democratic deficit critiques of the eu diluted
TRANSCRIPT
Seminar EU Constitut. & EU Institut. Law (Term paper)
Democratic Deficit Critiques of the EU Diluted
SJOERDSJE VAN OMMEN
July 2013
Keywords: democratic deficit – legitimacy – sui generis – EU institutions – parties – co-decision
procedure – representation – separation of powers – checks and balances
Contact information: S.J. van Ommen
S1739093 University of Groningen Professor: D. Kochenov
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1. Introduction
The functions of the European Parliament (EP) and other European Union institutions have changed
over time. In particular, the Lisbon Treaty delivered many institutional changes ‘desiring to complete
the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing
the efficiency and democratic legitimacy of the Union and to improving the coherence of its action’.1
Despite these efforts, the European Union (EU) is still being criticized of having a democratic deficit.
The EU is often seen as an ‘output’ democracy, meaning governance for the people instead of by, of
and with the people. This democratic deficit entails in general a lack of input democracy, and a lack
of political participation.2
The contribution of this paper falls into a category familiar among its leading experts, Fritz
Scharpf and Andrew Moravcsik, who claim that the EU is legitimate.3 This paper brings two
disciplines together – institutional law and political theory, and will be supported by empirical and
normative arguments concerning the main institutions and EU Member States (MS). The focus will be
on the legislative procedure which shows a democratic structure.
Since democracy does not necessarily reflect a legitimate regime, respect should be paid to
the concept of legitimacy, which will be dealt with in the first section. Second, the sui generis
character of the EU will be addressed. Because the EU is not a state, the democracy test is not
compatible to the EU, since it focuses on the nation-state. Whether this classification is required for
the legitimacy test does not seem to be the case. Advocacies of the democratic deficit hold on to the
myth of the Westphalian standard, of state sovereignty and territorial integrity. In essence, MS do
not want external actors to interfere in their internal matters, but cannot resist this tendency. In
their argument they compare the EU to the nation-state. Third, having a system of separation of
powers is generally seen as legitimate, including the rule of law and its checks and balances.
However, the EU does not address these powers to separate institutions. Fourth, an overview of the
checks and balances in the EU will be provided, as the institutions check each other and cooperate.
Moving away from this criticism is important for the well-functioning of the EU. Many high-
respected critics addressing this democratic deficit have founded their arguments on practices and
treaties before 2009, which are not accurate today. The Lisbon Treaty, which came into force in
2009, has brought many institutional changes. Besides, since the economic crisis, European citizens
and leaders became very sceptical and scrutinized, but this will not bring about harmonized policies
1 Treaty of Lisbon, Amending the Treaty on European Union and the Treaty Establishing the European
Community (2007/C 306/01), Preambule. 2 V. Schmidt, Democracy in Europe: the EU and National Polities, Oxford University Press (Oxford, 2006), p.
16-25. 3 Andrew Moravcsik, ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’
(2002) 40 JCMS.
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and risks a ‘protectionist reaction’. States should become more aware of their input possibilities to
make the EU stronger.
