EU democracy on trial
2.1 The EU democratic credentials: The state of affairs
For different reasons, the founding fathers did not ground the European integrations in democracy. To some extent, this explains why it is still hard to connect the
political core of the European integrations with democratic principles, although, in the meantime, the nature of the Union’s community has changed considerably.
What can be said on behalf of EU democracy? Consider first what is deemed to be consistent with democratic rule.
Despite a striking diversity of views within the scholarship on democracy, the contemporary understating identifies democracy mostly with the nation-state.[174] However, democracy is not about the state, but about the exercise and the limitation of public power.[175] It is about rulers and the public realm, where the former come to power according to the established norms and are accountable for their actions in the public realm formed by citizens who act indirectly through their representatives.[176] But democracy cannot be reduced to elections and the majority rule. To be considered democratic, any polity must also be set up in respect of the rule of law, provide respect for fundamental rights and judicial review for cherishing freedom and equality. Or, to return to Dixon and Landau, ‘minimum substantive core of democracy’ includes a commitment to free and fair elections, the separation of powers, fundamental rights and governmental accountability.
Following Dixon and Landau, it is clear that EU democracy is not an exact showcase. This does not mean that the EU is not based on what de Burca terms ‘the democratic-striving approach’. [177] Below, I explain why.
It has been a truism to say that democracy was not in the DNA of the European integration project when it was launched.[178] Instead, it was the Political Messianism which linked up the former enemies with the dream of a federal Europe.[179] Nevertheless, the life of the Political Messianism in the EU integrations (now mostly over) has been predominantly directed at making democracy the only legitimate form of governance in the EU public order, without parallel in transnational or international law.[180] [181]
Historically, democratic principle as a foundational EU value was for the first time introduced in the Maastricht Treaty, which created a political community and signalled that a limited project of functional integration based on market interests had reached its limits.2 The Lisbon Treaty repeats that democracy is an EU
Thinking outside the politics box 79 foundational value, shared by the Member States.
As a foundational value, it is essential for reaching ‘ever closer Union among the people of Europe’ on two grounds: on one hand, a new state’s accession to the EU is conditional on its respect of democracy and a commitment to its promotion (Article 49 TEU); on the other hand, the Member States are obliged to abide by democracy during their membership, while any clear risk, or a serious and persistent breach of democratic values within the Member States, may activate a preventive EU mechanism to defend democracy (Article 7 TEU).Next, the Lisbon Treaty is drafted to follow the usual qualities of representative democracy and some elements of participatory democracy. Article 10 TEU determines that at the Union level citizens are directly represented in the European Parliament and indirectly represented in the European Council and the Council through their Member State representatives (who are democratically accountable either to their national parliaments or their citizens). Its legislative, supervisory and budgetary powers have increased over time, as has its power over the appointment of the Commission.[182] Besides the representatives, the Lisbon Treaty also speaks about participatory democracy: EU citizens may use the citizens’ initiative and invite the European Commission to submit a legislative proposal for adoption.[183] Moreover, the national parliaments are given an opportunity to exercise more efficient control over adopting the EU secondary legislation by supervising the subsidiarity principle’s implementation.[184] This so-called ‘early warning mechanism’ is one of the clearest examples by which the Union deviates from the classical international organisation model and makes EU democracy unique. Finally, the rule of law figures prominently among the EU identity values, while the EU Charter on Fundamental Rights (the Charter), attached to the Lisbon Treaty, has become legally binding for all Member States and does not represent any more a set of empty rights.[185]
Measured by usual democratic standards, the Union now stands closer to democracy than ever before, but it cannot be repeated often enough that it still suffers from a democratic deficit.[186] Weiler cannot be more right when he claims
that two distinguished principles of any functional democracy are missing in the European Union - the principles of representation and accountability.32 But recall here that there was a time when the European integration project had no centre of gravity to democracy, democratically elected parliament with the power to legislate, or individuals with citizenship status and protected rights and freedoms, which both exist today in the Union, albeit still with imperfections.
Much of this improvement is the work of the CJEU. By ‘parliamentising’ the EU decisionmaking, delineating the boundaries of institutional balance, encouraging participatory democracy and installing fundamental rights protection together with direct effect doctrine in the DNA of the European integrations, the CJEU turned out to be a major democracy promoter in the Union.2.2 The CJEU's revolutionary case-law on democracy
Representative democracy, and in particular the parliamentary-type model to which the EU is now apparently streaming, was anunforeseeable model of governance 60 years ago, when it all began. Originally, the Assembly, composed of the members of national parliaments, was the weakest link in the decision-making chain: it had no power to legislate but only power to be informed and consulted in areas mandated by the Rome Treaty. Legislative prerogatives belonged to the Council of Ministers, an executive authority par excellence. An important advance came first with the 1970 and 1975 Budget Treaties, when the Assembly received greater powers in the Communities’ budgetary process,33 and then with transition to direct elections in 1979. But the real democratic impetus came in 1980 when the European Court of Justice in the Roquette Freres case, interpreted the Assembly’s limited consultative power in the decision-making process as a reflection of ‘the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly’.34 The Court, thus, introduced and endorsed the principle of representative democracy in the decision-making process despite the fact that the Rome Treaty
the European Parliament is not a sovereign legislator whose word is final; it is not a parliament that supports the governing majority, nor it has a majority coalition. Other political institutions are still not fully responsible to the Parliament for all acts they adopt, nor the adaption of all crucial decisions requests the European Parliament’s approval.
