THE WARSAW INSTITUTE REVIEW

Date: 24 September 2018    Author: Tomasz Grzegorz Grosse, PhD

On Democracy in Europe

Democracy constitutes the core of Europe’s political culture . At the same time, it is endangered by the ongoing processes of European integration. As for the European Union, it has no proper legitimacy while such phenomenon is referred to as a democratic deficit.

EU institutions are increasingly restricting democratic practices in its Member States. This is due to two main reasons: first, the EU aims to improve the efficiency of the management of public policies, and second, it seeks to develop the so-called integration “through law”, as well as through observing the rule of law principle. The goal of the following article is to analyse certain European problems with democracy using the example of two basic mechanisms of European integration: the first concerns the integration “through law” and European constitutionalism. Here, I will focus in particular on the example of the Court of Justice of the European Union (CJEU) as well as its policy of extending the scope of EU law, seeking to enhance the competences of EU supranational institutions and the protection of the rule of law principle within the community. The second mechanism is related to the majority voting procedure in the EU, which appears to be more and more frequently used within its structures. Both instruments are considered problematic in light of democratic standards. According to some scholars, such mechanisms[1] may therefore result in the rebellion of Member States along with their societies against EU institutions and thus might deepen further disintegration processes in Europe.

Democracy still important for voters

Modern Europe’s problems with democracy seem to be a major challenge for future integration processes. Some research has referred to the “democratic deficit” in the EU or insufficient political legitimacy for the European project[2]. The most well-known typology specifies two types of legitimacy: the first is the so-called “input legitimacy”, which is typically based on a mandate granted via general scrutiny[3]. According to the aforementioned research, such legitimacy appears weak in the European context[4]. The second type of legitimacy, hereby referred to as “output legitimacy”, regards essentially the direct results of all policy-making processes. That is why it is justly specified as “utilitarian legitimacy”. In times of economic prosperity, when the European Union was not tormented by any serious crises, the issue of insufficient “input legitimacy” was usually downplayed; instead, the community was rather praised for its usefulness in relation to the Member States, being alleged to provide better solutions to social and political problems. Therefore, utilitarian legitimacy was expected to constitute the very core of both the EU’s political authorization and its subsequent progress. Yet this sometimes occurred at the expense of reducing the influence of electoral politicization while progress in integration acted to the detriment of “input legitimacy” of the political process. Nonetheless, electoral mechanisms constitute the very core of democracy while utilitarian legitimacy has only a complementary character.

During subsequent crises it turned out that all claims concerning the EU’s higher utility had been severely dented whereas utilitarian legitimacy ceased to justify the EU’s power over European societies. According to polls conducted by Eurobarometer, such was the feeling of at least a large part of EU citizens[5]. Therefore, it can be assumed that the EU’s structure is properly legitimated during “good times”, but not during periods of trouble. Before such problematic situations started to emerge, progress in integration processes enjoyed some social consent, even though the project did not fully meet all democratic criteria. In the literature on this subject matter, such phenomenon is generally referred to as the period of “permissive consensus”[6]. Citizens allowed political elites to make decisions on the EU’s essential affairs as long as there were no major problems; it was only later that they began to monitor the issue of integration – either to criticize it or to question its further development. Such was the manifestation of electoral politics, which had until recently been either dormant or simply ignored by the elites during some integration processes. This new political period has been referred to as “constraining dissensus”, which was equivalent to reducing integration processes by dissatisfied Europeans. Interestingly, some scholars have been wondering why certain societies eventually decided to accept integration processes, bearing in mind that they kept evolving without any proper democratic mandates for quite a long time[7]. Additionally, experts claim that the growing importance of electoral politics in the EU, thus the ever-increasing role of voters in political processes at the European level, may exacerbate hitherto crises and prevent integration from fully developing[8]. Moreover, the European Union lacks the adequate democratic legitimacy to conduct such radical reforms that would make it possible to deal with the aforementioned impasses as well as to ensure more effective governance, understood in terms of greater utilitarianism of the European project.

Integration mechanisms: not really democratic

It is vital to indicate two basic integration mechanisms. The first is referred to as integration “through law” or “European constitutionalism”. This consists of granting European law supremacy over national law, as well as envisaging the systematic strengthening of the competences of the European Commission (EC) and the Court of Justice of the European Union in ensuring proper implementation of EU law in all Member States. In light of the discussed concept, European treaties aspire to become EU constitutional law whereas the CJEU is eager to be perceived as the constitutional court for the entire community. Under the notion of integration “through law”, as mentioned above, both treaties and European law tend to encompass more and more public affairs. In addition, these two institutions actively seek to extend their current scope of competences as well the impact of EU law, even beyond the literal understanding of treaty provisions, which in fact influences some spheres controlled exclusively by the Member States[9].