1. Legitimacy
Democracy is a tool for legitimacy, where the outcome does not matter. What the concept legitimacy
entails is important because there are illegal measures which are considered ‘normatively’ and/or
‘socially legitimate’, and legal measures which are considered ‘illegitimate’.4 Therefore, ‘legitimacy’,
either ‘normative’ or ‘social’, should not be conflated with ‘legality’. In his essay, Weiler distinguishes
three variations on the theme of ‘input’ and ‘output legitimacy’.5 The first is ‘process’ or ‘input’
legitimacy, which is compared with democracy. The second is ‘result’ or ‘output’ legitimacy. As the
best way to legitimize a war is to win it. The third is called ‘Telos’ or ‘political messianism’, where
legitimacy is gained by the promise of an attractive ‘promised land’.6
The first type of legitimacy deals with public power. Any exercise of public power has to be
‘legitimated’ democratically, and this is where the EU fails according to Weiler, because its lack of the
two primordial features of any functioning democracy, namely the principles of accountability and
representation.7 A reason for this lack of accountability is that it cannot meet the basic democratic
condition of the possibility of replacing the government. Though the EP can dismiss the European
Commission (EC), Weiler argues that this is not enough.8
Furthermore, there is a low voter participation rate, which is at national elections
considerably higher. The decline coincides with a continuous shift in powers to the EP. It seems that
the more powers the EP has gained, the greater popular indifference to it seems to have developed.9
These critiques of ‘democratic deficit’ have been subjected to two types of critique. The first is the
well-known critique of the ‘wrong criteria have been applied’ in measuring legitimacy of the EU. The
second, which Weiler finds most interesting, is implicitly an invocation of ‘result or output
legitimacy’. He states that EU legitimacy may be found ‘elsewhere’, since it is not a state and cannot
replicate or adequately translate the habits and practices of statal democratic governance.10
The second type is not convincing to address the democratic deficit problem. This type
attributes the lack of thrust to the output of the EU, most obvious the Euro crisis. As success leads to
4 J.H.H. Weiler, ‘Europe in Crisis. On ‘Political Messianism’, ‘legitimacy’ and the ‘rule of law’ (2012)
Singapore Journal of Legal Studies, p. 249. 5 Ibid., p. 250. 6 Ibid., p. 250-251. 7 Ibid., p. 251. 8 Ibid., p. 252. 9 Ibid., p. 254. 10 Ibid. 254.
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legitimacy, failure leads to the opposite. This scepticism is contagious all over Europe. However this
spill-over effect exists, it cannot give a comprehensive explanation for the democratic deficit.11
Third, the ‘messianic’ model explains, at least in part, why for so long the EU could operate
without a veritable commitment to the principles it demanded of its aspiring members, namely
democracy and human rights.12 Its justification derives from the destiny to be achieved. Weiler
further insightfully explains that it has been this way since its very start. For example, aspirant States
had to become members of the European Convention of Human Rights, but the Union itself did not.
MS had to prove their democratic credentials, but the Union itself did not.13 Originally, ‘democracy’
was not part of European integration.14 However, nowadays, the EU is trying to include more
democratic elements.
There are two levels of explaining the collapse of this messianic narrative. On the one hand,
the EU can be seen as a victim of its own success. At the beginning, the consolidation of peace after
World War II, and the internalization of the alternative interstate discourse marked a successful
period.15 On the other hand, the society has changed over time. The individual centred commitment
has been evolved in self-centred individuals. Social mobilisation in Europe is at strongest when the
direct interests of the individual are at stake and at their weakest when it needs to rely on the needs
of the other, as with the recent Euro crisis and the immigrant crisis.16
There will have to come a European solution, but for that solution to be perceived as
legitimate, the architects will not be able to rely on the decisional process of the EU itself. According
to Weiler, national parliaments, national judiciaries, national media and national governments have
to lend their ‘legitimacy’ to a solution which involves a higher degree of integration.17
The essence of Weiler’s argument is that though the EU does not meet the democratic ideals,
it may, nevertheless, be legitimate.
2. EU: no Sui Generis
Defining democracy is difficult because of the diverse opinions. According to Karlsson, Robert Dahl’s
definition of a fully democratic process is most suitable for examining the EU’s democratic status.
This democratic process must meet five criteria: (1) equality in voting; (2) effective participation; (3)
enlightened understanding; (4) final control over the agenda; and (5) inclusion.18 At first glance, this
11 Ibid., p. 255. 12 Ibid., p. 259. 13 Ibid., p. 259. 14 Ibid., p. 260. 15 Ibid., p. 267. 16 Ibid., p. 268. 17 Ibid. 18 Christer Karlsson, Democracy, Legitimacy and the European Union (Uppsala University Library, Uppsala
2001) p. 36.
