Dmytro Volodin
How to legitimate the European
Union and the integration process:
EU governance approach
Rocznik Integracji Europejskiej nr 5, 97-109
2011
DMYTRO VOLODIN
LUISS GuidoCarli Schoolof Government,Italy
How
to
legitimate
the
European
Union
and
the
integration
process:
EU
governance approach
1. Introduction
“A democratic regime is onein which political power is based on the willof the peo
ple,andwhich providesall citizenswiththe opportunity to participate equally in thepo litical life of the state”1. The EU Treaties indeed claim that the Union is now a democraticregime withits own system of democracy. This isevidentfromthe pream
ble of the Treaty on European Union(TEU)wherebytheEU draws inspiration from certain valuesincluding democracy; it declares attachment tothe principle and also de sires the democratic and efficientfunctioning ofits institutions2.
1 Neuwahl, Wheatley, The EUand Democracy - Lawful and Legitimate Intervention in the Do mestic Affairs of States?, Chapter 13,in: Accountability and Legitimacyinthe European Union, eds
Amull, Wincott (OUP,2002), p. 223.
2 TreatyonEuropean Union [2010] OJ C83/13, Preamble paras2, 4and7.
3 TEU Preamblepara 13; Treaty ontheFunctioning of the European Union [2010] OJC 83/47, Preamble para 1.
4 SeeCase6/64 Costa vENEL[1964] ECR 585, para 3 on the limitationofsovereignty. 5 Case26/62 Van Genden Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, p. 12.
6 2 BvE2/08Gauweiler vTreaty of Lisbon, Judgment of 30 June 2009(hereinafter ’Gauweiler’). Both theTEU and theTreaty on the Functioningof the EuropeanUnion (TFEU) re
fer to the ‘peoples of Europe’3 showing that the Union is intended to be more than just asimple association ofstates; it isdesignedto bring together the citizensof Europein unity. This suggests that according to the Treaty ofLisbon itis they who limited their sovereignrightsthroughthe MemberStates to create a body of law whichbindsthem
and thestates themselves4, and thatthe powers of theUnion come from the people not just governments. Thispresupposes someform ofparticipation of the people inthe pro cess of integration. It has beenlong established that citizens have been giventhe possi bility to rely on Treaty rights in the national courtsthrough the doctrine of direct effect5. People therefore naturally wish tohave a voice inEuropean lawmaking throughdemo
cratic processes.
In Art. 10(1) TEU it is acknowledged thatthefunctioning of theEU is now founded on representative democracy.YettheTreaty ofLisbon received strong criticismfrom
the German Constitutional Court intheGauweiler case6,claiming that the EUis still far frombeing such a regime. It will be examinedin this paper whether the above men
98 Dmytro Volodin RIE5’11
done to achieve this after the new Treaties. Our discussion will alsofocus on whether the supposeddemocratic features of the EU are sufficienttolegitimatethe process of
integration. Duetothechanges brought about by the Lisbon Treaty beingvery recent, there is little experienceyet on their practical application.However thenew institu tional setting, the processesand the increasedrole of theEuropean Parliament andna tional parliaments will provide plenty of guidanceto examine thesefascinatingissues
in detail.
2.The democracy challenge
2.1.Theneed for the EU tobedemocratic
Does it matterwhether theEUisdemocratic? After allit isnot a sovereignstate,so some might even question the necessity ofthis discussion. However it wouldbe oddfor
the Treaties to mentionthe conceptofdemocracy so openlyifthere wasnoexpectation
for people to be represented in the Union. In fact evenif theEU is nota state,it can nei
therbe saidthat it ismerely a classic international organisation suchasthe United Na
tions or the Council of Europe.