As for the second mechanism responsible for deepening integration, this concerns the ever-growing number of cases submitted to intergovernmental institutions (mainly in the EU Council) that are subsequently handled through the majority voting procedure. This institution plays a leading role in legislative procedure (“community method”), even despite the fact that it is the European Commission that has a near monopoly on legislative initiatives while the European Parliament is also involved in the legislative procedure. In addition to improving governance, majority voting speeds up the law-giving process as well as facilitating the adoption of more effective solutions and not only those that could satisfy all interested parties. Nonetheless, such procedure shifts power in the EU to the community’s largest states, which only intensifies during times of crises, and what I personally refer to as the systemic tendency towards the “asymmetric confederation”[10].

Thus, scholars claim that these two main integration development mechanisms should not be perceived as purely democratic tools. According to Fritz W. Scharpf, integration “through law”, along with expanding the competences of both the EC and the CJEU, seem highly problematic from the perspective of democratic principles[11]. The former lacks appropriate electoral input legitimacy while the latter does not have at its disposal adequate political supervision from the elected “majoritarian” institutions. Being part of the trias politica model, the judicial system shall indeed enjoy some autonomy; nonetheless, it cannot be completely free of influence exerted by the electoral politics in any of the world’s democratic countries. Such claim may be evidenced by the fact that in many democratic systems voters, parliaments or representatives of the executive branch have the right to appoint judges, or to influence the choice of the state’s highest judicial bodies, with particular regard to members of constitutional courts. Moreover, the EC tends to extend the scope of impact exerted by European law also on the domains being within exclusive competences of Member States and those that have been nominally excluded from the jurisdiction of the CJEU. The Commission interferes in these areas on the pretext of protecting liberties on the common market as well as taking advantage of referring Member States to the CJEU. Such was the case of the limited use of military offsets by EU countries, even regardless of the fact that both security and defence matters were excluded from the rules related to common market (pursuant to Article 346 of the TFEU)[12]. As for the Court, it tends to agree with the Commission in such cases.[13] Needless to say that, under the CJEU rulings, also in some matters in which the European Union has no competencies, Member States shall exercise their respective powers in accordance with European law[14]. Such attitude violates the democratic principle, according to which only sovereign political communities, backed by their democratically-elected representatives, are entitled to pass competences to international institutions.

In addition, more and more cases of majority voting have emerged, the procedure of which raises some concern about its compliance with democratic principles. The EU is closer to a confederal rather than federal solution, thus constituting first and foremost a union of equal states while its democratic mandate derives primarily from scrutiny carried out in subsequent Member States. Many scholars urge that the EU should be referred to as a “demoi-cracy”, and not as a “democracy”; it forms a union of democratic national communities (demoi) that has failed to develop into a uniform European community (demos). So, voting processes in such systems shall be primarily based on consensus, understood in terms of unanimous decisions made by their members. Thus, it is not democratic to let one national community – or a group of them – to outvote any other ones. Under EU principles, all democratic communities shall be equal with no apparent dominant structure[15]. Thus, providing only one of them with a greater number of votes and – more importantly – outvoting some other communities in the Council of the European Union – does not comply with democratic legitimacy. If the European Union had the intention to apply majority voting in its institutions, such occurrences would have to take place only in cases where a losing minority could be entitled to take advantage of the opt-out right, which would allow them to exclude themselves from a given regulation without a need to implement it on their territory[16]. For instance, such was the case of the Central European countries that voted against legislation on the compulsory relocation of asylum seekers in the EU in 2015 when having been outvoted by other Member States, they refused to enter the directive into force in their respective national systems. Although such behaviour constituted an example of violating EU law as well as the principles of “European constitutionalism”, they acted according to democratic rules.

This brings me to the main conclusion of this part of the paper. The essential problem of the EU results basically from the choice between the greater effectiveness of its governance and fidelity to the aforementioned democratic principles. Nonetheless, today’s political reality makes it impossible to meet both of these criteria while any undertakings aiming to enhance action effectiveness are immediately associated with disregarding democratic legitimacy. The fact of obeying such strict democratic norms translates usually into a detention in action efficiency as well as difficulties occurring at the decision-making level in the EU institutions. This is dramatic for the European project, constituting a situation with no simple solution, which has additionally worsened during subsequent crises.