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test seems appropriate and relevant, though, Karlsson comes to the conclusion that Dahl’s criteria
would be hard for any political process to satisfy. Therefore, Dahl states that: “[e]ven if the criteria
can never be perfectly satisfied, they are useful in appraising real world possibilities”.19 The
legitimacy test of democracy, as understood by Dahl and other prominent scholars, are all based on
the nation-state. Scholars that point to the sui generis character of the EU are trespassing the fact
that the EU also pursues a democratic government, though not satisfying the criteria, but therefore is
in this line comparable to nation-states. Democratic standards are goals which institutions are trying
to reach, this genuine pursuit makes a regime legitimate.
On the other hand, EU institutions are not to be compared to national institutions. Fabbrini
points correctly to the different structures of EU government/governance. These are intertwined, as
vertical decision-making (government) will continue to interact with horizontal decision-making
(governance).20 He believes that the sui generis paradigm is inadequate because it does not recognise
the applicability of the democratic criteria of effectiveness and accountability. He finds it necessary
to abandon the idea that the EU is a sui generis political system for being able to act effectively and
transparently.21 The sui generis paradigm is inadequate and a cognitive constraint on the EU’s
democratization, since the fundamental distinction (institutional or functional) in every system of
government between the executive and legislative branches (and between these and the judiciary)
tends to become blurred in the sui generis view of the EU.22
As Fabbrini puts it, the sui generis paradigm is associated with a system without division of
powers. Though, highly respected scholars do not agree upon the EU structure, whether
supranational, federal or other. This disagreement would suggest that it is sui generis, but the
implication made by Fabbrini that it then would lack a separation of powers is not true. This
argument is supported by Ziller in particular, and will be explained below. The fact that there is no
common understanding of the EU nature and does not correspond with domestic structures may not
lead to the assumption that the EU is sui generis.
Schütze points correctly to three problems with the sui generis argument. First, he states that
it is based on a conceptual tautology. This theory would suggest that it fails to analyze and asserts
that no analysis is possible or worthwhile. Second, it views the EU in negative terms, as it is neither
an international organization nor a federal state, and thus perpetuates the conceptual foundations of
19 Ibid., p. 37. 20 Sergio Fabbrini, ‘The Institutional Future of the European Union’ (2011) CIES e-Working Paper No. 109 <
https://repositorio.iscte.pt/handle/10071/2972> accessed 5 June 2013, p. 6. 21 Ibid., p. 8. 22 Fabbrini (2011), p. 6 and 8.
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the European traditions. Third, by not providing an external standard, the sui generis theory cannot
detect nor measure the EU’s evolution.23 The EU should therefore not be seen as sui generis.
According to Schütze, the EU has shifted from ‘dual’ to ‘cooperative’ federalism. Dual
federalism is based on the idea of dual ‘sovereigntly’, which is divided into blocks of exclusive
powers. So, they act independently in their separate spheres. On the other hand, in cooperative
federalism, sovereignty is shared in which legal regulation of different levels competes to regulate
the same areas.24 The EU has constitutionalized this cooperative federalism through the principle of
subsidiarity and complementary competences.25
Schütze sees the EU as having two arenas of democracy: the ‘state demos’ and the ‘federal
demos’. Both should be taken into account looking at legitimacy.26 The standards that should be
employed to assess the democratic credentials of the EU crucially hinge on how the EU is
conceptualized.27 Investigating the separate powers of the EU provides insight into this.
