Referendum Briefing 3: Does The Eu Accept A ‘Democratic Deficit’?
November 23, 2018
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Laurent Pech, Professor of Law, Middlesex University
Steve Peers, Professor of Law, University of Essex
The European Union is regularly defendant from suffering a ‘democratic deficit’. In particular, it is oftentimes asserted that all European Union decisions are made past times the European Union Commission – who are ‘unelected bureaucrats’.
As nosotros demonstrate inward this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – as well as to a greater extent than by as well as large how decisions are made inward the European Union; as well as (b) the agency inward which the European Commission gets into office. We volition examine each of those issues inward turn.
Who does what? Does the Commission adopt all European Union laws?
The crucial affair virtually the European Union scheme is that the Commission does non receive got anywhere close every bit much mightiness every bit many people think it has. The touchstone EU’s decision-making procedure is: the Commission lone makes legislative proposals. Those proposals are as well as thus considered past times the Council (the intergovernmental torso representing elected national governments), jointly amongst the elected Members of the European Parliament (representing European Union citizens), whose powers receive got been gradually as well as significantly increased over the final iii decades. Some people say that the Council as well as European Parliament simply rubber-stamp Commission proposals, but that is non true: they sometimes turn down them as well as almost ever amend them.
This graph illustrates the European Union decision-making process:
In addition, national parliaments receive got seen their involvement amongst the EU’s decision-making procedure formally recognised as well as all draft legislative acts, for instance, must hold upward forwarded to them. If plenty national parliaments object to an European Union proposal, it must hold upward reconsidered (a so-called ‘yellow card’). The UK’s renegotiation bargain says that if plenty national parliaments object to a proposed law, it volition hold upward rejected (so-called ‘red card’). Any major changes to the European Union (new Member States, novel Treaties) receive got to hold upward approved past times national parliaments.
Overall guidance on what policies the European Union should accept comes non only from the Commission but also from the European Council – the European Union torso made upward of Member States’ Prime Ministers as well as Presidents, such every bit Cameron, Hollande as well as Merkel. When they telephone phone for the proposal of an European Union police pull on an number the Commission unremarkably reacts quickly. The Council as well as European Parliament tin also enquire the Commission to suggest laws.
Although a lot of European Union decisions are made past times a ‘qualified majority’ inward the Council (meaning they demand 55% of the Member U.S. amongst 65% of the population to back upward them), at that spot is a tradition of seeking broad consensus. So – every bit the graph at the top of this weblog post indicates – the U.K. has inward recent years voted inward favour of 95% of European Union laws.
Once an European Union police pull is adopted the Treaties say that implementation powers are left inward regulation to Member States. So it’s upward to national authorities to apply most laws which Member U.S. receive got agreed inward the EU. As an exception the Commission has powers inward a few cases to adopt precisely about detailed farther rules to implement the technical details of an European Union police pull which was already agreed, thus that the European Union police pull applies inward the same agency inward all Member States. But the Commission’s exercise of such powers is controlled past times Member U.S. as well as the European Parliament, who tin block such draft technical measures. This is similar to the procedure inward most national systems – including the UK, where the authorities drafts ‘Statutory Instruments’ which the House of Commons or House of Lords tin block.
This scheme is a complex i because it has to reverberate several as well as sometimes competing objectives such every bit the necessity to ensure the fair handling of all Member U.S. from the largest to the smallest. Member U.S. insist on retaining their command over the EU’s decision-making procedure to republic at the national level, as well as democratic legitimacy at European Union score is reflected past times the strengthening over fourth dimension of the legislative, budgetary as well as supervisory roles of the European Parliament whose spot every bit a ‘co-legislator’, jointly amongst the Council, is at nowadays firmly established. It is because the fellow member states believe that their national interests were as well as move on to hold upward amend served past times an independent Commission amongst atypical powers (e.g. the Commission’s monopoly on legislative initiatory or its enforcement powers) that the Commission’s role, functions as well as powers receive got been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.
To debate that such the EU’s scheme of governance is non democratic illustrates a failure to grasp that, inward fact, the EU’s institutional framework has been specifically designed non to business office on the footing of a mere bulk dominion but on the contrary, every bit an highly consensual scheme where cipher of importance tin hold upward agreed without the articulation consent of the Commission, Parliament as well as Member States’ governments inward the Council.
