Also, since the Treaty of Amsterdam (ToA) the President of the Commission can now reject individual candidates. The powers of the President of the Commission have been increased further under Treaty of Nice (ToN). The Constitution would change the appointment procedure slightly – each member state would put forward three candidates and the President would have to select one of the three.
The Comitology procedure is another area where greater democracy is called for, but has not been fully realised. Comitology is involved only when the Commission acts regarding Secondary/Delegated legislation. Comitology is the process by which the Commission, has to submit its proposals to a committee, who either accept or reject the proposals. The committees are made up of civil servants from each of the Member States and are not elected. This has been criticised by the EP, who believe that this lacks accountability and to ensure such the Commission should be answerable to an elected body i.e. the EP as the existing procedure places too much power in the hands of the unelected. If the EP had control over this procedure then greater accountability and democracy would be introduced to this process. The Constitution would give the EP the power to intervene in any decisions it didn’t agree with. This would ensure greater democracy as it may give the EP the power to reject a proposed law even if it has been approved by one of the three ‘comitology’ committees. It would also, extend the EP role in the legislative process and make the Commission more accountable to the EP/citizens.
Another important relationship is between the European Parliament and the European Council (the Council). The EC Treaty and other amending treaties since have sought to ‘inject’ greater democracy into this relationship by changing the voting system. Under the original EC Treaty a system of Single Majority (unanimous) Voting was used - each Member State had to vote in favour for a law to be passed. The Single European Act (SEA) altered this. The voting system was changed to Qualified Majority Voting (QMV). Now only 2/3rds of Member States have to vote in favour of a law for it to be passed. The effect this will have, with enlargement of the EU, remains to be seen.
In addition, the legislative process as a whole has been changed, to give the EP more influence over the legislation. The process is now more democratic as indirectly the citizens have a greater role, due to the increased role of the EP. Prior to the SEA the EP role was merely one of consultation i.e. EP had only to be ‘consulted’ before legislation was passed. The SEA introduced the ‘co-operation’ procedure. The ‘cooperation’ procedure allows the EP to review and amend the legislation, presented to them, by the Council before it is passed.
However, this is only used in a small number of areas, it is also not fully democratic as the Commission/Council are under no obligation to implement any amendments. The EP involvement in the legislative procedure was further expanded by the TEU. The TEU introduced the ‘co-decision’ procedure. The co-decision procedure allows the EP to read the legislation, and if amendments are proposed, to form a ‘conciliation committee’ with the Council to reach a compromise. If a compromise cannot be reached the EP can reject the legislation, but only by an absolute majority. In this sense greater democracy has been achieved as the EP is given the position of ‘co-legislature’, however more could still be done to introduce greater democracy.
The ToA, which further extended the areas in which ‘co-decision’ could be used and thus simplify procedure, addressed this problem; this added even greater democracy to the legislative process. The European Constitution would extend the ‘co-decision procedure’ to 100% of areas. Whilst this is a positive step it does not give the EP the power to pass legislation, however, this may be that can be achieved to give the EP power within the current legislative procedure.
Another point is that the Council doesn’t make the decision to pass legislation they merely ‘rubber-stamp’ it once it has bee passed. That decision is left to the Committee of Permanent Representatives (COREPER), which is a separate body.
Democracy, within the EC can only be fully achieved if two other important concepts are also fulfilled. These are Transparency and Subsidiarity. Transparency simply means that legislation should be made ‘openly’ and subsidiarity means that the legislation should be made ‘as close to the citizen as possible’. The importance of these two concepts, in connection with democracy has become more apparent in recent years. In 1993 an ‘Inter-Institutional Declaration on Transparency and Subsidiarity’ was signed by the EP, the Council and the Commission which showed how committed each was to upholding these principles. The TEU also contained a declaration on Transparency. This was further emphasised in 1996 at the Intergovernmental Conference (IGC), where it was stated that the aim of the conference was ‘make the Union more transparent and closer to the citizens’. Article 207was also drafted to further safeguard both these principles. Regulation 1049/2001, however, does not help uphold these principles of democracy, as it states that not all of the ‘official’ documents will be available to the public. In the context of the EC, transparency means that the Commission should meet in public when drafting legislation, as included in the Constitution. Subsidiarity, relates to the Commission when drafting legislation, it requires them to think how best to incorporated the legislation into national law e.g. Herbal Medicine Directive.
National Parliaments have also been given greater involvement in the EC. The powers of NP increased significantly. The TEU for example included a Declaration on National Parliaments, which said that NP should be given the opportunity to look over EC legislation. The ToA made this procedure legally binding. Furthermore, under the Constitution if a third of NP objects to the legislation it can be sent back to the Commission who will review it. This would reaffirm what an important part NP play in the (democratic) life of the EC.
Whilst it is said that the EC ‘lacks democracy’ there are various reforms, other than those suggested, which could help introduce greater democracy (list is not exhaustive). For instance, the EP could be reformed; this would ensure that the EP itself is democratic when acting in its designated role. The electoral process for EC elections could be made more democratic. In addition, various committees within the EC could be democratically elected e.g. Committee of Regions. The ToN has recently specified this. Including a ‘Bill of Rights’, which, would clarify the fundamental rights of the citizen relating to the democratic life of the EC. A ‘Charter of Fundamental Rights of the European Union’ was proclaimed at Nice, however it has not as yet been integrated into the EC Treaty. Such integration would address the problem discussed, and included a ‘Bill of Rights’.
Conclusions now need to be drawn about the ‘lack of democracy’ within the EC. One could argue that the EC has made giant steps in a short time (50 years). Alternatively, that the EC has not done enough to keep up with the changing needs of its citizens and if this is the case, will need to be quickly remedied. As regards the European Constitution, there are mixed views as to the impact, a Constitution may have, and whether or not it is necessary. In the final instance, regardless, of whether the EC Treaty is a constitution and/or lacking democracy it is clear the EC cannot carry on as before and (regrettably or not) the only way to solve this problem maybe through a Constitution where the fundamental principles of democracy can be upheld.
Bibliography
Textbooks
Journal Articles
- After Maastricht, are the Community Institutions more efficacious, more democratic and more transparent? – JC Piris – EL Review 1994
- The Single European Act – A Arnull – EL Review 1986
- Does the European Union have a Constitution? Does it need One? – EL Review 1986
- The constitution of the European Union after Nice: law making procedures – A Dashwood – EL Review 2001
- The Structure of the Union according to the Constitution for Europe: The Emperor is getting dressed – Article – EL Review 2004
- The Treaty of Amsterdam: A Brief Guide – P Craig – 1998 PL
Websites
http://europa.eu.int/index_en.htm
http://www.eurolegal.org/
Other Resources
Module Handbook
Lecture Notes
Seminar Notes
Oxford Dictionary of Law
Westlaw
‘Constitution for Europe’ signed 29th October 2004
Oxford English Dictionary
Oxford Dictionary of Law p108
After Maastricht, are the Community institutions more efficacious, more democratic and more transparent? (1994) EL Review
see ‘The Single European Act’ – A Arnull – 1986 EL Review for a discussion of the European Parliaments powers before the Treaty of European Union
Articles 246-248/188a-c EC
After an investigation into allegations of corruption, on 15 March 1999 the entire commission resigned
Amended Article 263 EC Treaty
‘Does the European Union have a Constitution? Does it need One? – JC Piris – EL Review (1999) and also ‘The Structure of the Union According to the Constitution for Europe: The Emperor is getting dressed – Article – (2004) EL Review