3. Separation of Powers in the EU
Aristotle, first, introduced the idea of different elements or aspects of the constitution, distinguishing
between the deliberative body, the magistracies and the judges, in order to limit absolute power.28 In
1748, baron Charles de Montesquieu developed this further and published The Spirits of Laws,
identifying three powers (legislative, executive, and judicial) in order to establish the rule of law. The
rule of law remains central in modern societies, in which citizens have legal certainty and are able to
know the law.29 There are, however, two conceptions of the ‘separation of powers’ principle. The
first is illustrated in the US’ constitution. Here, the separation of powers refers to the division of
government responsibilities into distinct branches (trias politica) – namely the legislative, executive,
and judicial – in order to limit any one branch from having power over another, and to provide for
checks and balances.30 The framers of the US’ Constitution brought this separation of powers in
relation to the concept of ‘check and balances’.31
23 Robert Schütze, European Constitutional Law, Cambridge University Press (Cambridge, 2012), p. 67. 24 Robert Schütze, From Dual to Cooperative Federalism. The Changing Structure of European Law, Oxford
University Press (Oxford, 2009), p. 5. 25 Schütze (2009), p. 284. 26 Schütze (2012), p. 75. 27 Ibid., p. 76-77. 28 Gerard Conway, ‘Recovering a Separation of Powers in the European Union’ (2011) European Law Journal,
Volume 17, No. 3, p. 307. 29 Schütze, p. 83. 30 National Conference of State Legislatures, ‘Separation of Powers’ (overview)
<http://www.ncsl.org/legislatures-elections/legislatures/separation-of-powers-an-overview.aspx> accessed 26
May 2013. 31 Conway (2011), p. 308.
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The second conception sees the distribution of powers as a combination of powers.
Montesquieu stated that ‘(..) it is necessary to combine the several powers; to regulate, temper, and
set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the
other.’32 The principle is thus also a system of checks and balances.
This section will argue that, since the Lisbon Treaty, the EU has acquired institutional features
that show this second conception of separation of powers. EU institutions take part in a combination
of governmental function. This provision of inter-institutional balance of article 13 (2) of the
Consolidated Version of the Treaty on European Union (OJ 2010 C83/01) (TEU) reads as follows:
‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in
conformity with the procedures, conditions and objectives set out in them. The institutions shall
practice mutual sincere cooperation.’33 The separation of powers is compatible with democracy and
the rule of law, and vice versa do democracy and the rule of law require a division between the
legislature and judiciary.34
Jacques Ziller explains this by pointing to the mythical representation of a simplified version
of Montesquieu’s theory (i.e. the division of government in three autonomous branches, legislative,
executive and judicial, corresponding each to a specific institution). Instead, government functions
are separated, which are distributed in different ways amongst autonomous institutions, including a
system of checks and balances designed in order to avoid any monopoly in decision making.35 The
tripartite division of powers of Montesquieu does simply not correspond with the complexity of
government functions in modern democracies. In a way his argument reflects the second conception
of the separation of powers type in which powers are combined between different institutions that
collectively are responsible a distinct power.
3.1 The Legislative Power(s)
It is widely agreed that the EP and the Council have a ‘legislative function’.36 With the entry into force
of the Lisbon Treaty, the 'Ordinary Legislative Procedure' (hereafter: ‘co-decision procedure’) became
the main legislative procedure of the EU´s decision-making system. According to article 294 of the
Treaty of the Functioning of the European Union (TFEU), the directly elected EP has to approve EU
legislation together with the Council. It may thus be seen as a bicameral system. Since the Treaty of
Lisbon, it has extended the role of the EP by extending the co-decision procedure to forty new
32 In: Schütze (2012), p. 84. 33 Art. 13 (2) Consolidated Version of the Treaty on European Union (OJ 2010 C83/01) (TEU);. 34 Conway (2011), p. 308. 35 Jacques Ziller, ‘Separation of Powers in the European Union’s Intertwined System of Government. A Treaty
Based Analysis for the Use of Political Scientists and Constitutional Lawyers’ (2008) Il Politico, Univ. Pavia,
Italy, anno LXXIII, n. 3, p. 137. 36 Ziller (2008), p. 140.
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fields.37 Moreover, it introduced to a certain extent a checks and balances structure, as new rights to
be informed on the activities of the European Council, the rotating Council presidency, and the
Union's external action have been introduced. Notably, it has given the EP the right to propose
changes to the Treaty.38 Clearly, the EP, in which all of the MS are represented, has gained more
power. The Lisbon Treaty also introduced an ‘emergency break’ for some areas of legislative
competence.39 This is laid down in article 48 (7) TFEU, which provides for the extension of the co-
decision procedure by giving national parliaments a right of veto within a period of six-months.