The identity oftheUnion7has been debatedever since it was created, causing several theories to be developed. The initial arguments centred on the ideas of intergovemmentalism and supranationalism8. The former was shownby the Luxem
bourgcompromise in 1966 allowing governments to retain total control of the legisla
tive process. The VanGend en Loosjudgment9 on the other hand suggested thattheEU
was rather an entity above the nation states. Others suggested ideas of federalism,
whereby a constitutional settlement was contemplatedbydelegating power to a higher form of government10,and functionalism that focused onfulfilling the needs of the peo
ple, ratherthanthe form of regime under which thiswasto be done11. Anyhow it be
came clear thattheUnion wastobecomemore of a state-like entitywith its own legal
system12.
7 First called the European Economic Community(EEC) and then the European Community
(EC)-Chalmers, Davies, Monti, EuropeanUnionLaw, 2nd ed,(CUP,2010) (‘Chalmers etai’), p. 2. 9 Supra, note 5.
10 Rosamund,Theories of European Integration, Macmillan, 2000, p. 1. 11 Ibidem, p. 1-2.
12 Supra, note4.
Since this early perception of the Union, it has undergone very fundamental changes in thelast two decades. TheTreaty ofMaastricht introduced theCommon Foreign and
Security Policy and Justice and Home Affairs (later named Police and Judicial
Co-operation inCriminal Matters) as separate pillars.The latter of thesenowhasfull
application after the abolition of the pillar structure by the Lisbon Treaty. This means that the Union hasincreasinglybeentapping into areas which were traditionally re
servedto nation states. TheEUwas also creatingmore legislation more intensely than
ever before13.
13 Chalmers et al, p.26.
14 WhitePaper on European Governance,COM (2001) 428, [2001]OJ C 287/1 (’theWhite Paper’), p. 27.
15 Amull, Introduction: The EuropeanUnion’s Accountability and Legitimacy Deficit, Chapter 1, in: Accountability and Legitimacy inthe European Union,eds Amull, Wincott, OUP, 2002, p. 7.
16 Gauweiler, para272. 17 See Art. 294 TFEU.
There is no doubtthat once EUlegislation was increasingly affectingtheirrights, people started tohave similarexpectations for the EU as for domestic politics and polit ical institutions14. Additionally it hasbeen observed that as Europeans became more prosperous they were less willing to accept government by unaccountable elites15. Therefore there is now a sense of a need for democracy in Europe. Only then will the process ofintegration beaccepted by citizens andthis process will onlybecome legiti mate in theireyes. They must therefore be givena chance to influencedecisions that are affectingtheirlives. Itis not settled, however, in what way this must be achieved. The
Gauweiler caseacknowledged thatthis doesnot need to be done in the same way as it is in Member States16.Nevertheless it is submitted here that the democratic processes must be visible andshould confera realpossibility ofparticipation on citizens. Whether thishas been achieved is amatter for detailed analysis.
2.2. Democracy in the Lisbon Treaty
As seen above, the new Treatymakes clear references tothedemocratic commit ment of the Union. Title II of the TEU is entirely devoted to ‘provisions on democratic principles’.
Art. 9 TEU exposesthe principle of equality ofcitizens. Art.10 TEU points outtwo distinct featuresof democracy:representative and participatory democracy. The latter
is developed byArt. 11(4) TEU, which includes the ‘citizens’ initiative’, allowing
a minimum ofone millioncitizens to invite the Commissionto submit aproposal for
consideration. Arts 11(1) to (3) TEU aim to allow increased citizen participation through exchanges of views, dialogue and consultations. Art. 12 TEUgives greater
rightsto nationalparliaments in the legislativeprocess.
