TOPIC 1: INSTITUTIONS AND DEMOCRATIC DEFICIT

- Article 13 TEU lists the EU Institutions:

- 3 POLITICAL INSTUTIONS and the Court of Justice (Judicial Function)
- European Commission
- European Council
- European Parliament

- Each institution represents and promotes a particular interest.

- Council – where MS can push their own national interests
- Europe as a whole – European Commission
- Represents EU citizens – European Parliament.

- EU = open ended process – don’t know where it is heading.

- Institutions have been thereby changing all the time with treaties – created to
govern specific sectors concerning European Affairs.

- When it comes to decision making and law making within EU – must pass
through all three institutions.
- TWO types of Law: Directives and Regulations:
- Regulation = immediately effective on a stipulated date and infringement is
punishable by the EU itself.
- Directive = law which is passed onto a MS government, which must pass
directive on as a local, national law.

DEMOCRATIC DEFICIT

- Manifested in centralisation of powers – “too few people taking too big

decisions.”

- Democratic deficit is a term used by people who argue that the EU institutions
and their decision making powers suffer from a lack of democracy and seem
inaccessible to the ordinary citizens due to their complexity.

- Democratic legitimacy is achieved where there is a high degree of trust in a

political system

- Article 10 TEU – EU is meant to be based on representative democracy but in

last 10-20 years/ since EU was founded – democratic credentials of EU as an
international organisation have been called into question

- Aspects of democracy – accountability, legitimacy, transparency.

 - Article 11 – EU and its relationship with the people – gives the idea of citizens
initiative – ways for groups of citizens to directly engage with the legislative
process of the EU.

- Article 12 – deals with relationships between national parliaments in the EU

and the principle of subsidiarity – idea that EU should only legislate in areas
where it is better for EU to act as a group rather than MS to act individually e.g.
in areas like defence it is better for UK to decide on its use rather than EU,
whereas agricultural policy would be better for EU.

THE COUNCIL

- Used to be called ‘Council of Ministers’

- Key institution within Europe – main decision making body, makes final
decision on most European Legislation, although now, it mostly has to make
decisions together with the Parliament.
- Very important institution in making EU Law

COMPOSITION
- All 28 Member States send a representative to Council meetings –
representative is usually the departmental minister or junior minister with
responsibility for the subject under discussion.

- NOT directly elected by citizens.

- Council has nine different configurations – e.g. Economic and Financial,

Employment, Social Policy, Health and Consumer Affairs, Agriculture and
Fisheries.

- MS hold the presidency in rotation for six month periods (except for Foreign
Affairs and Security Council which is chaired by the High Representative of the
Union for Foreign Affairs and Security – currently Baroness Cathy Ashton.

- Traditionally secretive operation – must now meet in public if making new

laws.

FUNCTION
- Making Legislation with Parliament
- Coordinating the economic policies of Member States
 - Devising and agreeing the budget
- Appointing members of the Court of Auditors
- Concluding agreements with international bodies and non-EU countries

- Has its own “civil service” Coreper and a General Secretariat providing
administrative assistance and handling all the necessary preparatory work

DECISION MAKING
- Decisions within the Council are taken on the basis of;
- A simple majority; or
- Unanimity but more often
- A qualified majority: requires approval of 55% of the member states
representing at least 65% of the European Unions Population (also called
double majority)
- Under Article 16(3) TEU, making decisions in Council by a QUALIFIED
MAJORITY is the normal way to proceed.
- Idea is to weight votes to reflect the population of each MS and to prevent
groups from forming to either force through or block progress

- New “Double Majority System” based on population and the number of states
comes into effect in 2014
- For most important decisions, unanimity is still required
- Abstention does not prevent a measure proceeding – MS must actively veto to
stop an action.

- Place where MS can promote their own national interests -

- HARTLEY, ‘The Foundations of European Community Law’ – “in the

Council, Member States try to achieve what they want by negotiating with each
other, influence other Member States, even by offering something in return –
‘We will vote for you on issue X if you support us on issue Y’ – or by
threatening to cause trouble.”

DEMOCRATIC DEFICIT
- Not directly elected by citizens
- ROLE
- Executive – helps initiate legislation alongside the commission.
- Legislative – also part of co – decision alongside EP
- Raises questions regarding SOP – is council democratic or is EU as a whole
democratic? When council can have powers that sit across both lines

- Qualified majority voting – each country has a number of votes based on its
population
- Big countries like England, Germany and France have a lot of votes in the
council whereas small countries like Malta and Cyprus don’t have many votes
because they have smaller population
- Ensures a majority of the EU population support legislation
 - Struggle to balance between equality and that votes should reflect population
- Has been criticized because can discriminate against smaller countries – bigger
countries can gang up against smaller countries.
- Larger states may use pressure to force their interests through: threatening to
withdraw/to block progress/ boycott/

- Element of democracy in appointment in that council comprises of ministers of

MS who in many cases will have been indirectly chosen through national
democratic processes.