National parliaments play an important role in the legislative procedure. Moravcsik also
underscores the role of national parliaments. He claims that inter-institutional checks and balances,
indirect democratic control via national governments, and the modest but increasing powers of the
EP are more than sufficient to ensure that EU policy-making is ‘generally clean, transparent, effective
and politically responsive to the demands of Europeans’.40
This role of national parliaments implies more government by the people. Though, it are the
MS that decide on the procedural rules. Consequently, voting practices vary among the MS. This
aspect could need some adjustment to ensure European citizens to have equal (indirect) input.
Further, the Lisbon Treaty maintained the procedures designed in the Constitutional treaty
for the adoption of ‘delegated’ and ‘implementing’ acts by the Commission (articles 290 and 291
TFEU). The new articles 290 and 291 introduce new concepts in EU primary law.41 As may be seen in
article 290 TFEU (taking over article III-340 Constitutional treaty), which further develops the concept
which was underlying the concept of ‘delegated legislation’. This concept clearly opts for a system of
delegated legislation – as is known in most constitutional systems of European countries. The Lisbon
Treaty, therefore, shows a clear distinction between the ‘legislative function’ and other types of rule
making which usually are part of the executive function.42
Moreover, the European Citizens' Initiative (ECI) enables a number of at least one million
citizens that come from a significant number of MS to ask the Commission to bring forward
legislative proposals within the framework of its powers.43 This ECI is an important initiative to
involve European citizens in the legislative process (though on a small level), and to create a ‘real’
European population.
37 ‘European Parliament’ (glossary)
<http://europa.eu/legislation_summaries/glossary/european_parliament_en.htm> accessed 23 May 2013. 38 Ibid. 39 Conway (2011), p. 309-310. 40 Andrew Moravcsik, ‘Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis’ (2004)
Government and Opposition, Volume 39, Issue 2, p. 338. 41 Ziller (2008), p. 149. 42 Ibid., p. 146. 43 Art. 11 (4) TEU; Art. 24 (1) Consolidated Version of the Treaty on the Functioning of the European Union
(OJ 2010 C83/01) (TFEU).
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3.2 The Executive Power(s)
The Lisbon Treaty has also contributed to the clarification of the concept of executive function. The
new wording given to article 17 TEU (based upon and replacing to a large extent the previous articles
211, 214 and 217 EC Treaty) establishes the powers and functioning of the EC. After the Lisbon
Treaty, the treaty is more explicit about the function and role of the EC, whereas the EC Treaty only
mentions en passant that the Council may confer to the Commission powers for the implementation
of the rules it lays down.44 The Lisbon Treaty also established a post of the High Representative for
Foreign Affairs and Security Policy. This position entails a vice presidency of the Commission,
chairmanship of the Council of Ministers sitting as the Foreign Affairs Council, and participation in the
work of the European Council, but it remain distinct branches as in national systems, foreign policy is
not conducted via legislation.45
In principle, implementation of EU legislation is the duty of MS. Article 291 (1) TFEU specifies
that ‘Member States shall adopt all measures of national law necessary to implement legally binding
Union acts.’ This is also applicable for provisions of the TEU and TFEU that are ‘sufficiently clear and
unconditional’ to be immediately applicable. The so-called ‘loyal cooperation clause’ is important in
this respect, as it states that ‘Member States shall take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action
taken by the institutions of the Community’, and that, while doing that, ‘[t]he Member States shall
facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise
the attainment of the Union’s objectives.’46 The EC has indirect power when the MS breaches or fails
to comply with EU law.47 It may sue a MS before the European Court of Justice (ECJ) pursuant to
article 258 TFEU.