Beforeconsidering theseinstitutionalchangesin more detailin section 3, othernew features must be pointed out. The TFEU in Arts 2-6 contains acatalogueof EU compe tences whose aimis to ensure that these are clearly observed and theareasreserved for
the Member Statesare not encroached upon. Art. 6(1) TEU makes the Charter of Fun
damental Rights legallybinding,whichoffers increasing protection for citizensunder
EU law, andensuresthat these rights arenot hidden awayin thejudgments of theCourt
ofJustice of the European Union (CJEU), as before. The protection of suchrights is
a typical feature ofa democraticsystem.As will beseenbelow,the ‘co-decision proce dure’ has now become the ‘ordinary legislative procedure’17, indicating that the in
100 Dmytro Volodin RIE5’11
Despite these efforts of thedrafters of theTreaty,the GermanConstitutional Court
still claims that theTreaty ofLisbon does notleadto a new level of development ofde mocracy18.Nevertheless itmustbeacknowledgedthat democracy in the EU has been
made more visible by the new Treaty.More possibilities have beenopenedupfor peo
ple toparticipate and havethemselves heardthroughconsultation,the citizens’ initia
tive and the enhanced roleof national parliaments. It is anothermatter that this is not considered sufficient by some. The opportunities arethere to be used.
18 Gauweiler, para295.
19 Procedure set out in Art. 294 TFEU. 20 Gauweiler, para 211; seealso supra,note1. 21 Arts 10(2)and 14(2) TEU.
22 Chalmers et al., p. 47. 23 Art. 14(2) TEU. 24 Art. 22(2) TFEU. 25 Gauweiler, para 104.
3. The democratic institutions of the Union
The institutions of the Union are set outinArt. 13(1) TEU. The threekey playersin Union law making are: theParliament, the Council and the Commission19. These are verydifferent as regards theircomposition. The Parliament is where citizensare repre sented, the Council brings togetherMember State governments, while theCommission
is composed of expertsresponsible for a particularfield. Sohowcan citizensinfluence the decision makingprocess? After allit is theywhoneed todetermine publicauthority
in a democracy20.The role of theinstitutions and ways ordinary people can participate
in theseprocesses will now be examined.
3.1. The European Parliament
The European Parliament (EP) is akey institution for ensuring legitimacy through representativedemocracy, as it is where ‘citizens are directly represented at Union
level’21. It now has equalpowers to the Council in the ordinary legislativeprocedureas
defined in Art. 294 TFEU.This procedurenow applies to 40 newareas22 after amend ing the old treaties, givingthe Parliament more influence in law making than everbe fore. Representation is degressively proportional, with small Member States being
guaranteed a minimumof 6seats23. Since1979the Parliamentis directly elected, every citizen of theEU having the right to vote orstand as a candidate inits elections24.In
many respectsit resembles national parliaments where a state’s citizens are represented. This featureaims to give theEU greater legitimacy through increasing democracy.
However, this institution has beensubjectto fierce criticism. InGauweiler,the appli
cants argued that the Parliament did not comprisethe characteristics of arepresentative bodysinceMemberStates with low number of inhabitants are granted adisproportion
cannot comply withthe principle ofequal political right to vote ofall citizens, as re quired at nationallevel26. It essentially calls into question the principle enshrinedin
Art. 9TEU with respect to the EP. Italso pointsout that it lacks a system of government
and opposition27. Others also comment thatit has several weaknesses whencompared
to national parliaments,such as nothaving a right of legislative initiative (which is re servedto theCommission)and not havinga decisivefunction in all EU lawmaking28. It
has even been claimedprior to Lisbon that no one who votes in EU elections has
astrong sense of affecting criticalpoliticalchoices29.
26 Ibidem, para271. 27 Ibidem, para280.
28 Bredt, Prospects andLimitsof Democratic Governance inthe EU, “European Law Journal” 2011, vol. 17, 35, p. 38.
29 Weiler,European Democracy andits Critics: Polity and System,Chapter 8, in: Weiler, The
Constitution ofEurope, CUP, 2000, p.266. 30 Art. 15(6) TEU.
