Democracy and Legitimacy in the European Union

This essay will argue that in order for democratic legitimacy and policy effectiveness to be enhanced across the EU, elite-driven political integration needs to be halted. Where it is in the interests of both ‘input’ and ‘output’ legitimacy and effectiveness, decision-making powers on a host of issues should be returned to national parliaments.

‘Inputs’ and ‘outputs’ are defined by Robert A. Dahl; the former measures the democratic powers of ordinary citizens; the latter “system effectiveness”—the quality and effectiveness of legislation. Dahl cites the Danish referendum on Maastricht in 1992 as an example of the ‘choice’ European countries face: preserve the democratic authority of their nation state and maintain citizen input power over government, even though some issues might be beyond the capacity of national governments to solve, or increase the powers of supranational EU institutions to deal with such large issues, even though citizen input power will be significantly reduced in a large unit (the EU) than in a smaller unit (Denmark) (Dahl 1994: 23-24).

The fact that European political integration is an elite-driven phenomenon lacking a democratic mandate from the people of the EU is obvious from the recent conduct of EU institutions and supporters regarding the proposed ‘Treaty Establishing a Constitution for Europe.’ In June 2005 the treaty was put to a referendum in France and Holland, two of the original members of the European Coal and Steel Community. Both countries voted ‘No’, upon which the ratification process was suspended, the constitution being dead in the water without the political participation of two such influential states. Under the German presidency of the European Council running from January 2007, impetus was generated for a new ‘Reform Treaty’ to replace the old constitutional proposal, with what has since become known as the ‘Lisbon Treaty’ signed by all members of the European Council at Lisbon in October 2007.

The open secret of the treaty as far as democratic legitimacy is concerned is it’s remarkable similarity to the constitution that was rejected by the French and Dutch electorates just over two years earlier. Margot Wallström, the European communications commissioner was quoted in July as saying that the ‘Reform Treaty’ was “essentially the same proposal as the old constitution”(http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/06/27/nblair827.xml). On the 26 October 2007 Valery Giscard D'Estaing was even more explicit in a letter to Le Monde, stating: “the tools are exactly the same ones, only the order was changed in the toolbox.” This was achieved by “modifying the former treaties by way of amendments”, in his words: “the result is that the institutional proposals of the constitutional treaty—the only ones which counted—are found complete in the treaty of Lisbon, but in a different order, to be inserted in the former treaties” (http://www.lemonde.fr/web/article/0,1-0,36-971315,0.html).

Giscard d'Estaing is not the only prominent member of the European political class to voice such sentiments. Jose Manual Barroso, the president of the European Commission boasted that the revamped treaty would create “the world’s first non-imperial empire.” Angela Merkel commented in June 2007 to MEPs that the substance of the constitution “had been preserved…that is a fact.” Arrogance and self-deception was best exemplified in the immediate aftermath of the 2005 French and Dutch ‘No’ votes by then European Council president Jean-Claude Juncker, who remarked "If we were to add up the votes of those who wanted 'more Europe' as a 'yes', then I think that we would have had a 'yes' vote”, further stating the need to “continue with our ambitious project” (http://www.referendum.org.uk/main/euindenial.html).

Alongside the Danish ‘No’ vote on Maastricht, the Irish ‘No’ to the Nice Treaty, and the Commission’s own ‘Eurobarometer’ polls that reported in 2003 a majority in just 9 of 15 member countries supporting EU membership (Hix 2005: 154), it should be easy to deduce that there is little public enthusiasm for a ‘European Union’—still less for increased supranational powers. Integration is only being achieved by ignoring the protestations of Europe’s voters—something that Nicolas Sarkozy openly stated in what he thought was a closed meeting of MEPs on the 13th November 2007 (http://eureferendum.blogspot.com/2007/11/politics-of-contempt.html). Democratic input legitimacy can be linked to transnational integration, but only when voters are supportive. When they are not, or are simply ignored, then political integration is illegitimate and ultimately counterproductive for the EU in that it disconnects the people of Europe from institutions of governance, and increases apathy and resentment.