See in Besirevic, supra note 25, pp. 27-28. Besides, starting from Pildes’ premise that the idea of democracy makes sense only to the extent to which political parties are allowed to fight over power, the absence of genuine European parties makes already fragile democratic credentials more obvious. See R. Pildes, ‘Political Parties and Constitutionalism’, in T. Ginsburg and R. Dixon (eds.), Comparative Constitutional Law, Cheltenham, Edward Edgar Publishing, 2011, p.254.32 Weiler, supra note 5, p.320.
33 For more see A.C. L. Knudsen, ‘The 1970 and 1975 Budget Treaties: Enhancing the Democratic Architecture of the Community’, in F. Laursen (ed.), Designing the European Union: From Paris to Lisbon, London, Palgrave Macmillan, 2012, pp.98-123.
34 Case 138/79, Roquette Freres v. Council of the European Communities, [1980] ECR 3333, para.33.
Thinking outside the politics box 81 equipped the Assembly only with a weak consultative power and provided scant support for democracy in the first place.
The Court continued to bolster democracy in Communities by firming a system of checks and balances in the decision-making progress: it first allowed action for annulment to be brought against the European Parliament,[187] and then empowered the Parliament to challenge acts adopted by other institutions (the Council and the Commission) in order to save its prerogatives (the Chernobyl case).[188] This was a real revolutionary move keeping in mind that at that time the Council dominated in the legislative process, while the Parliament had power to participate in the decision-making process only in limited cases enshrined in the Single European Act. To ensure that under such circumstances each institution does not trespass on the prerogatives of the other institutions was a big step forward in strengthening the democratic legitimacy of the Communities.[189] [190] Besides, the drafters of the Maastricht Treaty followed the Chernobyl ruling and made the system of checks and balances an indispensable tenet of the institutional balance, which in the Union serves as an autonomous version of the separation of powers principle.
Today, the European Parliament is a privileged applicant in action for annulment cases, meaning that it can always bring an action, and its acts are amenable to judicial review. The given examples should not lead to the conclusion that the Court has consolidated the powers of the European Parliament at the expense of the institutional balance envisaged in the Treaties. On the contrary, in the 2012 Listing Procedure case, it basically excluded the Parliament from the legislative proceedings in the Common Foreign and Security Policy Area, in which the Treaties gave the Parliament a minor role.[191] [192] The Court reasoning coincides with the political question doctrine, developed mostly by US courts; in line with representative democracy, this is the area predominately reserved for the national executive rule-making.Even before it became a law, some elements of participatory democracy were endorsed by the CJEU, especially the procedural protection of the individuals affected by the EU regulatory measures.[193] Yet, from the democracy perspective, probably the most significant Court decisions that moved the Communities closer
to democracy regard the involvement of individuals in the enforcement of Community law and the ‘discovery’ of fundamental rights in the European legal order. The former is exemplified in the Court’s direct effect doctrine, which empowered individuals with rights enforceable by the national courts whenever they applied the Community/EU law.42 Besides, when announcing the direct effect doctrine, the Court also reminded that Member States’ nationals were an important pillar in the decision-making process through the European Parliament and the Economic and Social Committee.43 Lastly, in a series of three initial rulings, the Court proclaimed that citizens of the Member States had fundamental rights and thus filled the most significant lacuna in the Rome Treaty - the lack of fundamental rights protection.4 Although the Court was later criticised that it did not distinguish market freedoms from fundamental rights,45 the fact is that the CJEU’s revolutionary case law safeguarded individual rights and freedoms despite underprovided terms in Treaties and placed them at the forefront of the EU legal order.
To conclude, the CJEU has not eliminated the democratic malaise of the Union, but it has managed to enhance its democratic structure considerably despite lacking normative foundations in Treaties. In addition, pitting the EU democratic credentials against the democratic credentials of today’s constitutional democracies may soften criticisms about the Union’s democratic deficit. Constitutionalism and democracy are not about to triumph across the globe. Executives tend to dominate most modern domestic politics, and populism has recently become a new secular religion. Examined through these lenses, the usual generalisation of EU democracy appears less compelling.
To return to the main issue, the Polish and the Hungarian cases testify that democratic deficit is also visible within the Member States. The EU mandate to defend domestic democracy is compatible with the nature of its democracy, which is militant. This claim requires a previous scrutiny of related underlying assumptions.
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