Democratic Decision-making in the EU

Technocracy in Disguise?

Anne Elizabeth Stie

• Publisher: Taylor & Francis
• Year: 2015
• Print ISBN: 9780415525756
• eBook ISBN: 9781135125462
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book examines the democratic legitimacy of the European Union (EU) and evaluates the democratic credentials of the EU's main decision-making procedure. It finds that though there is potential for democratic decision-making in the EU, the actual process is dominated by technocrats and secret meetings.

The book assesses and discusses the conditions for democratic input in decision-making with five empirical chapters each addressing the ordinary legislative procedure from different dimensions: democratic deliberative forums, inclusion, openness, power neutralising mechanisms and decision-making capacity. The analytical framework provides for an in-depth assessment of the ordinary legislative procedure's potential democratic qualities and examines whether it fulfils democratic criteria, how the procedure works in practice and whether it has the necessary democratic clout. The author provides both a theoretical discussion and an empirical assessment of what role the principle of democracy could play in the EU.

Filling a gap in EU legislative studies and contributing to the debate on the European democratic deficit, Democratic Decision-making in the EU will be of interest to students and scholars of European Union politics, legislative studies and deliberative democracy.

1 Introduction

One of the main arguments in favour of the Lisbon Treaty was, according to its defenders, that the European Union (EU) would become more democratic. The reason for this stems from the fact that, with Lisbon, the European Parliament (EP) has now gained more influence over EU legislation since the legal areas falling under the co-decision procedure have doubled from around 40 to over 80. This means that the majority of the Union’s legislative competences¹ need the support of both the EP and the Council. Under the co-decision provisions, the EP is not an appendix to the Council, but an equal partner equipped with the possibility to both amend Commission proposals and to veto them. Consequently, that the EP is now included in EU legislation on a par with the Council in the vast majority of EU policy areas, is in itself proof of an unequivocal democratising element, according to the defenders. It may also be argued that with Lisbon this ‘fact’ is even further underlined by the renaming of the co-decision procedure as the ordinary legislative procedure (OLP)² signalling and recognising that the normal state of affairs in the EU is that binding legal acts require the support of popularly elected bodies – the EP and the Council (even if the latter only has an indirect popular foundation).

Surely, both with the OLP’s inception in the Maastricht Treaty and its subsequent extensions with earlier treaty revisions have the empowerment of the EP has been underlined as a means to strengthen the EU’s democratic legitimacy: ‘the goal was to enhance the input legitimacy of the EU by giving the only institution whose members are directly elected more powers to shape EU policies’ (Häge and Kaeding, 2007: 342; see also Farrell and Héritier, 2003b: 6). However, even if this was the intention, is the inclusion of the EP automatically democratising EU decision-making? Does the EU legislative process suffer from a democratic deficit or is the inclusion of the EP in itself enough? The aim of this book is to answer this question through systematically assessing the democratic quality of the OLP from a deliberative democratic perspective, or more precisely, to answer the following research question: Are the institutional and procedural qualities regulating the ordinary legislative procedure organised in such a way that the process of co-decision-making warrants the presumption of acceptable and thus democratically legitimate decisions?

The OLP and the European democratic deficit

Over the years, the OLP has received quite a lot of attention not only within the EU itself, but also from the research community. However, the procedure’s democratic credentials have not been the main target and have largely been neglected. Instead, the majority of studies on the OLP are focused on the inter-institutional balance of power (first and foremost) from a game theoretical perspective and often with a special emphasis on the EP’s position.³ Other studies use the development of the OLP as an empirical case to explain institutional change from a rational institutionalist approach (Farrell and Héritier, 2003a, 2004, 2007; Héritier and Reh, 2011; Héritier, 2012; Reh et al., forthcoming 2013). Here, we also find studies focusing on how changes in inter-institutional rules affect intra-institutional arrangements and how the external and internal change processes are connected, including knowledge on how the institutional power balance between the legislative actors – the Council, the EP and the Commission – pattern and change (for instance with treaty revisions or between different decision-making procedures).⁴ In addition, there are studies that have a more qualitative approach and often include EU practitioners, usually with the EP as their primary research object.⁵ These are important studies because they tell us something about the conditions under which co-decision-making is exercised.