A man of Sarkozy’s nationality should be especially aware of the dangers to a body politic that can result from too great a gulf emerging between the rulers and the ruled. There is also the danger that both Katz and Wessels (Katz & Wessels 1999: 3-7) and Mette Jolly highlight: that supranational integration can actually undermine rather than enhance the idea of European identity. She notes: “if the unhappiness a subject feels about a right being granted to others exceeds the happiness he feels about personally gaining the same right, he will not consider the right a net gain, unless he feels solidarity towards or identifies with the other individuals to whom the right is given. For this reason…an increase in EU-wide majoritarian decision-making would lead to a further loss of democratic legitimacy” (Jolly 2005:15). Earlier in her article she notes the right to travel without passports between nations, and the right to take up employment in other EU countries as examples of contentious “rights”—topical when one considers the recent controversy in Rome over the influx of Romanian immigrants, tensions not likely to dissipate owing to the combination of EU expansion eastwards, the right to free movement under the Treaty of Rome, laws such as Directive 2004/38/EC and Regulation 343/2004, and Article 69 of the Lisbon Treaty (http://www.consilium.europa.eu). Unwanted integration not only weakens national sovereignty, but can also undermine what little demos the EU already has.

The fact that political integration is a subtle “underground” (Duchêne 1994: 256) process largely immune to democratic pressures is largely a result of the so-called ‘Monnet method’—or as others would call it ‘neofunctionalism.’ This goes a long way to explaining why the EU can be good at output legitimacy, but as Mazey and Richardson point to, fail when it comes to the democratic legitimacy of it’s input processes, increasing popular dissatisfaction with the EU (Mazey & Richardson 2006: 247-250). Neofunctionalism posits that supranational integration in one area—for example, the creation of a common agricultural policy—inevitably leads to ‘spill-over’ (Wallace & Wallace 2000: 191): pressure from agricultural interests and concerned politicians for the harmonisation and integration of other formerly national policy competencies on the grounds of parity, efficiency and the goal of a ‘common market.’

This may deliver good output results, but as Hix points out, the technocratic, elitist nature of the process means that policies are not tailored to the collective preference of citizens as they are in normal democracies. He writes: “where the EU is concerned, policies might be in the interests of citizens when they are first agreed, but without electoral competition there are few incentives for the Commission or the member state governments to change these policies in response to changes in citizens’ preferences.” Leading on from this, without informed debate that is an “inherent by-product of electoral competition” voters are left unable to form preferences on political issues. Lastly, he notes that in the course of European history it has been electoral participation and competition that has traditionally led to the formation of larger national identities (Hix 2005: 179-180). For those who subscribe to the 2001 Laeken proposals that attempt to create a European demos (COM 2001: 3), history shows the causal chain is more likely the other way around.

This is why halting integration and returning certain policy competencies to national governments is good not only for the input legitimacy of the countries that make up the EU, but also for the very idea of a ‘European Union.’ As shown previously, the EU’s current lack of democratic legitimacy means that those in favour of increased supranational powers—such as the current European Council—can only proceed by ignoring the voices of majorities opposed. If people believed that on a range of issues, they were once again masters of their own destiny, it would do wonders for the democratic legitimacy of remaining Commission competencies, enhancing peoples faith in the motives and abilities of streamlined EU institutions, and do more to create a European demos than any number of current bureaucratic initiatives.

Much of the literature on the EU by the likes of Moravcsik and Temple Lang presumes a ‘see-saw’ relationship between inputs and outputs; if one gains, the other must suffer. In their view, this legitimates the lack of democracy inherent in the current structure of the EU; it is ‘enlightened technocracy’ whose output effectiveness and neutrality would be harmed by increased civic participation in the policy formulation process (Temple Lang 2002: 315-335).