With honor to the Commission, critics quite oftentimes dot out that it lone has the correct of legislative initiative, important that legislative acts may hold upward adopted exclusively on the footing of a Commission proposal. However, they unremarkably neglect to dot out that, every bit noted above, European Union leaders oftentimes enquire for the Commission to suggest a novel European Union law; both the Council as well as the Parliament receive got the formal mightiness to enquire the Commission for a proposal; as well as the Council as well as the Parliament must adopt proposals from the Commission for them to move law.
In practice, the annual piece of work programmes adopted past times the Commission are inward whatever lawsuit devised inward the low-cal of a procedure of intensive as well as continuous dialogue amongst the European Parliament as well as the Council. One may also annotation inward passing that at the national level, bills tend to hold upward written past times civil servants working for ministerial departments. In the UK, inward exercise Private Members’ Bills cannot hold upward adopted unless the authorities wants them to be.
Finally, a discussion virtually EU judges. They are oftentimes described every bit ‘unelected’ – but of course of report judges inward the U.K. as well as most other countries are unelected every bit well. In fact, the U.K. has a veto over the appointment of European Union judges. So none of them tin accept upward their jobs inward the kickoff house or hold their jobs (appointments are reviewed every half-dozen years) without the U.K. government’s approval.
The European Commission
It’s simply inaccurate to depict the Commission every bit ‘unelected’. Rather, similar many national legislative bodies, it is elected indirectly – important that it is appointed past times people who are directly elected. Influenza A virus subtype H5N1 candidate for President of the Commission is selected past times the national Heads of State as well as Government (each democratically accountable to their ain Member State), taking into concern human relationship the results of the elections to the European Parliament. In other words, the selection of the Commission President is based on which political party got the most seats inward the European Parliament elections – precisely every bit the selection of the U.K. Prime Minister is based on who gets the most seats inward a U.K. full general election. (The Annex to this weblog post shows how the Commission is appointed inward graphic shape - compared to the UK).
Moreover, starting from the electrical flow Commission (which took business office inward 2014) the candidates for Commission President had genuinely been nominated past times European political parties inward advance. So voters could brand a judgment on which potential Commission President they preferred when they cast their vote inward European Parliament elections – precisely every bit they tin do the same for potential Prime Ministers when voting inward a U.K. full general election.
This allows a connectedness betwixt the voting choices made past times citizens all across the European Union inward the European Parliament elections amongst the political colouring of the selected candidate to the presidency of the Commission. The nomination of the President must hold upward farther approved past times a bulk of those elected Members of the European Parliament. For those who enquire ‘how tin I teach rid of the Commission President?’, the respond is simple. He got that project inward the kickoff house because of the results of the European Parliament elections. If he runs i time again to hold upward Commission President as well as y'all don’t desire him to hold the job, don’t vote for his political party (or for precisely about other political party that would dorsum him).
Then the remaining members of the Commission are each proposed past times Member States’ elected governments, as well as every bit a body, they must hold upward dependent to a vote of blessing past times the European Parliament. Prospective commissioners are also dependent to private questioning past times the appropriate European Parliament commission prior to the European Parliament’s approval.
How tin voters vote out the European Commission every bit a whole? They don’t teach to vote on the entire Commission – but that’s because the appointment procedure defers to Member States. People criticise the European Union for non beingness a democracy, but inward many ways it is an international organisation. We don’t unremarkably await international organisations to hold upward democratic every bit such; rather their accountability comes from national governments’ participation inward them. So nosotros don’t teach to ‘vote for NATO’ or ‘vote for the United Nations Security Council’; nosotros vote for governments that correspond us inward those international institutions. Similarly, a vote inward a British national election determines the political background of the British Commissioner: the electrical flow Commissioner is a Conservative, as well as the previous i was Labour.
Some debate that Commissioners and/or its President must hold upward straight elected. The thought of direct election for the president of the European Commission soundless reveals non only a misunderstanding of the Commission’s role (it is non supposed to human activeness every bit the authorities of the EU) but also a lack of agreement of how national Heads of State or Government are appointed. For instance, at that spot is no actual direct election for selecting the Prime Minister inward parliamentary regimes similar the UK.
