Is there sufficient democratic accountability in the EC legislative process?

Some of the processes by which legislation is adopted support the notion that there is insufficient democratic accountability in the EC legislative process.  These have been considered below:

1. Commission acting alone

In limited areas the Commission has the jurisdiction to legislate unilaterally; an example being under Article 39(3)(d) EC.  As the Commission is an unelected body and its members are simply appointed by their individual Member States, this clearly demonstrates that, their ability to act by themselves and enact legislation (although in limited areas) is undemocratic- having not been elected.  Although it may be thought that as the Commission consists of members from the Member States it would allow for democratic accountability, it must be noted that the Commissioners are to be independent (Article 213 EC) and are ‘not supposed to represent the national interest of the Member State of origin.’  Therefore, this clearly demonstrates that there is insufficient democratic accountability; the Commission is effectively able to act on its own accord.

2. Commission and Council acting without Parliament

Some very important policy areas, are left to the procedure whereby the legislative measure can be enacted by the Commission and Council alone; the consultation of Parliament is not formally required.  Under this procedure the Council can adopt laws proposed by the Commission without requiring the opinion of Parliament; the Freedom of Movement of Capital, Article 57(2) EC is a good example.  In the case of Roquette Frères (although this concerns legislation implemented by the process of consultation), the European Court of Justice recognised the importance attached to consultation of the EP.   Therefore, where consultation is not necessary for the implementation of legislation, it confirms that there is insufficient democratic legitimacy in the EC legisltaive process.

Some examples of how democratic accountability can be seen through the legislative process  

1. Council

Despite the fact that the EP, the institution with ‘the strongest direct democratic credentials’ has the weakest role of the institutions; it is often suggested that this is compensated for by the appointment of Council members by their democratically elected governments in their national constituencies - and therefore have an indirect electoral mandate.  Therefore, it is suggested that to some degree there is democratic accountability in that ministers are accountable through the parliamentary process of their Member States.

2. National Parliament

National Parliaments, having been elected by the citizens of the Member States, are clearly a democratic body.  It is arguable that the role they play, although limited, helps to fills the gap that exists in relation to democratic accountability in the EC legislative process.  The fact that all EU Treaties must be ratified by national parliaments is probably the most influential way that national parliaments impact upon the legislative process.

Secondly, but less influential, national parliaments can scrutinise all of the Commission’s proposals.  ‘Scrutiny Reserve’ operates whereby the ministers in the Council should not approve of legislation until the legislation has been fully scrutinised by their national parliament.  In the UK, the House of Commons in scrutinising a draft, where they believe the matter to be of public concern can timetable the matter to be debated in Parliament.  ‘Scrutiny Reserve’ would operate in such a manner that the minister in the Council would be unable to agree his position in Council until scrutiny is completed in the Westminster Parliament.  This concept however has limitations where, for example, Qualified Majority Voting (QMV) is used in the Council; it might not be possible for the National Parliament to prevent the legislation becoming law even if they opposed it and, in this respect ‘Scrutiny Reserve’ is ineffective.

3. European Parliament

The involvement of the EP has increased substantially over the years following the enactment of the Treaty of the European Union; this brought about the co-decision procedure (Article 251 EC).  The powers of the EP under the co-decision procedure were increased further following the ToA and ToN.  The co-decision procedure can be seen as a means of improving the democratic legitimacy of the community; it effectively gives the EP a joint role alongside the Council in the decision-making process (for a draft to become legislation, it must be approved by both the Council and Parliament) and in addition to this the EP is able to veto legislation.  As a result of the co-decision procedure, there is in effect greater accountability of the Council to the EP.  

‘…following, Amsterdam, the legislative balance seems to have shifted in Parliament’s favour.  Principally, Parliament may reject outright the Council’s common position at the second reading…Parliament at last has some real power.’

Democratic accountability would be largely enhanced if the EP were able to insist upon legislation being adopted in a particular manner.  However, despite the ToA increasing the powers of the EP, the situation in relation to the EP’s ability to ‘enforce its own positive view over the Council’ remains unchanged.  The EP is still unable to do this, ‘if they cannot agree, the EP can only wreck the proposal’.  As a result, it is suggested that the final adoption of legislation, even under the co-decision procedure, still effectively lies with Council; subject to the right of the EP to veto.  

Conclusion

I am of the opinion that there is insufficient democratic accountability in the EC legislative process.  This arises primarily as a result of the EP being the only institution involved in the legislative process with a democratic mandate.  The other institutions involved in the process i.e. the Commission and Council have more powers than that of Parliament although not directly democratically elected.  

‘…if the Parliament were to be given some real right of legislative initiative.  This would also enhance the twofold legitimacy on which the EU is supposedly founded, namely its states and…peoples.’

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