Rule of law as a mechanism for the integration progress

One of the most important instruments of the integration “through law” is the practical implementation of the rule of law principle. Its main task is to defend the authority of European law and its supremacy over national law. In addition, it constitutes a source of power for the EU institutions, with particular regard to the European Commission and the Court of Justice of the European Union, as both of them account for the interpretation of rule of law and its observance in EU Member States. Thus, such principles mainly seek to promote a specific vision of integration, based on the expansion of European law as well as the competences of the EU institutions. Thus, the above-mentioned rules reconcile the supranational interests of both the European Commission and the Court of Justice of the European Union. However, in Europe, the rule of law tends to be exercised in a rather flexible, discretionary and often arbitrary manner. Such approach gives the impression that some national interests, especially those of the largest and most influential Member States, are far more privileged than those of others, as evidenced by the expansion of the existing Nord Stream pipeline; the undertaking of which actually breaches EU law – or at least is far from the rule of law principle[17].

Europe’s rule of law is safeguarded by the CJEU, referred to as the most independent judicial institution in the world[18]. Nonetheless, its independence does not translate directly into having an apolitical nature. According to scholars, the Court does not operate in a political vacuum, being in fact a political actor[19], involved in implementing a particular vision of a progress in integration[20]. Moreover, it fosters the expansion of both European law as well as the power of the community’s institutions while its judges seem to closely follow public debate; they “read morning papers”, with special regard to Western European titles, according to some experts[21]. There emerge some examples of judicial decisions aimed at establishing long-term public support both for the Union as well as the work of the Court. Such type of policy, which is currently being created by the members of the CJEU, has been even described in the subject-matter literature as so-called “diffuse legitimacy”[22]. The aforementioned strategy consists of defending rights of EU citizens, ranging from consumer protection to some regulations regarding mobility and employment in the internal market[23].

In the 1990s, the Court safeguarded the right to move freely within the territory of the EU, while another incentive was open access to the welfare systems of the most affluent European countries. The same applied to the possibility to work in the internal market; freedom of movement of employees was widely encouraged, mostly by eliminating barriers imposed by countries that could offer higher wages but which were also characterised by more extensive regulations and a strong level of unionisation. So, in both cases, namely access to social welfare and freedom of employment in the common market, the Court’s judicial decisions backed liberal solutions that were beneficial to the inhabitants of less affluent Central European states, not to forget greater financial solidarity granted by the countries of Western and Southern Europe.

Nonetheless, at the time of the global financial crisis, such case law was subject to gradual changes. The Court ceased to invoke the rights of EU citizens to free movement, all to work – no longer perceived in terms of superior values – simultaneously stipulating that job opportunities offered by other EU Member States, or the possibility to profit from their social security systems, shall have a solely conditional character. The judicial institution referred to the need to protect public finances of the EU’s most affluent countries as well as to reduce the free flow of workers on EU territory, a solution that could have been implemented through the necessity to comply with protective regulations on local markets[24].

While observing such changes within the jurisprudence of the Court, numerous pundits question the actual reason for such state of affairs. According to some opinions[25], the Court essentially took into account the change in attitude of voters in Western and Southern countries who, facing the global economic recession became much more critical of both liberal principles in the internal markets as well as of the ongoing globalisation processes. Yet other experts claim[26] that the Court bore in mind the fact that the EU’s most influential Member States, including France, Germany and Italy, opposed such liberal rules. In light of both interpretations, it is recognized that political factors have altered the jurisprudence of the Court while its protectionist interpretations of EU law seemed beneficial for the societies of the so-called “old Europe”, while at the expense of the newly-admitted Member States of the European community.

The issue of the jurisprudence of the Court of Justice in the context of the Eurozone crisis, especially in terms of some unconventional interventions of the European Central Bank (ECB), has come under scrutiny in the relevant literature. Interestingly, some scholars perceived such interventions as evidence of breaching or bypassing EU law[27]. For example, the ECB broke the principle of independence of the national fiscal policy and the sole responsibility of the Member States for their own debt (pursuant to Article 125.1 of the TFEU). The institution is also believed to have violated both the ban on the mutualisation of debt as well as that on making the ECB the lender of last resort (under Article 123.1 of the TFEU). In many cases, the ECB has ceased to be a politically-independent institution, which can be observed in situations where it forced borrowing states to accept all conditions imposed by the creditor states. Both the ECB and the EC disrespected the treaty rule related to some public policies, which should be left to the exclusive competence of the Member States (pursuant to Article 5 of the TEU). This was a consequence of imposing fiscal austerity on some Member States that affected these public policies.