Based on the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the MS in specified areas.48 The power of the EU does not go
beyond what is agreed upon by the MS. This principle goes hand in hand with the principle of
subsidiarity and proportionality as laid down in article 5 and 6 TEU, according to which ‘the Union
shall act only within the limits of the competences conferred upon it by the Member States in the
Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the
Treaties remain with the Member States’. This means that the EU will not take action, except in the
areas that fall within its exclusive competence and when it is considered more effective than action
taken at national, regional or local level (subsidiarity). The principle of proportionality requires that
44 Ziller (2008), p. 149-150. 45 Conway (2011), p. 312. 46 Art. 4 (3) TEU. 47 Conway (2011), p. 312. 48 Art. 3 & 4 TEU, Declaration No 18 annexed to the Treaty of Lisbon, art. 352 TFEU.
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any action by the EU should not go beyond what is necessary to achieve the objectives of the
Treaties.49
Though, ‘[w]here uniform conditions for implementing legally binding Union acts are needed,
those acts shall confer implementing powers on the Commission [...]”.50 Ziller calls this the principle
of ‘executive subsidiarity’.51 According to article 291 (2) TFEU, the executive function pertains, at the
EU level institutions, as a matter of principle to the EC, ‘[w]here uniform conditions for implementing
legally binding Union acts are needed, those acts shall confer implementing powers on the
Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of
the Treaty on European Union, on the Council[...]’. Moreover, Ziller correctly states that the new
wording of article 291 (3) TFEU, (in combination with article 290 TFEU) clarifies that comitology is
linked to the executive function, not to the legislative, in which the MS are also the component of the
Council, not of the EP.52
3.3 Judicial Power(s)
Article 17 TEU reads as follows: the EC ‘shall oversee the application of Union law under the control
of the Court of Justice of the European Union.’ Though it seems that the EC functions as a watchdog,
it has no real enforcement mechanisms, these are in the hands of MS only. Critics, who speak about a
democratic deficit, also see comitology as crucial, which is an inevitable and indispensable feature of
administrative governance.53
Further, the judicial function has a complex structure. Article 19 (1) TEU provides that ‘[..]
Member States shall provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law.’ So, it all comes down to the MS to execute certain decisions and policies. In
the end, the EU remains multilateral, based on a treaty. Though, this system embraces judicial review
of acts of the EU institutions and challenges to national law for incompatibility with EU law. It also
entails a preliminary reference system which is important in linking national courts application of EU
law with the case law of the ECJ.54 The ECJ has developed a doctrine of state liability for breaches of
EU law. This is a main development in the law enforcement system.55 Together with the doctrine of
supremacy and direct effect, and the specific institutional rules on the operation of the ECJ reinforce
49 ‘Subsidiarity’ (glossary) <http://europa.eu/legislation_summaries/glossary/subsidiarity_en.htm> accessed on
28 May 2013. 50 Art. 291 (1) TFEU. 51 Ziller (2008), p. 151-152. 52 Ziller (2008), p. 152. 53 See Joseph H. H. Weiler, 'European Democracy and Its Critics: Polity and System', in The Constitution for
Europe, Cambridge: CUP, 1999, pp. 264-285; 54 Conway (2011), p. 313. 55 Ibid.
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the autonomy and power of the Court.56 Pursuant to article 19 (2) TEU, ECJ judges are appointed by
the MS collectively from each MS. This nomination, however, is subject to national rules.57
4. Checks and Balances
The endowment of the main legislative procedure of the EU´s decision-making system clearly lies
with the Council and the EP. However, there are also special legislative procedures which do not
imply co-decision-making by the EP. The EC also plays a major role in the legislative process, as the
draft wording that will be discussed in the legislative process is chosen by the EC. Moreover, the EC
can withdraw its proposal when the legislator goes in a direction which it deems contrary to the EU’s
interests. Besides those primary EU institutions, structured interest groups, lobbyists, and other
actors play an important role during the legislative process.