However, EU legislative studies consequently seem to systematically separate the issue of inter-institutional power battles from the question of democracy in the sense that the latter issue is not included in the analytical framework and is hence only treated as an appendix to the main research task. In the OLP literature there are usually only a few comments at the beginning or towards the end of articles where the state of affairs concerning issues of transparency, accountability and legitimacy are mentioned, but they are never the main purpose of the articles.⁶ There are – as far as I know – only two studies where the normative implications of the OLP are the main focus.⁷ The first appeared in 2003 under the telling title ‘The invisible transformation of Codecision. Problems of Democratic Legitimacy’, where Farrell and Héritier (2003b) particularly addressed the closed and informal trialogue meetings between a limited number of participants from the Council, the EP and the Commission and how these meetings affect the overall democratic quality of EU decision-making. This is an important study not only because the authors were among the first to thoroughly research the OLP and its specific features, but also because they, with this article, address co-decision-making within a larger normative context of EU decision-making. Another study is the collaborative research project led by Christine Reh on the informal politics of co-decision.⁸ This project looks at why, to what extent and for what reasons co-decision actors choose informal and secluded processes rather than following the formal procedural rules. In addition to these questions, the project also deals with the democratic consequences of so-called fast-track legislation, that is, the increasing tendency of adopting OLP acts after first reading. I revisit both studies below.

It is, however, puzzling that the OLP’s alleged democratic qualities have not been addressed more thoroughly. After all, the very purpose of introducing the OLP was an attempt to democratise EU legislative processes by including the EP and thus contribute to mending the Union’s democratic deficit. With the Lisbon Treaty, the OLP is the most important decision-making procedure in the EU, it has become the default procedure. This is also marked by the fact that the other legislative procedures have been sidelined and now officially figure under the label ‘special legislative procedure’ (cf. Article 289(2) TFEU). In many ways we could argue that in methodological terms the OLP is the ‘most likely’ case to study in order to test the democratic quality of the Union since legislative processes resulting in binding legal acts are seen as the prime task or very raison ďêtre of popularly elected bodies in modern democracies. Arguably, whereas the extraordinary events of Intergovernmental Conferences (IGCs) as well as the two conventions leading up to the adoption of the Charter of Fundamental Rights and the Constitutional Treaty respectively are undoubtedly important, the impact of the mundane and everyday processes of piecemeal adoption of ordinary decision-making needs to be addressed more thoroughly. In other words, if the Union fails in the area of ordinary decision-making, which arguably also has a stronger direct effect on the daily lives of Union citizens, the democratic prospects for the EU seem rather bleak.

Moreover, one of the features that truly distinguish the EU from conventional international organisations is the vocal role played by the principle of democracy. Even if unsettled and contested, the problematic state of affairs related to the Union’s democratic deficit(s) accompanied by the constant debates about executive dominance and technocracy are, for instance, not in the same way and intensity on top of the agendas in NATO, WTO, OSCE or even the UN. The EU’s future is – I would argue – much more vulnerable to expectations and demands on how it can solve its democratic deficits and counter accusations of technocracy and executive dominance than are NATO, WTO, OSCE and the UN (at least for the time being). In facing such demands, the EU resembles democratic states more than conventional international organisations. In short, the normative force of the democratic principle permeates not only the member states, but also the EU – including its legislative procedures. Hence, it is high time to conduct a comprehensive and systematic assessment of the OLP’s democratic credentials.

Aim of the book

The aim of this book is to conduct an assessment of OLP where the democratic yardstick is identified, discussed and ‘operationalised’ in order to make explicit when, and under what kind of circumstances, we can expect that the OLP will produce legitimate and acceptable outcomes. In this regard, I will assess the OLP against the normative standard prescribed by the discourse-theoretical version of deliberative democracy (cf. Habermas, 1998: 107). Hence, if we apply deliberative democracy, when and under what kind of conditions could we expect OLP acts to be democratically recognised? Or put rhetorically and hypothetically, if Union citizens were asked to actually give their consent to OLP acts, what kind of conditions must the OLP ensure in order to make it likely that citizens will find such acts acceptable and thus legitimate constraints on their actions?

In this sense, this book is a contribution to the debate on the alleged democratic deficit, but it differs from other such contributions because it is anchored both in a theoretical as well as an empirical discussion. It provides both a conceptual discussion on the principle of democracy and how this standard can be used when operationalised to the European context as well as a systematic empirical assessment of the Union’s ordinary legislative procedure. As argued above, not many studies on European democracy provide a comprehensive appraisal where both the theoretical and the empirical components are included in their analyses.⁹ Through the analytical framework presented below, this puts me in a position to address the question of what role democracy should play in the EU, both as an idea and as practice, as well as to what extent the current state of affairs qualifies for the democratic deficit category. I do not claim to provide a complete account. As discussed below, the meaning and realisation of the principle of democracy is contested and here I present one version of it – a deliberative democratic account. Hence, even if there are overlapping points, other democratic theories will probably judge the OLP situation differently.