EU COMMISSION

- Based in Brussels
- Led by Jean Paul Juncker
- Has one member for each Member State
- TEU suggests this number will move to a number of commissioners equivalent
to two thirds of the number of MS from 2014, European Council has
unanimously agreed to retain one member/one state for time being.

- President is proposed by the European Council and elected by Parliament

- MS draw up a list of commissioners to be adopted by the council voting by a

qualified majority and by agreement with the president.
- Parliament MUST vote to approve the commission

- The role of the commission is to further Europe’s interest independently

from and above that of individual member states. Must appear to stand
above national rivalries, unbiased and independent.

FUNCTION
- Once appointed, commissioners are obliged to promote the general interests of the
EU and not to take orders from the MS who proposed their appointment.
- Must be persons whose independence is beyond doubt.
- KEY TASKS:
- Initiating legislation
- Monitoring observance of EU Law
- Administering EU Legislation
- Representing the EU in international organisations
 - Article 258 – responsible for the enforcement of EU Law
- CAP – common agricultural policy – area of Law in relation to farming where
most of EU budget gets spent
-
- Sometimes known as “THE GUARDIAN OF THE TREATIES” – underlines its role
of policing EU Law
- Although it is the driving force behind each EU action, it must also respond to
requests for proposals from the Council (ART 242 TFEU) the Parliament (ART
225 TFEU) and any group of one million or more citizens from a number of
Member States (ARTICLE 11 TEU)
- Commission negotiates with the council to promote the unions interests,
represents the union on the international stage and also within the EU – in
courts of MS and where necessary before the Court of Justice.
DEMOCRATIC DEFICIT
- Commissioners are appointed by member states and there is oversight by EP
but generally doesn’t extend beyond questioning potential commissioners. If
they did want to vote them out they would have to vote out whole commission
so no real oversight

- Appointed by the council – no real engagement with the citizens of EU in the

appointment of really important body – EP does get a say but it is not a
massive part of the decision – mainly between MS and EU council.

- Not directed by citizens and not democratically appointed but has

considerable power in the making of law and policy in the EU indicating its
composition and functioning is undemocratic.

- Presidency

- Council votes for a nominee, which is approved by EP

- EP does get a veto as to who is the president – but council have biggest say and
call shots as to who is on the commission.
- Commission is supposed to represent EU as a whole and national interests
shouldn’t play here – but reality is it does work like this
- Why can’t EU directly elect a president? – everyone should get a vote rather
than being done behind closed doors
- Have been attempts to democratise the commission through engagement with
civic society but for most people haven’t gone far enough.
 EUROPEAN PARLIAMENT

- Currently 751 members

- MEPs are directly elected by citizens voting in each of the 28 Member States of
Europe
- Elections are held every 5 years
- Elected by Union Citizens.
- In the last election, 34.7% turned out in the UK, slightly below EU average
turnout of 43%
- Each MS is allocated seats according to the size of its population.
- Germany have the most (99)
- Malta have the least (5)
- UK currently has 72.

FUNCTION
- Parliament broadly exists to represent citizens’ interests, and in that respect
operates in 3 key areas:
- Making Laws
- Checking the budget
- Supervising the Commission

- Successful reforms have given MEPS more power particularly in the making of
Law.

- EU’s “ordinary legislative procedure” (ARTICLE 294 TFEU) means Parliament

makes law jointly with the Council.

- Though commission drafts the budget, Parliament and the Council need to
approve it

- Treaty of Lisbon extended Parliaments powers here so that it may now amend
any expenditure. If the Council and Parliament cannot agree on amendments,
the Commission has to draw up a new draft budget
 - MP’s have to approve a new Commission before it can take office, they subject
Commissioners to a weekly “question time” and have power to force the entire
Commission out of office (Article 17(8) TEU) by passing a vote of censure.

- MEP’s sit in party political groupings rather than with colleagues from their
own Member State. Meets in weeklong plenary session once a month in
Strasbourg (except August)

- Shorter sessions of one or two days are held in Brussels.

- Parliamentary secretariat is based in Luxembourg

- Parliament also operates a series of committees e.g. Foreign Affairs, Transport

and Tourism, Women’s Rights and Gender Equality e.t.c

DECISION MAKING
- Decisions are taken by majority vote
- To ensure genuine consensus on a range of decisions an absolute majority of
all MEP’s must be reached (i.e. it would not be successful if too few MEP’s
participated)
- IF Parliament wishes to censure the Commission then the support of 2/3 of
MEP’s must be secured
- Fact that MEP’s are directly elected by EU Citizens clearly gives the institution
a measure of democratic legitimacy.
- Other important questions include: are its procedures transparent and can it
control other institutions with which it shares power?

