EU construction

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 20th 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.

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