In addition, the book is also a contribution to the ‘empirical turn’ in deliberative theory. It seeks to operationalise and make more tangible what deliberative democracy could mean not only as idea, but also as practice. As argued below, it is only in the last decade that deliberative democracy has begun to move from almost exclusively being discussed within political theory to also attracting attention from political science. This task of operationalising the concept of deliberative democracy to real life circumstances is still in its infancy and this book is also a contribution to this research endeavour.

Democracy as idea and as practice

This book also helps to abridge what we could call a certain disciplinary division of labour in research on democracy between political theory and political science respectively. Arguably, this could also be part of the reason why EU legislative studies are not primarily concerned with the democratic credentials of the OLP. Basically, this division of labour is related to how democracy is treated in the respective disciplines – as an idea that needs a justification and as practice in real life contexts. We could say that whereas political theory is mainly concerned with how democracy as an idea should be understood and justified, political science has been focused on how democracy as a set of empirical practices unfolds and is exercised in modern democracies.

Very roughly, the debate within political theory has for the last two decades been concerned with how democracy as idea is challenged by, and how it can possibly be rescued under, conditions of increasing multiculturalism, globalisation and transnationalisation. Multiculturalism refers to processes inside the traditional nation-state framework and is concerned with how political communities can accommodate difference and heterogeneity. The nation as communal concept has increasingly been challenged as an exclusionary integration mechanism in its demand for homogeneity among its citizenry.¹⁰ Globalisation and transnationalisation processes, on the other hand, are challenges facing the state as the proper unit for problem-solving and democratic decision-making. If societal problems increasingly exceed state borders and can only be solved through states cooperating collectively, can democracy as idea move beyond state borders? In other words, can the idea of democracy be saved when the traditional nation-state framework is challenged? Is democracy possible beyond a nation-state framework, for instance in the EU? With regard to the EU, discussions within political philosophy revolve around whether democracy can be reconciled with and accommodate a system that is multilevel in character, where Union citizens are already democratically constituted in their respective member states, where there is not a functioning public sphere, where there is only a thin common European identity and where decision-making is challenged by technocracy and executive dominance.¹¹

In contrast, political science is seldom concerned with democracy as idea, but rather seeks to understand how democratic practices unfold and are exercised in and around the political institutions of modern democracies, e.g. electoral and voting behaviour, public sphere, protest movements, civil society organisations/NGOs, lobbying, legislative and decision-making processes, party politics, media coverage, etc. All these topics form important sub-disciplines and most studies focus on one of them. In political science, studies on democratic practices are therefore usually divided or decomposed into bits and pieces, such as how voting behaviour patterns or civil society organisations impact on policy-making. This is also the case in EU studies.

However, when research on democracy as idea and as practice is separated in this way, our understanding of democracy suffers. The problem with political science is that when the analytical task of studying democracy is decomposed into bits and pieces, the essence and idea of democracy as a whole is often lost. What is more, or perhaps as a result of this, empirical studies often take democratic standards as givens or in themselves self-explanatory, focusing solely on empirical data without taking into consideration or discussing that the interpretation of the democratic principle comes in many different versions and that it does matter – also for the empirical analysis – whether one adopts a Schumpeterian or a Habermasian concept of democracy. The principle of democracy is in itself widely accepted and its legitimising force is seldom disputed. It is one of the few principles that have a mobilising effect on people to act collectively to achieve change and recognition, as we have witnessed lately in North Africa. However wide-reaching the agreement on the normative superiority of the principle of democracy as such is, major differences remain about which model is the best one (cf. Lord, 2007b). Hence, how to understand and realise democracy in concrete political settings is neither straightforward nor self-explanatory.

Different perspectives and understandings on what democracy requires and commands in different situations flourish. So when and how do we know that a polity, an outcome, an institution or a procedure is democratic? As indicated above, the answer is ‘it depends’. As Bovens et al. (2010: 186) argue in their book about accountability:

It depends on which accountability mechanism, regime, or cluster of regimes is being assessed. It also depends on who is doing the assessing, as there are marked differences among EU scholars in particular as to what constitute the relevant criteria. And it depends on what implicit or explicit benchmarks or counterfactuals are being used in doing the assessing, even among proponents of one and the same criteria set.

‘Accountability’ is not co-extensive with ‘democracy’, but the above quote is equally relevant for the latter and ‘accountability’ could her...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Preface
• List of abbreviations
• 1 Introduction
• Part I Theory, approximation and background
• Part II Evaluation
• Notes
• Bibliography
• Official EU documents
• Other documents
• Index