Ascertain whether the EU suffers from a democratic deficit

The role of the European Parliament has developed from that of a consultative assembly to something more like a traditional legislative body and under the Treaty of Rome, Parliament had a right only to be consulted on certain areas of EEC legislation. Contrasting with the present day, the proportion of policy areas in which the Parliament is involved has increased to 73 per cent as opposed to 18 per cent of the original EEC Treaty.

If it can be said that the Commission acts at the executive then they are formally accountable to Parliament, who may actually remove the members of the Commission with a two-thirds majority in a vote of no confidence. In fact, the Commission might have been removed from office in its entirety in 1998. Although this never came to pass, Parliament did establish of a committee to investigate allegations of fraud and mismanagement in the Commission. The threat of such action lead to the resignation of the Commission, the report containing the sentence, “it is becoming increasingly difficult to find anyone [in the Commission] who has even the slightest sense of responsibility.”

Parliament’s controls over the Commission can therefore be regarded as extreme, where only severe circumstances (such as the above) can force the will of the Commission. Other less extreme ‘checks and balances’ seem less potent as Art 192 only allows Parliament to request the Commission submit an appropriate proposal on matters which it considers the EC should legislate. Here the commission is not legally bound to draw up such a proposal.

In addition, when the Commission holds such power as to be able to disregard Parliamentary proposals, the electorate should have some confidence in the selection of said Commissioners. Previously (before TEU) they were appointed by the member states, yet Parliament now has some control over who sits on the commission as they may veto or block candidates. Following the Treaty of Amsterdam Parliament can now veto presidential candidates, the President able to veto member states’ choices for membership of the Commission. A legitimate Commission is certainly essential with regards to the much-maligned Comitology procedure; the situation where the Commission may itself legislate via powers by the Council of Ministers.

This delegated legislation deals with the detailed implementation of Council acts, upheld by the European Court of Justice in early case law such as Koster. The Council retains an element of control over the Commission in this respect by the use of management committees, consisting of representatives from national governments, usually Civil Servants to whom the Commission must submit drafts of the measures it intends to adopt. The Civil Servants control of measures is divided into three areas – advisory committees (merely able to give advice), management committees (may delay the Commission’s ability to act) and regulatory committees (which may block the Commission’s actions). Variations on these procedures have given rise to over four hundred Committees that further complicate matters, removing any semblance of transparency. Supporters of the Comitology procedure would argue that it helps implement EC legislation and helps the structurally overburdened Commission. However, the procedure has also been criticised for derogating from the Commissions right to exercise powers delegated to it, and thus distorting the institutional structure set up by the Treaty. The European Parliament in particular strongly opposes the procedure for its lack of democratic input. Perhaps, these Committees should indeed be held accountable to the elected body as it currently results in unelected bureaucrats exercising a strong hold over Community legislation through complex procedures, which are not transparent even to experts. Although, the Commission chose to implement the regulatory committee in forty per cent of the cases in which it was used, they are still well placed to determine the agendas through the chairing of meetings. Parliament has even gone as far as (unsuccessfully) challenging the procedure in Court, arguing that decisions here undermined the rights of executive control.

At present, there are four forms of law making within the EC which Parliament have varying degrees of control over: consultation, co-operation, co-decision and assent. The consultation procedure demands that the Council consult Parliament before coming to a decision on Community secondary law. Failure to consult can lead to an instrument being struck down, yet this really gives very little power to Parliament as the Council may still disregard their opinion.

The co-operation procedure, introduced by Art 252 establishes a first and second reading in areas largely affecting the internal market. Here Parliament can force the Council to a unanimous vote on a legislative proposal or table amendments that the Council must reconsider. However, this procedure is almost redundant applying exclusively to EMU matters

Co-decision is where Parliament can ultimately reject a proposal submitted by the Council. Here Parliament is entitled to propose amendments, which the Council must adopt unanimously if the Commission also has a negative opinion. The veto powers of Parliament can only take effect if the conciliation committee cannot agree on a common position. The procedure being used approximately 20 per cent of the time only.

Finally, the assent procedure is required to be followed in six instances, where proposals may not be enacted unless assent is given by Parliament. They may not amend the proposals, simply approve or reject the measures – an all or nothing scenario.

The real negotiations regarding the co-decision procedure tend not to take place at conciliation meetings, but rather at the Committee of Permanent Representatives (COREPER). This group of Civil Servants, who are attached to the Council, scrutinise and agree on legislation before it reaches the Council proper i.e. unelected technocrats or bureaucrats are given preliminary responsibility for proposing legislation. This may at first seem unreasonable, yet Civil Servants of many nations currently contribute to legislative proposal with regards to Public Law. It is the involvement in the co-decision procedure and the opacity with which they work that may undermine the democratic ideal.

This lack of transparency is not confined to COREPER, it appears to be endemic of the EC legal system. Declaration No. 17 annexed to the EC Treaty (by the TEU) stipulates that transparency of the decision-making process is needed to strengthen the democratic nature of the institutions and to restore public confidence in the EU & EC. Improvements in this nature are slowly forthcoming and although the Council debates are in secret, they hold a public debate every six months with other debates possible on major issues of Community interests and major legislative proposals, only if there is a unanimous vote by Council. Yet transparency is a crucial instrument in bringing the Community closer to its citizens and in increasing their confidence in its operation, such confidence being a key element in any democracy.”

The Commissions deliberations also remain secret, although they have embarked on a process of simplifying and streamlining EC legislation to make it more accessible and easier to understand for the EU citizen. The publishing of some legislative proposals in the Official Journal, with details of where those interested can obtain documents and how they can respond to them, will certainly help bring the legislative processes closer to the citizen. Though why this should have taken so long to happen is confusing as Art 1 of the treaty, “marks an ever closer union…in which decisions are taken as openly as possible…to the citizen.”

This would also suggest means the devolution of authority to the lowest level of government capable of performing duties within the legislative procedures, meaning that power should be delegated to local authorities rather than member states governments. Yet it is this very principle that threatens to undermine the democratic mandate, undermining the position of the MEPs and seemingly underlining the supremacy that some national Parliaments feel they still retain (by simply ‘deferring’ supremacy through Acts of Parliament). With a low turnout at European elections we hardly need the principle of subsidiarity to be used as a possible basis for challenge to the validity of community legislation. For many the most appropriate was to enhance democracy in the EU is to enhance the role of national Parliaments in EC & EU decision-making. The UK Parliament having two select committees: House of Commons Select Committee on European Legislation and House of Lords Select Committee on the EC. These scrutinises draft laws and instructs the government minister in the Council on how to vote, whether there is enough time in an already busy schedule is debateable. Perhaps, an enhanced European Parliament should take sole responsibility for this role as it is they who are the elected representatives of the EU citizen. Interests of national sovereignty must however, be appeased if continued negotiation is to take place at summit level.

The question of democracy clearly points to the role of the European Parliament (as the only directly elected body) having only a minor role in the legislative process as opposed to the question of delegation to Committees controlled by the Council. Perhaps the Parliament should be given a greater opportunity not only to propose but also to enact legislation. In order to achieve this there will have to be a greater affinity between the European Community as an institution and its citizens as MEPs can hardly be described as currently acting upon a democratic mandate when electoral turnout is so low. This may be gradually achieved over time or accelerated with a ‘Bill of Rights’ or Constitution. However, it is worth saying that although a democratic deficit exists within the EC’s legal system, it has come a long way in a very short time.