunity structures for citizens` participation`. I then take a closer look at the current position on citizens´ participation in the EU. On the strength of this analysis, some democratic innovations are suggested in the last section.

Voting at the European level

Voting at the national level of the member states might be considered as an act of participation in the European polity as well. First, the composition of the national legislature influences considerably the transposition and implementation of legislative acts of the EU. With respect to the implementation of EC directives, national voting is a `polity-related` OSCP, in the sense that it affects the composition of policy institutions. It is perhaps the most important channel by which public opinion affects EC policy via member state governments. Third, national voting is also a `control mechanism` in the sense that a strong political mandate at the national level may induce a government to hold a particular view on a European issue leading to the use of the veto in the Council of ministers or the filling of complaints to the European Court of Justice.

Membership in large interest groups, parties or federations.

As in any democratic system, this OSCP is also present at EU level. However, most of the lobbies active in Brussels are head federations of national organisations and, hence, without individual membership. Therefore and because of the specific features of the EU system (centralisation, geographical remoteness), this opportunity structure is dominated by professionals and it is an even more mediated by professionals and it is more mediated (indirect) OSCP for the `credit card member` than in the national context. In particular, there is no European party system; that is, the political groups active at the European level do not act independently of the national levels and there is no individual membership of citizens either. Given the Amsterdam reforms regarding the EP, the importance of European party politics might increase in the long run.

… Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the Reflection Group has no qualms about maintaining the powers of the Commission. The Commission is said o work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.

The risk is even more pronounced with uncertainty and disagreement about the aims of the EU. This disagreement makes claims of efficiency controversial if not obfuscating. If EU institutions focus exclusively on market efficiency, leaving the distributive tasks solely to member states, the transfer of powers to European institutions might then leave states unable to fulfill the legitimate claims of citizens. Alternatively, the EU may have to assist states, by providing regional transfers aimed at distributive justice among citizens of different. The extent of any such distributive commitment is contested, and normative theory is urgently needed. EU documents talk of convergence of living standard and solidarity, but these terms must be specified: is the aim only to eradicate dire poverty, or also to go beyond that baseline, towards equal living conditions for all Europeans? Any such moves transfer formerly internal issues of domestic policies of states towards centralised institutions, leaving national governments with less leeway in the field of social policy. Some will argue that these obligations cannot be adequately secured by emasculated nation states.

A better understanding of the legitimate aims of the EU is thus crucial for making headway on the issues of legitimacy and democratic mechanisms, both practical and philosophical. As long as the explicit aim of the EU was economic, increased efficiency was easily interpreted as Pareto-improvements within a utilitarian setting. The task of the EU was previously predominantly to secure peace and stability through free markets, leaving matters of distribution and authority aside, in accordance with standard economic theory. The EU now has much broader political aspirations. Its objectives, criteria of efficiency, and the role of majoritarian mechanisms must be reconsidered accordingly. The choice of means becomes more important as economic benefit is supplemented by other political goals. Transparency and the rule of law, majority rule, distributive justice, and human rights all become central issues. They cannot be regarded merely as ideas to be pursued on a par with economic efficiency, but are conditions of justice if the EU indeed is to become and appear legitimate.

The EU is a multi-level political system which is characterized by relations of asymmetry not just between a suprastatal legal development and the lack of any corresponding democratic accountability, but between positive and negative integration as well. It is these two mutually reinforcing asymmetries which are conceptually central here, and which are featured in the descriptive and explanatory efforts generally accepted by jurists and political scientists.

For the federalist, symmetry is to be achieved through a democratization of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through a democratization of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.

But is it possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law.

German democracy assumes a distinctive character on account of its historical background. It is constituted in perpetuity, and with a strong emotional attachment to the inviolability of its fundamental provisions. No popular referendums may take place within its framework. The Basic Law of 1949cannot, moreover, is altered in respect to its core content.

The accession of the Federal Republic to the EU must therefore take place in a form permitted by the applicable articles. It is not possible to solve the problem through political means- as has been done in other member states- by allowing a referendum to undermine the central constitutional provisions safeguarding the right of the people to determine their fate. What was viewed in Denmark and in France as a political question to be decided by plebiscite was seen in Germany as a problem of constitutional law, to be decided by the Constitutional Court.

Decisions in the Council of Ministers can be adopted by majority rule. Furthermore, Community law not only has direct effect in the member states, but also enjoys priority in the principle over provisions adopted within each nation. The Union Treaty takes the fulfillment of these three requirements as a given. At the same time, the Court states as a condition for its verdict that the provisions of the Basic law in respect to democratic accountability be guaranteed.

Democratic accountability

Democracy, if it is not to remain as merely a formal principle of accountability, is dependent on the existence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals become clarified and change course... and out of which a public opinion emerges which starts to shape a political will. This also means that the decision- making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that citizens entitled to vote can communicate, in their own language, with the sovereign authority to which they are subject....

If, as at present, the peoples of the individual states provide democratic legitimating through their national parliaments, limits to the extension of the European Communities´ functions and powers are then set by virtue of the democratic principle. Each of the peoples of the individual states is the starting point for the public authority relating to that people. The states need sufficiently important spheres of activity of their own in which the peoples of each can develop and articulate in a process of political will- formation which it legitimates and controls, in order to give legal expression to what- relatively homogeneously- binds the people spiritually, socially and politically together...

Economically, socially and environmentally, the member states are closely bound up with one another. The financial markets can on good grounds be expected to react most powerfully should a country make use of its constitutional right wholly or in part to forbid the application of Community law within its territory.

The constitutional Court departs even from such realism when it assumes the demand for the democratic accountability is satisfied through the merely theoretical possibility of partial withdrawal form Community law. For the Court cannot adduce any example of a parliament which has ever dared defy the provisionally established suprastatal order. On no occasion and in no setting, to the best of my knowledge, has any national decision been made to close the borders of a member state to Community law.

11. European Union citizenship as a model of citizenship beyond the nation state

Possibilities and limits

The 1992 Treaty on European Union (TEU) laid the foundations for a European civil society by introducing the institution of EU citizenship as a supplement to national citizenship. EU nationals have a right to free movement and residence.

EU citizenship as an institutional design offers both unique challenges and interesting possibilities. Among the latter is the prospect of a post-national political arrangement which facilitates multiple membership, by both natural and legal persons, in various overlapping and strategically interacting communities on supranational, national and regional/local levels. EU citizenship also entails the promise both of a heterogeneous community which transcends the nationality model of citizenship.

Several of these possibilities, however, remain at present unexplored or frustrated owing to the inappropriate imposition of the logic and the language of the nation state onto the European level. A prime manifestation of this is the conditioning of the personal scope of EU citizenship upon tenure or acquisition of member state nationality.