31 Arts 283(2) TFEU and 286(2) TFEU. 32 Art. 255TFEU.
Thesecriticisms aretrueto a largeextentsince although there arepolitical groups at
Europeanlevel,theyarecomposedofrepresentativesofnational parties and none of them is likely to have a majorityin the Parliament. Therefore parties cannotjust rely on their majority to pass legislation conformingtoa set of policies,asitisoften doneat na tional level. Inparliamentary systems legislative chambers and governments are often
interlinked (justlike in the UK House of Commons), so voters canchoose not only MPs, but also thepartywhoseMPs will form members of the government including the
Prime Minister (or otherhead of government). This is notpossible atEUlevel as elec
tors only elect peoplewhocan then vote on legislative proposals without beingable to carry out a policy programme. Furthermore, national parties often tendto reserve their
best candidates fornational elections,leaving lessable or at least less well-known fig
urestostand asMEPs.These representatives are less likelyto beable to connect tovot ers at home, causing even more alienation of people from European politics. This
meansthatitmustbeaccepted that the European Parliament still cannot be equated to national legislatures,even afterLisbon.
On theother hand there areadditionalfeatures that enable theEP to controlEU proce
dures. It has already been stressed thata lotmorelegislationaresubjectto parliamentary control than under the old treaties.Inadditionthe EuropeanParliament also hassomeinflu
ence over the European Commission, a body responsible notonly for initiating legislation,
but also having an executive role. Firstofall under Art. 17(7) TEU it is the EPthat proposes a candidate for the Presidentof the Commission and then it is responsiblefor electing him
or her. Accordingto Art. 17(8) TEU the Commission once appointed is responsible to the Parliament. The latter can evenvoteon a motion of censure of the Commission.
Whilethe Parliamenthas limited power in overseeing thework of theother institu
tions it has some roleof consultation. For example the European CouncilPresident
must presenta report toitafter eachmeeting30. It mustbe consulted beforeappointment
of members of the European CentralBank and theCourt of Auditors31. Itcan also pro poseone panel member for giving opinion on the judgesto be appointed to the CJEU32.
102 Dmytro Volodin RIE5’11
This shows thatthe EP doeshavesome role relatedtothe otherdecision makers,al beit clearly a verylimited one.However,the problem regarding equality of citizenscan becountered. The GermanFederalGovernment in the Gauweiler case pointedout that thereason for not having equality of votersin the European elections is dueto the prin
ciple of equality of states33. Tomuschat also observesthatthe Court’s argument in this respectis erroneous as itmisunderstands the logicof afederal entity. By that rule the
US Senate (upper chamber) wouldlack democratic legitimacy34. This problem is not
a unique EU feature as evenMember Statescannotalways achieve equality in domestic constituencies35. Domestic systemsare still regarded aslegitimate.
33 Gauweiler para 148.
34 Tomuschat, TheRulingof the GermanConstitutionalCourt on the Treaty ofLisbon,“German Law Journal” 2009,vol. 10, 1259,p. 1260.
35 Inthe UKin the EastMidlands for example Melton has 38 266 voters while Chamwood has 130 936, see http://boundarycommissionforengland.independent.gov.uk/east-midlands/.
36 Lord, AssessingDemocracyin a ContestedPolity, “Journal ofCommon MarketStudies” 2001, vol.39, 641, p. 652.
37 See Art. 16 TEU.
38 WhitePaper,p. 4.
39 Moravcsik, InDefence of the ’Democratic Deficit’: Re-assessingLegitimacyin the European Union, “Journal ofCommon MarketStudies” 2002,vol. 40,603, p. 605.
40 Discussed inWohlfahrt, TheLisbon Case: a Critical Summary,“German LawJournal”2009, vol. 10,1278,p. 1279, although theauthorpoints out the Court’s criticalapproach towards thisargument.
A possible solution could be a European list fromwhere let’ssay 10per centof MEPs couldbeelected36. However it would still have to beensured that small Member
States get sufficientseats to have at least some voice inEuropean politics.
3.2. The Council and the Commission
The other legislative institutions possess quite differentfeatures totheParliament
and it is questionable, whethertheir respective roles fit into the idea of the Union’s functioning being founded on representative democracy.
