In condemnation of the democratic legitimacy of the EU and its decision-making process the German Constitutional Court ruled in the case Solange I that;
“the Community still lacks a democratically legitimated parliament directly elected by general suffrage which possesses legislative powers and to which the Community organs empowered to legislate are fully responsible on a political level”.
Stating that, it has recognised the democratic deficit in the EC. The problem of democratic deficit of the Union was predominant for the challenge of constitutionality of the Maastricht Treaty (TEU), which was the subject of the case. The complainants challenged the constitutionality of the TEU raising that the EC institutions in charge of law-making are not directly democratically legitimated, yet they are by most legitimated in the indirect way. It is indispensable here to mention the judgment of the Polish Constitutional Court of 31st May 2004 on the conformity of the Act of 23rd January 2004 on the elections to the European Parliament with Art. 4 par. 1 of the Constitution. Pursuant to Art 4 par. 1 of the Constitution of the Republic of Poland, being part of its first chapter, the supreme power in the Republic of Poland is vested in the People. According to the complainants, in the light of the aforesaid provision, it is only the Polish citizens who have the active and passive electoral rights in the Republic. Pursuant to the Act in question, the said rights shall be granted also to the citizens of other EU Member States. The complainants claim that the arrangements of the first chapter of the Constitution (the system of government in the Republic) regulate the general principles, to which the method of electing the organs and institutions, by means of which the citizens realise their supreme power, must be subordinate. In view of the complainants, the European Parliament is one of those organs. Therefore it should be elected in Poland exclusively by the Polish citizens and only the latter should be elected.
The Commission, a supranational body of unelected civil servants has long been criticised for being undemocratic, yet contributes to policy and has major influence over policy decisions and the future direction of the EU project. It is also unaccountable to a weak Parliament, though the en mass resignation of the Santer commission after Parliamentary pressure amid accusations of financial irregularities demonstrates some degree of democratic accountability. The Council of Ministers can be viewed as a democratic institution of the EC as ministers are supposed to be accountable to their own Parliament. However, the issue of secrecy and lack of transparency within the Council of Ministers, as with the Commission, is indispensable to the debate of the democratic deficit. The implication of the democratic deficit within the EC institutions has repercussions upon the EU. These repercussions emerge in many guises, whether corruption from the inside such as the Andreasan Affair or low turnout numbers in European voting due to a lack of interest from the citizens.
A notable response to the criticism of the democratic deficit is that the European Union has made executives more accountable to their citizens. The actions of government ministers are no longer scrutinised simply at home, but in a wider European context and ministers at home are no longer held to account solely for their domestic record, but also for their actions in . Furthermore the actions of European actors come under scrutiny from not only the ECJ but also from national courts and this extensive judicial review arguably is sufficient so as to ensure the accountability of policy makers in the EU. The Lisbon Treaty currently being ratified represents decisive progress towards a more democratic Europe. The Treaty has proposed a new post of President who will chair the council of ministers. This President crucially will be elected by Qualified Majority Voting, increasing democracy within EU/EC. European Parliament has recently been gaining a lot of power and the Treaty reiterates this with the powers of ‘co-decision’. It will aid the fight against a democratic deficit in underpinning democracy because the Parliament is the only institution where voters have a direct say. Under Article 8.b the EC institutions shall give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of community action. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. Not less than one million citizens who are nationals of a significant number of Member States may take the ‘initiative’ of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the EU is required for the purpose of implementing the Treaties.
Europe’s democratic deficit, whether perceived or real, is largely due to the EC institutional architecture, which promotes a type of circulatory decision-making process, but permits little input from the European public sphere. Compounding this situation is the informal nature of negotiations that often take place among and within the key policy-making bodies of the EC, leading to lack of transparency and an unpredictable policy-making process. European Union conceivably is too far removed for citizens to understand and form reasoned opinions about the actions of European officials, a prerequisite for it to be accountable to citizens. Fundamentally the democratic deficit is a term constituted by two conceptual components. Firstly, democratic deficit, as is suggested by the term itself, is connected to democracy. The second component of democratic deficit is efficiency. Democracy and efficiency are often exclusive concepts. A system may be so democratic that it will become inefficient and conversely a system might be likely to reach high levels of efficiency at the cost of democracy. To avoid democratic deficit, it is thus necessary to have a healthy equilibrium of these two concepts. A balanced combination of democracy and efficiency produces legitimacy. Legitimacy is also dependent on the contention that democracy and efficiency are perceived by the public. Ultimately, the perception of a democratic deficit itself represents a democratic deficit. The Lisbon Treaty soon to be encompassed by member states will optimistically be overcome the democratic legitimacy of EC institutions. The Treaty would also alleviate public confidence in the EC institutions with its transparent and democratic nature overcoming problems such as executive dominance. The European Constitution, which failed ratification, was originally conceived as a way of making the EU more transparent and accessible to citizens. The Lisbon Treaty was not. As a result, ‘the democratic deficit’ remains as serious as ever.
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