The Common Fisheries Policy should serve as an example of why this is questionable. The Hague conference in 1976 had finalised arrangements for the CFP to commence from 1980, but owing to bitter arguments between governments over a system of national fishing quotas known as ‘Total Allowable Catches’ (TACs) the start-date had to be delayed until early 1983. Booker and North go on to list some of the problems that have blighted the CFP, such as the disparity between national regulatory systems that allows certain countries to land catches over their TAC limit, arguments amongst fisheries ministers—aiming to push their national quotas higher—that resulted in statements “about allocations of fish in excess of 100% of the quantity theoretical available”, and perhaps the most damning argument of all: that “dictating to fishermen the quantities of each fish they were permitted to land ignored the most basic realities of fishing. When fishermen hauled in their nets, they often caught a range of species for which they had no quota. Since it would be a criminal offence to land these, their only alternative was return their “illegal” catch to the sea, by which time the fish would be dead” (Booker & North 2005: 251-252).

Within a few years this was causing an ecological catastrophe. The Commission’s own 1991 mid-term report on the CFP to the Council and the European Parliament noted: “In the North Sea discards of haddock may exceed what is obtained in a single trawl; the global estimate for 1985 was 460 million discarded individuals, whereas landings amounted to 500 million individuals. In the Bay of Biscay/Celtic Sea discards of hake were estimated at 130 million individuals, for a landing figure of 110 million” (ibid: 372). As this BBC report from November 20, 2007 shows, figures from the British government estimate 186 million fish were caught in UK waters last year, and 117 million were discarded (http://news.bbc.co.uk/1/hi/uk/7102241.stm).

Yet—as Booker and North note—discarding is illegal in Norwegian waters, where the Norwegian people remain free to make their own fishing laws. On this issue, the notion of trade-offs between inputs and outputs is meaningless. National governments, responding to the needs of their domestic fishing industries were perfectly capable of designing economic, ecologically sound fishing policies without the need for supranational interference. Political integration does not necessarily mean increased output effectiveness. Recognition that certain issues such as fisheries are better handled at the national level and that the CFP should be abolished would increase the democratic legitimacy of fishing policies—and increase their output effectiveness.

The vast number of directives and regulations issued by the Commission in anticipation of the launch of the Single Market in 1993 provide other examples of ineffective policy outputs resulting from the elitist nature of EU policy input processes, leading to festering resentment with supranational effectiveness and legitimacy. A documented example should serve to clarify this point. In Farcet, Huntingdonshire, Tom Chamberlain ran a butchery business that had been run by his family for 100 years. In 1992 he was named Champion Sausage Maker of the East of England Show. Soon afterwards the Ministry of Agriculture, Fisheries and Food (MAFF) informed him that under the Fresh Meat (Hygiene and Inspection) Regulations 1992, implementing EC directive 91/497 he would have to make extensive structural changes to his premises. If he did not, then on 1 January 1993 he would lose his licence, forcing him out of business. Although his butchers shop was only just across the yard from his slaughterhouse, he would no longer be allowed to carry meat between them unless he built a refrigerated tunnel between the two buildings. Among many other requirements, he would also have to build a shower and rest room for ‘visiting lorry drivers’, even though most animals arriving at his slaughterhouse came from farms within five miles radius. Contemplating the cost of these changes, he concluded over the Christmas that he had no option but to cease trading (ibid: 355-356.)

In this example and countless others, common sense is abandoned for overly prescriptive, heavy-handed regulation, of the type that cripples businesses not rich or big enough to cope. Heritier comments that the ‘supportive networks’ that make up the policy committees that advise the Commission on new laws generally involve “public and private, but mostly corporate actors”, further noting that “networks try to create support for European policies by distributing benefits and regulatory advantages to the actors in the network, thereby creating output-legitimation” (Heritier 1999: 273).

It is not hard to imagine the interests of Tesco or Carrefour well represented in such groups, less so the interests of traders like Tom Chamberlain. The very structure of the EU predicates against anyone but the wealthiest societal interests having their voices heard, more so than in most parliamentary democracies where it is at least possible—in H.L. Mencken’s memorable phrase—to “throw the rascals out” if voters are unhappy with policy output. Changing Commission policy on a given issue via the European Parliament is problematic (Wallace & Wallace 2000: 98)—the only elected EU institution— and committee stages that receive substantial input from corporate actors (ibid: 99-101, 105, 144) working towards one-size-fits-all-countries common market regulations are unsurprisingly likely to result in a regulatory regime tailored to the competitive advantage of big corporations.