The Councilcomprisesthe ministersof the democratically electedgovernments of
the Member States37, so it does represent citizens, albeit indirectly. It contributes to
EU-level democracy since together withthe Parliament it is said to give theEU a ‘dou
ble democratic mandate’38. Moravcsikalso agrees with this and claimsthat indirect rep
resentation in the Council together with direct representation through the EP with increasingpowers is sufficient to ensure therepresentation of citizens39.
The ‘double qualifiedmajority’under Art. 16(4) TEU and Art. 238(3) TFEUalso has somelegitimisingeffect40 as votesin favour ofa legislation now haveto compriseat least 65% cent of the population of the Member States.So unequal distribution ofvotes cannot be argued against this procedure.The Council can therefore be seen as more ofarepre sentative of the majority of the Union’s population. Ontheother hand thisstill does not make theCouncil a representative body ofcitizens, especially that opposition partiesare
notrepresentedthere. It is therefore questionable as to what extent thisinstitution can be a representative of the views of the people, evenafter the Treaty amendments.
The Commission isthe EU’sexecutive body,also having overseeing, coordinating
and external representative functions, and it has the sole rightof legislative initiative41. Itis a completely independent body. Its members are proposed bynational Govern ments,but then recommendedby the President-elect andthen elected by the Parliament
as mentioned above. It is comprisedof experts of different fields, so is regarded as
anon-representativetechnocratic body.Its members are not directly accountableto citi zens, althoughas alreadymentionedthe Parliament has some control over it.
41 Art. 17 TEU.
42 Craig, The Nature of the Community: Integration, Democracyand Legitimacy, Chapter 1, in:
The Evolution ofEULaw,eds Craig, de Bürca,OUP, 1999, p. 7.
43 Niedobitek, The Lisbon Caseof30 June 2009: A Comment from the EuropeanLaw Perspec tive, “GermanLaw Journal” 2009, vol. 10, 1267,p. 1268.
44 WhitePaper, p. 13.
45 Protocol(No. 1) on theRole ofNationalParliaments in the European Union, Arts1-2. 46 Ibidem,Art.4.
47 Auel,DemocraticAccountability andNationalParliaments:Redefining theImpact ofParlia mentary Scrutiny in EUAffairs,“EuropeanLaw Journal”2007, vol. 13, 487,p. 498.
Somehave argued in the early years ofEuropean integration that legitimacy could be ensured simplythrough the gains which technocracy secured42. It is true that the
Commission is freefrom political pressure fromvoters, enablingitto fulfil its role in the bestpossible way,without having to engage in mistakenpolicies just to please vot
ers. However atthe same time it may act against theinterests of EU citizensin the ab sence of direct democratic control. The 1999 corruption scandal shows that the
Commission indeed needs to be closely scrutinised. So it is submitted here that while there are benefits from having anexpertled body in the EU, the Commissionwill con
tinue to contribute to the democratic deficitof theUnion and its nature will make it harder to legitimate the EU inthe eyesof the peoples of Europe.
3.3.NationalParliaments
Member State Parliamentsnow haveanincreased role in European law-making and they can directly take part in it in accordancewith the procedure inArt. 12 TEU. They
can no longer be regarded as merenational institutions, but must also be construed as institutions of theUnion43. Theirinvolvement had been identified as an issue by the White Paper, which now seems to have beenput intoeffect44. First of all they have
arole in being consulted and documents and draft legislative acts mustbeforwarded to them45. Aneight-weekperiodis given for them to consider these, before they canbe
placed on the provisional agenda of the Council46. EU nationalstend to be moreclosely
connected to theirhome country’sparliaments sothis should enable themmore influ
ence overEU legislation. National parliaments canthereforeprovide amajor source of
public debate onimportant European issues47. This procedure contributes to ensuring
thatEuropean politics is brought closer to the people.
