Desiring a Democratic European Polity: The Post-Sovereign EU Governed by Sovereign Member States

Chapter 7
Desiring a Democratic European Polity: The Post-Sovereign EU Governed by Sovereign Member States

Political themes of who is actually governed by EU institutions, how, in whose name and to what end¹ turned out inescapable vis-à-vis progressive European political integration, its commitment to democratic principles and impact on democratic institutions and legitimacy of Member States. Within the context of European governance, the tension between instrumental legitimation by outcomes (based on policy effectiveness) and symbolic legitimation by values (based on the principles of democratic representation and participation)² has always been articulated through the often criticized but popular ‘common benefit’ discourse.³ However, in the 1990s the ‘permissive consensus’ between the citizens of EU countries and Eurocratic élite administrative decisions was gradually replaced by a ‘constraining dissensus’ regarding the future direction and legal or constitutional settlement of European integration.⁴

Despite the wealth of debates on supranational governance, post-sovereignty, constitutionalism and the EU as a polycentric polity,⁵ the semantics of popular democracy and national or European sovereignty remains an important reference point in political debates and conflicts within the context of both the EU and its Member States. It marks important political, juridical, economic and collective identity problems emerging coevally with globalization and Europeanization and the impossibility of continuing to build EU legitimacy on governance-driven efficiency rather than democratic accountability.⁶

The question of ‘who governs the Union?’ has often been overshadowed by the question of ‘how is the Union governed’? However, theoretical and political reflections of ever growing European integration cannot escape the question of ‘who governs’ and ‘who is governed’ by the EU. In other words, European governance is not just a matter of instrumentality and different techniques but also a matter of questions of democratic rules and their adoption by European polity. Following these persistent issues, this chapter opens by summarizing the democratic principle commitments formulated by the Lisbon Treaty and their impact on the character of European governance and European polity. The most recent EU attempts at democratizing its forms of governance are subsequently contextualized by outlining historical links between the EU’s institutional framework and the notion of European polity.

Democratic Legitimacy and European Integration

Since the 1950s, administered and expertly driven prosperity, stability, procedural justice and shared political interests and values of Member States have been the added value that legitimized the process of European integration. In the 1990s, democratic mobilization supplanted the existing processes of technocratic legitimacy and the European public was expected to engage in ‘ever closer’ post-Maastricht Union. When, however, the populations of several Member States rejected the Constitutional Treaty, democratization proved an obstacle to further integration. In the first decade of the twenty-first century, the split between the EU’s calls for democratization and the crisis of functionality thus became ever more acute.

Theories of EU governance often underestimate the importance of democratic decision-making and reduce the problem of legitimacy to efficiency. Nevertheless, the process of democratization hardly can be discarded as a secondary problem at supranational EU and/or global level. However, this call for democratization paradoxically weakens administrative legitimacy by technocratic governance of EU experts and makes the EU a significantly more conflict-driven polity replicating a number of problems and conflicts historically associated with the modern democratic state and its political sovereignty. The post-sovereign EU, therefore, cannot avoid the modern politics of popular sovereignty and, in the absence of a democratically constituted institutional framework, it needs to enhance its democratic legitimacy by strengthening political communication between democratic Member States and supranational EU political institutions.

After the failure of the constitutional experiment, the Lisbon Treaty was drafted and all Member States except Ireland, which was constitutionally obliged to call a referendum, avoided the process of ratification by this form of direct democracy. Nevertheless, the Lisbon Treaty was rejected by the first Irish referendum of 2008 and, while the European Council kept a low profile regarding renegotiations of the Treaty with the Irish government,⁷ the Treaty suffered further ratification complications in the Czech Republic and was reviewed by constitutional courts in Germany and other Member States. The current state of the Union, therefore, persuasively illustrates that the process of economic integration does not automatically lead to supranational political integration and a constitutional momentum of state-building.

Furthermore, the process of transferring ever more power to the Union without adequate political accountability and democratization has recently been exploited by nationalist populist leaders in a number of Member States.⁸ According to those politicians, the very fact of cultural and socio-political differences among EU nations makes any project of a functioning polity impossible and dangerous from the perspective of national cohesion, integrity and sovereignty.⁹ The Union’s impossibility to equally recognize its political potential, tasks and limits invites adherents of the dark legacy of European ethno-nationalism to represent themselves as the guardians of nation state democratic institutions and popular sovereignty itself against the supranational undemocratic Union.

The populist right and left hugely benefited from the process of European integration driven by dreams rather than political reality.¹⁰ This current ideological battleground is a semantic reflection of the Union’s intrinsic structural paradoxes which increasingly call for political reforms of the Union and enhancement of its supranational democratic legitimacy.

In this context, several questions are of primary importance regarding the Lisbon Treaty and its incorporation of the principle of democratic legitimacy and representative democracy. Does the treaty successfully avoid the conceptual obscurantism of EU constitution-making mixing international law principles with hierarchies typical of federal or confederative statehood? Does the treaty mean both significant enhancement of the Union’s democratic legitimacy and a final demise of the political dream of EU constitutional statehood and European polity founded and legitimized by the existence of European constituent power? In other words, can the Union democratize its institutions while abandoning the project of building the sovereign European demos by legal means and administrative governance?

Desiring the Democratic Union?: the Lisbon Treaty’s Incorporation of Democratic Values and Principles

While it is true that nation state constitutionalism and democratic politics are just one of many contextualizations of European politics and constitutionalism today, they simply cannot be rejected as ‘dated and artificial’,¹¹ because the constitutional democratic sovereignty of the Member States remains a constitutive part of the EU’s political and constitutional domain and supranational EU power structures urgently call for their democratic self-legitimation.