When EU action results in good policies, people can stomach the elitist, technocratic nature of the process (Scharpf 1999: 6, 22). When it doesn’t, and there are grounds for believing nation states could design more effective regulatory regimes with both wider civic input, and greater effectiveness and accountability of outputs, the rational for supranational policies again has to be questioned. The Commissions own 2004 annual report on ‘Competitiveness’ blamed ‘red-tape’ for much of Europe’s recent “sub-optimal economic performance.” The report claimed that by adopting a lighter regulatory regime as practiced in the U.S. the EU could raise its overall GDP by a staggering 12 percent. Circa 2004, EU GDP totaled £5,000 billion; this amounts to admitting that Brussels’s regulatory system costs EU members £600 billion a year in potential production (http://ec.europa.eu/enterprise/enterprise_policy/competitiveness/doc/comprep_2004_en.pdf).

Part of the problem lies with the ulterior motives that underlie the ‘Monnet method.’ As Jean Monnet, Arthur Salter, Paul-Henri Spaak, Altiero Spinelli and other leaders and intellectuals posited, in order to create a politically unified Europe, regulatory structures had to be ‘denationalised’ and reformulated supranationally so as to create ‘interdependence’ amongst the nations of Europe. In Monnet’s words, this would in time lead to “European economic unity. Only then would…the mutual commitments make it fairly easy to produce the political union which is the goal” (Duchêne 1994: 312). The common market, CAP and CFP were not designed primarily out of concern for effective policy output, but to lay the groundwork for political union by breaking the regulatory independence of member nations.

This is why in 1956 when Jean Monnet and Paul-Henri Spaak were involved in intergovernmental talks that were to lead to the Treaty of Rome in 1957, they were keen to marginalize Ludwig Erhard—the German Minister of Economics—an advocate of a western European free trade area, in contrast to Monnet and Spaak’s desire for a customs union. A free trade area would lack a common tariff wall against outside imports, and consequentially would need no supranational structure to receive and redistribute tariff revenues. It would do nothing to promote economic—and eventual political—‘interdependence’ (http://eureferendum.blogspot.com/2004/05/myth-of-week.html).

A recognition from the supranational institutions of the EU that increasing their powers is no longer an unspoken end-goal would clear these institutions to best think about how good output effectiveness and legitimacy can be achieved with a reduced portfolio of competencies. This concurs with Moravcsik’s view that democratic input legitimacy is an inappropriate goal for the EU (Moravcsik 2002: 603). Moves to create greater input accountability—such as giving the European Parliament powers of legislative initiative—would only heighten the tension that Jolly points to: of peoples not accepting the legitimacy of majoritarian redistributive policies where they feel they lack a common demos with those benefiting from redistribution (tensions between England and Scotland over public spending are a good example of this.) The logic for EU action on many issues seems weak (why, for example, does there need to be a European Police College http://www.cepol.europa.eu/index.php). Agreement with member states over which policies are best decided and regulated at the national level would remove much of the tension over the democratic legitimacy of the EU—for the simple reason that more democratically responsive national parliaments would be being empowered at the expense of EU institutions.

It must be reemphasized that this rebalancing of powers is in the long-term interests of the EU. The demos that the Commission wishes to build from the top-down is an illusion; Europeans have made it clear that the “permissive consensus” that has traditionally underpinned political integration is dead. Ignoring the will of the people is not good for the long-term health of the EU.

Neither is maintaining supranational power over issues for the sake of facilitating political union. Leaving aside the lack of democratic input compared to national parliaments, a reduction in Commission competencies would protect areas where there is good cause for supranational policy, but re-empower national governments where this is not the case. He who governs least governs best. The EU should learn this, for every Europeans benefit.

Word Count: 3034






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