After the Lisbon treaty, is seems that the EC is in charge of execution, though, the European
Council and the EP have a decisive impact. Also, the MS are of influence and application relies for a
great part on the MS. Though, important here is that the EC can hold the MS accountable, as the EC
can sue MS before the ECJ in case of non-compliance. The ECJ and the EC are endowed with the
supervisory function. Besides, the European Council and the EP have to some degree impact on the
exercise of supervision, since they have the power to appoint and dismiss the EC.
MS are endowed with a special role in providing for judicial remedies, as article 19 TEU states
that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the
fields covered by Union law.’
At each layer, institutions and actors seems to be interwoven, but this does not imply that
there is no separation of powers. Instead, this coincides with the second type of separated powers,
as explained earlier. The combined roles and institutions, rather, reinforce the checks and balances.
No institution can work separately nor independently. The multi-level distribution of functions
creates more transparent democratic processes.
Problematic is the combined role of the EC in the executive and legislative function while it
also has the major role in supervision.58 Though, MS have massive input particularly in the first two
functions, as well as in the ‘oversight’ function, since MS play a special role in the system of judicial
remedies. Therefore, Ziller is right by stating ‘intertwined’ government fits better than ‘multilevel’
government,59 as they work together with EU institutions.
56 Conway (2011), p. 314-315. 57 Ibid., p. 315. 58 Ziller (2008), p. 165. 59 Ibid., p. 166.
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5. Conclusion
That there remains a democratic deficit, even after the Treaty of Lisbon, is without a doubt. As
democracy does not necessary represent a legitimate policy, it is worthwhile to look at the different
types of legitimacy. According to Weiler, there are three types of democratic legitimacy. The first is
public power which falls short because its lack of the two primordial features of any functioning
democracy, namely the principles of accountability and representation. Citizens can influence policy
via the ECI, and by electing directly the EP, but still accountability and representation are
underdeveloped. Besides, there is a low voter percentage. The second type deals with ‘output’
democracy. As the last decades witnessed an economic depression, people’s thrust in the EU
decreased gradually with it. The third is the ‘messianic model’ whereby justification derives from the
destiny to be achieved. As the original objectives of the EU were economic growth and European
integration, nowadays, democracy also becomes a major objective as a tool for legitimacy.
In assessing the democratic value, the EU should not be considered as sui generis. This
argument is best defended by Schütze as he points out three problems with this. First, he states that
it is based on a conceptual tautology. This theory would suggest that it fails to analyze and asserts
that no analysis is possible or worthwhile. Second, it views the EU in negative terms, as it is neither
an international organization nor a federal state, and thus perpetuates the conceptual foundations of
the European traditions. Third, by not providing an external standard, the sui generis theory cannot
detect nor measure the EU’s evolution.
A democracy test only seems to be available at the national level. As the separation of
powers is initially designed for the nation-state, but does provide insight into the functioning of the
EU. Using the traditional conception of the separation of powers, the EU does not provide a
separation of powers between legislative, executive and judicial branches (but neither does any
national system). The democratic standards are, therefore, best understood by the second
conception of the separation of powers principle, which sees the distribution of powers as a
combination of powers. Interpreting this second type, the EU does have to a certain extent separated
powers, or as Ziller calls it: ‘functions’, including its system of checks and balances, which is an
important democratic element.
In the EU various parties, at every level, can exercise at some point in the process their
influence. MS have power in almost all EU institutions, as well as non-governmental organizations
and lobby groups. These inter-institutional checks and balances safeguard democratic EU policy
making. By including all those actors in the legislative process, the EU is transparent and consensus-
oriented. Though there are points to improve, perfection is difficult, if ever, to achieve. However it is
always good to be critical, democratic elements should not be ignored. Particular attention has been
paid to the changes made by the Lisbon Treaty. It has certainly made contributions to democratic
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elements by explicitly linking powers to the institution(s), most salient the transformation of the EP
from secondary to equal participant in the EU’s legislative process. It is up to the MS to execute these
properly. Sincere cooperation and loyalty are core principles of the EU, which are crucial in this
regard.