DEMOCRATIC DEFICIT
- Has been directly elected since 1979
- Every 5 years there are elections by the people to elect their representatives
like in a normal representative democracy
- When EU first started, EP did not have much power
- Increased powers since 1986 with single European act
- Most legislation is now passed through ordinary legislative procedure – EP
gers a veto on legislation
- Since treaty of Lisbon, has been greater scrutiny of commission and council by
EP
- EP is main focus point of democracy in the EU

BUT

- POOR VOTER TURNOUT

- Decrease in voter engagement over decades since EP elections were first held
in 1979 – during this election voter turnout was 63%
- 2014: 42.6%
- Since 1999, turnout in European elections has ever exceeded 50%
- And in 1999
- In UK more people voted in final of big brother (23 million) , than in the EP
elections(11 million.)
 - Unhealthy for democracy – political accountability may disappear with
decrease in voter engagement.

- Shows a lack of engagement by general public with the EP – people just

aren’t interested – suggests citizens have lost faith and makes no
difference whether they vote or not.
- in absence of political accountability, governance at EU level and elected
representatives MEP’s may only focus on priorities of those who interact with
the political climate around them putting citizens who chose not to vote at risk
of exclusion

- Might be reasons for that

- Even though you can vote for a conservative MEP, labour MEP Etc, the party
system within EP is a bit confusing

- Conservatives aren’t conservatives in EP – part of a different party along with

other MEP’s from different countries
- E.g. European peoples party – crosses across national barriers – doesn’t really
make a lot of sense to people and confusing
- Even though EP has been given more power – people are less interested in it as
an institution
- “like a nervous gambler doubling his bets after a series of losses.” DAVID
SCHLEICHER – Harvard international law journal.

- Cannot veto specific members of commission body

THE COURT OF JUSTICE

Composition
- Court of Justice has one judge from each MS plus 8 Advocates General – who
are appointed by agreement between MS
- Professor KLAUS – DIETER BORCHARDT described mechanisms used by MS
for choosing judges as ranging from ‘not very transparent to totally
impenetrable’
- Must be candidates whose independence is beyond doubt who have the
qualifications for the highest judicial offices in their MS or who are recognised
legal experts.
- Court sits in various formations; all judges; a Grand Chamber of 13, or smaller
chambers of 5 and 3.
 - Court was established in 1988 to ease the pressure on the Court of Justice
- Has 27 judges similarly qualified as those of the Court of Justice
- Since its founding, its role has increased and it can handle actions for
annulment and failure to act; deals with appeals from judicial panels and there
is a plan in future to enable it to deal with preliminary rulings in certain areas.

FUNCTION
- To “ensure that interpretation and application of the Treaties the law is
observed”
- Monitors the way that MS, EU institutions and individuals apply EU law
- Sole authority on interpreting EU Law and thus shapes development of specific
laws and the very constitution of the EU. Both offers advice and adjudicates
cases

- Court procedure is inquisitorial

- Advocate General acts as an independent advisor to the court preparing a
reasoned opinion which is delivered in open court before the judges deliberate
- Rules both on individual actions brought by MS, institutions or individuals and
importantly gives preliminary rulings in response to requests from courts and
tribunals of MS

DEMOCRATIC DEFICIT
- One judge from each MS – all MS are represented
- Varied judge background: private practices/ held political or admin offices –
uneven quality of judges
- Can be jurisconsults – may not have been eligible to be judges in own countries
- Idea is that each judge should put aside national interests and work towards
the interests of the EU

- Interpret law or make law?

- Going beyond its remit and acting as a legislative body
- Have been times where COJ has overstepped the mark but generally COJ works
quite well.

DEVELOPMENT OF DEMOCRATIC LEGITIMACY

- Maastricht treaty introduced – status of EU citizenship, giving EU citizens the
right to vote and stand in elections to the EP and municipal elections in their
country of residence, irrespective of their nationality
- Legislative procedure known as “co-decision procedure” – giving the directly
elected EP the right of “co-deciding” legislation on an equal footing with the
European Council.

- Treaty of Lisbon – confirmed that the functioning of the EU shall be founded

on representative democracy and give EU citizens both direct representation
through EP and indirect representation via national gov through European
Council.
- Establishment of co-decision as the standard legislative procedure
 - Increase in powers of the EP
- Right of any EU citizen or resident to petition the EP
- Making meetings of the council public when there is a general debate and
when a proposal for a legislative act is voted on – can be viewed in real time on
internet
- Enhancing the role of national parliaments in EU legislation

- In conclusion, the fact that the European Parliament, only directly

elected EU institution holds the last power, supports the view that the EU
is lacking in democracy.
- However, with the introduction of co-decision, its extension to more
policy areas by amending treaties and its current status as the primary
procedure for legislative documents, the democratic deficit is being
gradually addressed.

- Lean towards one side or other in conclusion – but think of ways that EU could
become more democratic – directly elected president? More direct engagement
with citizens – flaws of democracy and how can they be resolved…?