The EU, Democracy and Institutional Structure: Past, Present and Future

A Bakardijieva Engelbrekt and X Groussot (eds) The Future of Europe, 2018

Oxford Legal Studies Research Paper No. 3/2019

33 Pages Posted: 24 May 2018

See all articles by Paul P. Craig

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: May 13, 2018

Abstract

It is commonplace to bemoan the EU’s democratic deficiencies, as attested to by the wealth of literature discussing the issue from a variety of perspectives. This chapter is not a literature review. To the contrary, it advances my own view on the issue, albeit one that is informed by existing scholarship. The ensuing analysis is predicated on the assumption that a principal, albeit not exclusive, cause for concern about EU democracy is the mismatch, or absence of fit, between voter power and political responsibility.

EU decision-making is structured such that voters cannot determine the shape or direction of EU policy in the manner that occurs to a greater extent within Member States. It is not, therefore, possible in the EU for the electorate to remove the incumbents from office, and replace them with a different political party that has a different set of policies. It is this malaise that underlies Weiler’s critique of EU decision-making, captured in aphorismic terms by his affirmation of the centrality to democracy of the voters’ ability to ‘throw the scoundrels out’. It is the same malaise that informs Maduro’s critique, to the effect that the ‘real EU democratic deficit is the absence of European politics’, manifest in the lack of democratic political contestation about the content and direction of EU policy. Properly understood these are but two sides of the same coin.

The ensuing discussion takes the same starting point as Weiler and Maduro. The direction of travel thereafter is, however, rather different, insofar as we are concerned with explanation and understanding of the status quo. The assumption, explicit or implicit, in much of the literature is that the fault for this malaise resides with the EU. The pattern of thought seems strikingly simple, shaped by the very cadence of language. This is most marked in the duality of meaning accorded to the phrase the ‘EU’s democratic deficit’, which is used descriptively to capture the malaise adumbrated above, and deployed normatively to connote the fact that the fault resides with the EU, which is regarded as architect and author of present reality.

The academic line of argument pursued thereafter flows naturally from the preceding duality of meaning. Given that the democratic shortcoming resides descriptively and normatively with the EU, democracy must therefore remain in the Member States, which are said to be the principal sites for democratic legitimation. Some of the literature on ‘demoicracy’ is grounded, in part at least, on such assumptions. The discussion that follows takes issue with this descriptive and normative linkage, and hence with the conclusions drawn therefrom.

It will be argued that the preceding linkage does not withstand examination. Insofar as there is a democratic deficit of the kind identified above, it flows from choices made expressly and repeatedly by the Member States over time as to the institutional structure for decision-making which they are willing to accept. These choices could have been different. There is no a priori block in this respect. There is, to the contrary, no especial difficulty in devising an EU decision-making regime that would meet the democratic shortcomings outlined above. The EU itself is not blameless with respect to the mode of decision-making, and nothing in the present chapter is predicated on that assumption. Improvements could doubtless be made in the manner in which the principal EU institutions operate. This does not alter the fact that that the Treaty architecture that frames their respective powers, and the way in which they inter-relate, is the result of Member State choice, made and re-made since the inception of the Community.

It will also be argued that there are, however, four constraints to a fit between the EU’s institutional decision-making structure, and the precepts of democracy. The constraints are political, democratic, constitutional and substantive. The political constraint is predicated on the assumption that some form of parliamentary majoritarian regime would meet the democratic deficit articulated above, thereby ensuring a closer nexus between voter preferences and political responsibility. Change of the kind that would meet the democratic infirmity thus conceived is, however, very unlikely to occur, because the Member States will not accept it for the reasons explicated below. The democratic constraint is expressive of the fact that there is contestation as to whether such a parliamentary-type regime really is the most appropriate model for a polity such as the EU, or whether a different form of democratic ordering would be better suited. The constitutional constraint denotes the fact that EU decision-making is limited by the very nature of the constituent Treaties. National constitutions constrain political choice. It is inherent in their very nature. The EU is no different in this respect in principle, in the sense that the founding Treaties form the architecture to which legislation made thereunder must conform. The difference is one of degree, but it is significant nonetheless, since the EU Treaties are far more detailed than any national constitution, and hence the room for democratic policy choice is more circumscribed. The substantive constraint speaks to the democratic consequences of the imbalance between the economic and the social within the EU, as manifest in the original Treaties, and as a consequence of the EU’s financial crisis.

Keywords: EU, democracy, institutional structure, democratic deficit, constitutionalism, populism

Suggested Citation

Craig, Paul P., The EU, Democracy and Institutional Structure: Past, Present and Future (May 13, 2018). A Bakardijieva Engelbrekt and X Groussot (eds) The Future of Europe, 2018; Oxford Legal Studies Research Paper No. 3/2019. Available at SSRN: https://ssrn.com/abstract=3177736

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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