As for the Court, it authorized the activities carried out by both the EC and the ECB that were referred to by many lawyers as disregarding Europe’s constitutional law, including treaties.[28] Similarly, the judicial institution limited the ability of citizens to assert their basic rights if they were disregarded by international assistance programs[29]. Thus, it altered its previous policy of “diffuse legitimacy” that opted for safeguarding the rights of EU citizens while such a step has been taken in the name of a higher historical necessity. There is little doubt that the Court acted accordingly with European integration, preventing the EU’s monetary union from any dissolution processes. Nevertheless, many lawyers refer to these actions as arbitrary and as characterized by their loose approach towards the treaties in force; some of whom resorted even to accusing the EU institutions of changing hitherto constitutional order[30]. Of course, it is considered by some that the Court had sought to authorize such unconventional policy conducted by the ECB, though it was deprived of its legitimacy based on the rule of law observance[31]. In the time of the recession, integration “through law” was used to centralize power at the European level, which appeared particularly visible in the case of technocratic institutions, including the EC, the ECB as well as the CJEU. They all became subject to the politicization, i.e. they served the interests of the EU’s wealthiest states that granted assistance loans to some members of the monetary union. In such a way, formally independent institutions became a tool for the most influential and well-off European countries, thus sanctioning the hierarchy of power in the EU (and more specifically – the monetary union) between creditor countries and borrowing countries[32]. Also all actions performed by the CJEU, including the rather arbitrary implementation of the principle of the rule of law, have been completely subordinated to such hierarchy, which I have previously defined as asymmetrical power relations between stronger and weaker Member States[33].

Growing rebellion of national communities

Such steps as promoting the principle of the rule of law within the EU structures, escalating the power of both the EC and the CJEU in relation to subsequent countries, as well as outvoting all countries representing interests other than those of the EU’s largest Member States, may eventually lead to some instances, in which the EU’s political order could be openly questioned. This might be executed on the basis of, or even to defend, democratic principles[34]. Individual national communities or their governments may challenge the authority of the Commission as well as the judgments of the CJEU, or even fail to implement any regulations that have been adopted contrary to their positions. Scharpf urges that undermining the EU’s legal order may concern the rejection of liberal principles applied in the internal market by voters being increasingly critical of liberalization and globalization processes.[35] The same may also apply to liberal values being questioned in other domains. Such a trend seems more and more visible in the case of migration policy, as evidenced by the example of tensions amid the alleged violation of the rule of law principle by both Poland and Hungary, within the framework of which the right of the European institutions to interfere in states’ internal reforms has been reportedly undermined in both countries. Nonetheless, the European legal system was perhaps most seriously questioned during the United Kingdom’s European Union membership referendum in 2016, as a result of which the country voted to leave the community. Most Britons sought to, among others, regain their sovereignty in enacting law-giving processes and thus, also to become independent of the judicial decisions issued by the CJEU.

It is worth noting that all tendencies mentioned above, which ultimately lead to the rejection of two basic integration instruments, stem directly from the increase in electoral politics within Member States, thus undermining liberal norms and defending democracy. Therefore, they result from the deficit of “input” democratic legitimacy of Europe’s political processes, and are fuelled by some instances of European inconsistency or even hypocrisy within the scope of the rule of law.

Conclusion

Recent crises have seemingly woken up the EU’s dormant election politics. Voters have decided to defend their own national democracy against the authoritarian and liberal tendencies that accompanied the progress of European integration. The literature refers to such direction of integration development as “authoritarian liberalism”[36], which is being increasingly contested by some societies. We cannot be sure whether such sentiment(s) will continue to grow as well as how they might possibly influence further processes of European integration. Nonetheless, everything seems to indicate that the European Union should alter its hitherto approach and adapt to the principles of democratic legitimacy, which could be achieved even at the price of less operational efficiency and weaker decision-making processes. Undertaking all steps aiming to improve the management, yet at the expense of democratic standards, constitutes a shortcut that seems profitable for integration processes only in a short-time perspective.

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