It is also importantto ensure thatthe Union institutions comply with the principle of subsidiarity wherebydecisions are takenas closelyto the citizen aspossible,meaning
104 Dmytro Volodin RIE5’11
that the EU should only act if theobjectives of the actioncannotbe achieved by the
Member States48. The national legislatorscan nowoversee this under theprocedurein ProtocolNo. 249. Art. 5obliges that draftactscontain detailed reasons regarding their
compatibility withtheprinciples. If parliaments are still notsatisfied, under Arts 7(2) and 7(3) they can issue a“yellowcard” through reasoned opinion by one third of na tional parliamentsregardingnon-complianceof theact, or an “orange card” bya simple majority.These seem to makenationallegislators quite powerful in the process.There are twoissues to consider. Firstofall theseprocedures may be regarded as purely nomi
nal, sinceifthereis so much opposition from MemberStates it is very difficult to get the necessary qualified majority in the Council anyway50. Secondly will parliamentsactu
allyusethesepowers? Auel observed that they evenrarelymakeuse oftheir formal rights toinfluence theirhomegovernment’s vote in theCouncil51. While the opposition
may be ableto take partin the debate,they usually havetogo with the governing major ity’s position. Thiscould well meanthat nationalparliaments will onlyoppose mea
sures when nationalrepresentatives also oppose it in the Council.
48 Art.5(3) TEU.
49 Protocol(No. 2) on the Application of thePrinciples of Subsidiarity andProportionality. 50 Chalmers et al, p. 129-131.
51 Auel,p. 493, especiallydue to the fact that governing partiesoftenhavea majority in Parlia ment.
52 Chalmers et al, p. 100.
53 For detailssee: Chalmers et al,p.l 17-125; and Decision1999/468/EC [1999]OJ L 184/23 as amended by Decision 2006/512/EC [2006] OJ L 200/11.
54 Hofmann,Legislation, Delegation and Implementation underthe Treaty of Lisbon: Typology Meets Reality, “European Law Journal” 2009, vol. 15, 482, p. 499.
55 Decision1999/468/EC Art 5a (insertedafteramendment).
The way in which theseprocedurescan nevertheless contributeto securing democ racy is through public debate atthe national level. People shouldbe able to havetheir
say at national forums about European issues in their countries, whichwouldthenbe transmitted to the EU legislature. At the moment thereis a big question mark as tohow
thiswill turn outin practice. There is a danger thatthere will me ‘morevotes’in discuss ing domesticissues such as tax, health care and education and there will continue to be a lackof interestin areas of EU competence.
3.4. Other legislative procedures
Itmustbementioned that there arecertain procedures oflegislation that allowthe democratic institutions to be effectivelybypassed. Art. 290 TFEU allows legislative
powers to be delegated tothe Commission, or legislative acts can confer implementing
powerson theCommission (or the Council in some cases) under Art. 291 TFEU. Ac
cording to Chalmers et al. 69 percentof Regulations are in theform ofdelegatedlegis lation52. These aremade behind closed doors, without public scrutiny, through the
procedureknown as comitology53. The Parliamenthas gained very limitedrights in the
procedure as pointed out by Hofmann54, althoughitcannowoppose certain measures withinthe “regulatory procedurewith scrutiny”55 since 2006.
These seem problematic on the face of it,butitis submitted thattheydo not infact
call into question thedemocratic nature of theEU. Delegatedlegislation isvery widely used at national level such as statutoryinstrumentsin theUK. Art. 290 TFEU only al lowsdelegation ‘tosupplementoramend certain non-essential elements of legislative acts’meaning that themost important legislationwill stillbe subject to the standard
procedures. Should thesebeabused, the Parliament ortheCouncilcan always revoke the delegation underArt. 290(2),reasserting democratic control inthe process. Even though these procedures may be less democratic,they are necessary for the efficient
functioning of the EU and thebetter allocationof resources.