The Prime Minister would for sure hold upward locally elected every bit an MP – similar David Cameron is inward Witney. Yet, he or she volition move Prime Minister, strictly speaking, on the sole Blue Planet of beingness the victorious leader of a political party, which selected that leader beforehand, without quest citizens’ opinion. We also had examples inward the U.K. of seeing an MP beingness coroneted PM without a full general election beingness organised (Brown, Major as well as Callaghan, precisely inward recent years). In other words, it is incorrect to assume that electors straight create upward one's hear on the identity of the Prime Minister; rather they pick out the leader of the Blue Planet from a puddle of names set frontward past times political parties. This is essentially equivalent to the appointment of the European Union Commission.
Similarly, it is also incorrect to assume that national cabinet ministers (equivalent to the residual of the Commission) are ever elected officials. This is for instance the province of affairs inward French Republic where anyone tin hold upward appointed government minister without having ever been elected to the national Parliament or to a local assembly. The U.K. cabinet has ministers from the unelected House of Lords. Even worse, inward a multi-party system, every bit opposed to a two-party system, the citizens may discovery themselves amongst a authorities that does non correspond the most pop political party, but which is the fruit of arrangements made betwixt political parties subsequently the elections are held – similar the U.K. coalition authorities betwixt 2010 as well as 2015. With these examples inward mind, the selection as well as appointment of Commissioners past times the European Council as well as the European Parliament cannot hold upward said to hold upward less ‘democratic’ nor less ‘transparent’ than the equivalents inward the U.K. or other Member States.
Furthermore, it’s possible for the Commission to hold upward dismissed past times the European Parliament – precisely similar the UK’s House of Commons tin move past times a vote of non-confidence inward a government. However, it’s truthful that this mightiness has never successfully been used. Does the European Union endure from a comparing amongst the Member U.S. inward this respect? Not quite, every bit the mightiness to dismiss the authorities has simply been lost at national score for a hit of reasons: fixed election dates, the so-called rationalisation of parliamentary rules as well as a to a greater extent than disciplined partisan system. In the UK, for instance, nosotros only receive got i instance of a authorities brought downwards past times a displace of no confidence since World War II.
At the destination of the day, the European Union’s institutional architecture as well as decision-making procedure simply reverberate the twofold legitimacy of the European Union every bit a wedding ceremony of U.S. as well as of citizens on which competences receive got been conferred to run across mutual objectives. In other words, the legitimacy of the EU’s institutional architecture flows from ii sources: the Member States, which are represented at the European Union score inward the European Council past times their Heads of State or Government as well as inward the Council past times their governments which are democratically accountable to their national Parliaments, as well as the European Parliament, which is straight elected as well as represents European citizens.
In this context, the highly consensual as well as arguably cumbersome procedure governing the selection as well as appointment of the Commission may hold upward perchance amend understood as well as justified. If anything, i may fifty-fifty debate that it would hold upward unwise, as well as i may fifty-fifty say undemocratic, to force for a consummate ‘democratisation’ of the Union’s institutional architecture as well as organise the transformation of the Commission into something akin to a national government. Indeed, as well as reverse to pop wisdom, the strict implementation of a purely majoritarian scheme as well as the direct transplantation of the mechanisms associated amongst the national model of parliamentary republic would, inward all likelihood, undermine the EU’s legitimacy due to the ‘thin’ grapheme of the European Union’s feel of collective identity.
The resulting master scheme of authorities could hold upward a difficult sell to the human being on the street, every bit it may differ from his instinctive (and, inward most cases, idealised) agreement of what a republic is or how one’s democratic scheme genuinely works. It may, nonetheless, hold upward defended inward the mention of democracy, i where the value of consensus trumps the majoritarian features classically associated amongst the Westminster model of parliamentary or representative democracy. This is non to say of course of report that at that spot is no room for improvement when it comes to the democratic life of the EU. It remains soundless ludicrous to depict the European Union every bit an undemocratic ‘superstate’. For all its imperfections, the European Union may genuinely offering the endangerment of political leadership at a score where the social touching on of globalisation could hold upward democratically as well as effectively managed. One may only that promise that people remember, to paraphrase Voltaire, that the best tin quite oftentimes hold upward the enemy of the good.
Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)
Annex: Appointing as well as dismissing the European Commission