The ‘true nature’ of European constitutionalism without a constitution can hardly be just ‘the balancing of diverse and often conflicting interests and fears’.¹² The question of the EU polity subsequently raises the problems of political inclusion and exclusion as well as the boundaries of the EU polity¹³ and its effect on the constitutional polities of Member States. Translating the sociological constitution of society as the unity of social plurality and multitude into the EU context, one is immediately reminded of the failed Constitutional Treaty preamble speaking of ‘unity in diversity’ that has subsequently been reformulated in Article 2 of the Lisbon Treaty stating that

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.¹⁴

This general proclamation of the value foundations of the EU is further supplemented by another ‘unity in diversity’ statement in Article 3(3) of the Lisbon Treaty according to which the Union

… shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.¹⁵

The Lisbon Treaty text thus contains the paradoxes, contingencies and potential of the EU political domain beyond state and popular sovereignty. Political and legal unity is to be based on profound territorial pluralism, and the imagined polity of European citizens is to be built on the reimagined and transformed nations and communities of the EU. Although it has proven impossible to replicate at the EU level the systemic complexity and normative preconditions of democratic legitimacy that exists in the politics of Member States, EU institutions are based on, and actively promote, the values of democracy, equality and respect for human rights.

The Lisbon Treaty clearly is a retreat from ambitious plans of progressive integration by the process of constitution-making. The other name of the Lisbon Treaty – ‘the Reform Treaty’ – indicates that the process of progressive integration needed to be revised and reformed after the Constitutional Treaty’s rejection by the French and Dutch citizens in 2005. The Lisbon Treaty’s framework is an example of such coeval legitimation through technocratic efficiency and democratization. The Treaty’s call for the improved efficiency and democracy of EU institutions, however, reveals a structural discrepancy between the EU’s politics of supranational governance, which primarily neutralizes conflicts by administrative reason and technocratic expertise, and the ever growing difficulties Member States encounter in attempting to transfer the powers of their democratically legitimate political institutions to the EU.

The Constitutional Treaty’s references to European ‘law’ and ‘framework law’ have been abandoned and the existing concepts of ‘regulations’, ‘directives’ and ‘decisions’ have been retained by drafters of the Lisbon Treaty.¹⁶ Any possibility of jurisprudential assumptions of legal monism constructing the constitutional supremacy of the Union’s legal system over legal systems of Member States has thus been ruled out and the current system of EU law continues to recognize the horizontal plurality of legal systems as well as of its own legal acts. The incorporation of the Charter of Fundamental Rights of the European Union and its limitation as regards the competences of the Union as well as the Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms serve as examples of this continuing legal pluralism within the EU.¹⁷

Scrutinizing democratic principles of the EU in detail, Title II is an obvious starting point of any analysis. It is noteworthy that Article 9 of the Treaty opens by drafting the first principle of justice as fairness – the equal treatment of all citizens before EU laws – together with the legal construction of EU citizenship as additional and not replacing national citizenship. Drafters considered the principle of civic equality before the law as a constitutive principle of any supranational form of governance by European legality¹⁸ and thus fully adopted what has been the most important precondition of the existence of any democratic polity.

The Lisbon Treaty presents the Union as a system of compound democracy,¹⁹ with the twin representation of citizens and states. Further, it commits the Union to the founding principle of representative democracy, guaranteeing the right for EU citizens to be democratically represented at both EU and Member State levels. The democratic foundations of the Union are further extended by the citizens’ right to participate in ‘the democratic life of the Union’ legislated for in the third section of Article 10 of the Treaty on European Union (TEU). The principle of representative democracy is supplemented by the concept of participatory democracy which is further elaborated by Article 11 of the TEU. Finally, the complexity of the EU’s political structures and operations are manifested by closely associating representative democracy with public accountability and multi-party democracy operating at both the Member State and EU level and, therefore, shaping and ‘expressing the will of citizens of the Union’.

Specific EU responses to the deficit of representative democracy are reflected in more general issues of the Union’s legitimacy and functioning, accountability, multilevel governance and commitment to a supranational civic and democratic political culture. The Union’s democratic foundation is inseparable from questions of who is represented and how, and which democratic checks and limitations of power apply to the Union.

Representative and Direct Democracy and its Adoption by the EU

It is hardly disputed that the Union’s multilevel governance²⁰ is an historically and politically unique project which is irreducible to just another kind of international organization. It involves economically, politically and legally experimental processes and elements.²¹ However, the pressures to find a solution to the Union’s deficits of democratic legitimacy became increasingly pressing in the post-Maastricht era.²² Despite imaginative scholarly attempts to present the Union as demanding and deserving models of legitimacy that break with traditional ideas of representative democracy, the appeal of representative democracy survives.²³ An institutional design favouring the executive branch of government needed to be reformed to avoid further alienation and a growing gap between EU governing bodies and those governed by them. The original model of legitimacy of European integration through ‘output’ needed to be substantially supplemented by legitimacy through ‘input’ bringing on board more democratic representation and public accountability of the Union’s institutions and their decision-making.²⁴

The post-national constellation of the EU²⁵ called for its democratization to narrow the gap between the Union and its citizens and to deal with the Union’s democratic deficit.²⁶ European political integration based on the limitation of Member State sovereignty²⁷ resulted in a need to enhance democratic governing and functioning of the post-sovereign Union.²⁸ As with the failed Constitutional Treaty,²⁹