3.5.Processes of participatory democracy
As we haveseen,Art. 10(3)TEU refers to citizens’ right to participate in the demo
cratic life of the Union. These are securedthrough the opennessof procedures and are also very much essential to ensure thedemocratic functioning of theEU institutions. The CJEU stated that “openness contributes to conferring greater legitimacy on thein
stitutions inthe eyes ofEuropean citizensand increasing theirconfidence in them”56. There are severalmanifestations of these in theTreaty also. Art. 11 TEU introducesthe ‘citizens’initiative’ as discussed above in section 2.3.Art. 15 TFEU encouragespartici
pation of civil society and itsparagraph 3 gives EUcitizens a right of access to docu ments57 58.Further, Art.296TFEU paragraph2 states thatlegal acts must state the reasons on which theyarebased.Thesemust be adequate so that the persons concerned can as certain thereasons for the measure and the competent court can exerciseits power of
58
56 Joined Cases C-39/05P and52/05 S'Sweden and Turcov Council [2008] ECR1-4723, para 59. 57 Thisis regulated in detailby Regulation 1049/2001 regarding public access to European Parlia ment, Council andCommission documents [2001] OJ L 145/43.
58 CaseC-l 13/00Spain v Commission[2002] ECR 1-7601, para 47.
59 Case C-377/98Netherlands v Council(Biotechnology Directive) [2001] 1-7079 and Case 233/94 Germany vCouncil (DepositGuaranteeDirective)[1997] 1-2405.
60 Ibidem, Biotechnology Directivecase, para 32.
61 Supra, note64,Deposit GuaranteeDirective case,para 28. 62 Supra, note 61.
63 Case T-42/05 Williams vCommission [2008] ECR 11-156. review .
There has been somedoubtas to the strength of these provisions and individuals’
ability to seek judicial review against legislation.Theargumentbased on aviolation of
the duty to state reasons failedboth in theBiotechnology Directiveand theDeposit GuaranteeDirective cases59. Itwas held thatfor the application of subsidiarity it was
sufficient to state thatthescope of the protection provided by theDirective has effect on
[intra-Union] trade60and thateven no express reference to subsidiarity wasrequired61. In fact itis important to state that until now there has notbeena case which failedon the
principleof subsidiarity, which calls into question thestrength of judicialprotection. Onthe other hand cases regarding refusals to access to documentshave succeeded
106 Dmytro Volodin RIE5’11
factprepared to scrutinise institutional decisions on the request of individuals, fulfilling
the purpose of opennessasset outin Recital 2 ofRegulation 1049/200164. These demo
cratic featuresof the Union will contribute to the legitimacy of the integrationprocess
which will be the focusof thenext section.
64 Supra, note 62. 65 Supra, note15,p. 3-4. 66 Ibidem.
67 Bredt, supranote33, p. 40. 68 Gauweiler, para262.
69 Art 50TEU; discussedinGauweiler para 329.
70 WhitePaper,p. 5. 71 Ibidem, p. 21.
4.Thelegitimacy ofthe EU
Wehave discussed the features ofEU democracy andsaw that theEuropeanParlia ment now plays a significantpart in most EU law-making with nationalparliaments also been givensome involvement in theprocesslately. These are complementedwith
the range ofpossibilitiesfor citizens to get information about theEU andparticipate in its procedures. But are these enough to legitimatethe Europeanintegration process?
Amull distinguishes two typesof legitimacy: formal and sociallegitimacy65. The
powersto theEU have beenvoluntarily transferred and the treaties have been freely en tered into by states,sotheformer is difficultto call into question. But social legitimacy entails that theallocation and exercise of authoritycommandsgeneral acceptance66. In
section 2we have established that the EU is a different entity from a nation-state, al
though itnow has a number of state-like features. Commentators have also observed
that sincetheEU hasvery different institutions from national governments itwould be difficultto have the same idea ofrepresentativedemocracyfor it67.Even theGerman Constitutional Courtconcluded that as long as the principleofconferralis adhered to in the EU, the legitimation provided by national parliaments and governments comple
mented and sustained by the directlyelected EP issufficient in principle68. So evenif the EU is nota complete representative democracy, at least if judged by nation-state standards, it can still be legitimate together withthe integrationprocess. Afterallitwas the nationalparliaments which gave consent to theircountries joining theEU(together with citizens through referenda). Theystillremainincontrol of the states’ EU member ship as now withdrawal fromthe Union is expresslypermitted69.
So wheredoes theproblem lie then? The hostileattitudeof some segments of the
European public is still visible nowadays, for example through therecent failed refer enda. One possible solution to the question maybe that the publicstill does notknow
much about theEU. This was identified a decade ago by theWhite Paper allegingthat
Member States didnotcommunicatewell about whattheEU wasdoingand manypeo
ple did not know the difference between the institutions70. In addition people still thought of EU rulesasforeign laws71. In this respect therole of the mediaand the press
people are unlikely to look atEU specific portals online anditishard to find many re
ports on theEUagenda in ordinarynewspapers’ front pages.At anational level, in the UK for example,pure domesticissues such ashealth care, tax,education, tuition fees, budget cuts, together withforeignconflicts and natural disasters continuetodominate the politicalagenda.
Another issuediscussed by Weiler is thatthat there is still no European 'demos ’72,
includingafeeling of‘being European’. There are only “peoples” of Europe as opposed
to “people” and they are reluctantto take part in European democratic life. This is clearly linked to the lack of popular understanding of the integrationprocess. In the
1950sthedesire for peace, unity and economic rebuilding provided a clear rationale73.
Now theprocessis a lotmore complex. Europeans need tounderstandita lot betterin order to feel part of the same political community.
72 Weiler, The Constitutionof Europe, supranote34, p. 269.
73 De Burca, The Quest for Legitimacy in the European Union,“Modem Law Review” 1996, vol.59, 349, p. 373.
74 Kiiver, GermanParticipationin EU Decision-Makingafter the Lisbon Case: A Comparative View on Parliamentary Clearance Procedures, “GermanLaw Journal” 2009, vol. 10,1287, p. 1291.
75 Bredt, supranote33, p. 38.
Finally thelevel of mistrust of the GermanConstitutional Court is striking inthe
Gauweilerjudgment. TheGerman Court does not trust that theinstitutions will keepan appropriate checkoneach other to see if they are actingultravires’4. However it would beessential in a democratic systemthat theinstitutions are trusted by the public and na tional authorities, only then can they all see theprocess as fully legitimate.
5. Conclusion
It has been said that the EU now approaches a polity of atraditional representative democracy after the European Parliament’s significant increase ofpowers75. While this
iscertainly true,theinter-governmental elementcan still be very strongly felt through
the role of theCouncil. It mustberecalled that the expert-ledEuropean Commissionis still very powerfulafter Lisbon and such an institution is not present in traditional de
mocracies. New arrangements have beenmade for citizen participationand national
parliamentaryoversightof EU processes, butthese are still considered to be weak. Whilethefoundations ofdemocracy arenow presentat EU-levelto someextent,these
still donot actually makethe EU afull representativedemocracy.
It has been arguedthat due to the nature of the EU, this findingdoes not meanthat the EUand the integration process cannot be legitimatedin the eyesofcitizens. The changes by thenewtreaties have increasedthe possibilities to havetheir say in Euro pean politics. What isneededis better information aboutthe nature of the EU, the bene
fits ofintegration and thework of the institutions. Both thegovernmentsand the media shouldtakepart in communicating effectively thedemocratic qualities of theUnion. Only thencana common European political culture beformed and only then will popu lar acceptance of the EU be increased acrossthe 27-nation entity.
108 Dmytro Volodin RIE5’11
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http://www.europarl.europa.eu/parliament/archive/elections2009/en/tumout_en.html. http://boundarycommissionforengland.independent.gov.uk/east-midlands/.
Summary
How to legitimate the European Union
andthe integration process: EUgovernance approach
This articleaddressesand respondsto the question of changes in the European Union gover nance andhow wecan legitimate the process of European integrationaccordingto internal facili ties. Some of the main conclusions refer to thelackofinstitutions capableof performingtheir functions as well as thekeyelementsfor achieving possible changes towards democracy.