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Title: Despite significant advances under the Treaty of Lisbon the EU remains an undemocratic body
Introduction
The treaty of Lisbon contains numerous elements that were aimed at democratizing the European Union in terms of the way it functions. The treaty defines the democratic foundations on which the Union was established. In these foundations, three main principles were outlined: representative democracy, democratic equality, and participatory democracy. These foundations give national parliament the space to operate alongside the institutions of the EU. In this treaty, the rights to mechanisms of policy evaluation, information, and procedures for reforms of treaties are outlined. However, despite the significant advances that were brought about by the Treaty of Lisbon, the EU remains an undemocratic body.
This paper outlines the contribution of the Treaty of Lisbon to the democratization process in the EU. The essay begins by a presenting the criticisms to the EU with regard to lack of democracy, and then zeros down on the case of Germany. It then explores the provisions of the Treaty of Lisbon on democracy, with evidence from Poland and Czech Republic being presented. The disagreements on the democratic nature of the Treaty of Lisbon are discussed. From an institutional perspective, a discussion is presented on the provisions of the Lisbon Treaty and the democratic deficit that has persisted with regard to the Council of the European Union, the EU Commission, and the oversight role of national parliaments.
Criticisms regarding lack of democracy in the EU
The Treaty of Lisbon has been credited with introduction of the initiative of inviting citizens so that they can participate in the Union’s policies. This contribution led to the so-called citizen’s initiative. In this initiative, millions of citizens from various member countries have been able to request the European Commission to make a proposal presentation on any of the areas of responsibility of the EU[1]. In this initiative, the voluntary nature of the process of integration has been emphasized. Moreover, the possibility of withdrawal from the EU by any member state has been explicitly recognized.
The integration process within various European countries exemplifies an ongoing search for a lasting compromise in terms of all the concepts that each member state stands for. These concepts are normally explicitly expressed, first and foremost, through the scholars of the member countries. In the 21st century, there were two main trends, the first one being enlargement activities that brought on board countries of East-Central Europe, and the second one being the impossibility of undertaking reforms founded on increased cooperation among member states.
There are many efforts that pass for democratic, reformatory efforts with regard to the European Union. The treaty that established the constitution of Europe was soon followed by a new international agreement that replaced most of the law acts that had earlier on been put in place. However, the changes were not implemented because of rejection by Dutch and French citizens, during the 2005 referendum[2].
The second major effort at reformation was the Treaty of Lisbon. Unfortunately, this treaty failed to change the hybrid nature of the EU as had been envisaged, thereby failing to democratize the system. The lack of democracy is inherent in the way inter-governmental practices continue to dominate the way the union operates. In essence, the lack of democracy, which has been a major problem in the EU, has not been remedied satisfactorily.
The system of governance that was created by the treaty that led to the formation of the EU is very complicated. The process of making internal decisions is undoubtedly a very long one. To assess this phenomenon from a critical perspective, it is necessary to start by assessing the member states play in the EU’s governance, also known as the integration approach. Secondly, it important to assess the democratic approach, which entails characterization of governance structures from the viewpoint of democratic principles.
The role of member states in the EU is closely related with the very reason that the goal of European integration was pursued after the World War II. At this time, the interests of certain states converged, and a tendency towards closer cooperation constituted the early stages of the EU integration. Economic interest was a core part of the convergence of these interests. Moreover, the prevailing conditions inside individual states greatly influenced the decisions that were adopted. The evolutionary integration process finally led to the EU as a political union that we know today. From this perspective, the role of international secretariats as well as Union courts are perceived as carrying out activities in fulfillment of the long-standing decisions that the member states made earlier on.
The relative bargaining power of governments of member states create conditions of cooperation from an international platform. It also creates institutionalization and creation of rules. Instead of giving up all their sovereignty, member states delegate certain elements to the supranational entity for purposes of improving the entity’s level of efficiency. In spite of the Treaty of Lisbon having been enforced, a key role in efforts to deepen integration is played by governments of the governments that are considered the most important. The institutions and officials of the Union come in to take the second position in terms of participation.
This state-centered approach cannot be said to constitute the acceptance of realism as an international relations theory in the EU context. It is simply an inter-governmental approach that fails to pay attention to the internal connections that link the state to the individual or society. In democratic settings, the behavior of a state in international politics ought to derive from interactions in the internal context. Interests, ideas, and social institutions play a key role in shaping the actions of a state and shaping its core social objectives and preferences. These objectives, in turn, create a basis for governments’ strategic plans. In the inter-governmental approach, integration is perceived as being an outcome of bargaining at the international level, within the main actors being the governments that are in possession of many ideas and information.
The decisive role of countries’ national interests is easily noticeable as shaping EU’s institutional structure. At each stage of the decision-making, independent institutions are seen to play a minor role. This is largely because their competencies are largely a derivative of the will expressed by member states. The states only express their will to the Union level only when they are not able to control the way international obligations are observed themselves. Indeed, there are many instances when states delegate powers when future decisions are in great doubt, when there are high benefits to be derived by implementing agreements, and when the costs of delegation appear to be worthwhile. The Treaty of Lisbon helped create a hybrid system of sorts as opposed to a democratic system, particularly if one considers the way institutional solutions are handled. After all, in European law, power is derived after all treaties that contain a connection with the assenting act of all parliaments have been ratified. This requirement makes the EU to look like an association between states.
The problem of democratic deficit as a feature of the EU’s governance structure has been discussed in great detail in literature. This democratic deficit manifests itself through the limited influence of the people to whom EU’s decisions are addressed. In essence, the addressees of these decisions are accorded limited influence, such that they may at times not relate at all with these decisions, yet they lack the capacity to influence changes. This lack of democracy exists because the center of decision making has been moved from the state level to the Union level, yet no supplementary mechanism has been created that offers citizens the power to participate and exert control over the Union’s institutions. The efforts by the Treaty of Lisbon to integrate state system into EU systems have not succeeded in making the EU democratic.
The lack of democracy at the EU manifests itself at two levels: the level of member states and the European Union level[3]. At the EU level, lack of participation is one of the ways in which the deficit manifests itself. Moreover, when powers are apportioned among too many EU institutions, the element of democracy becomes eroded. Moreover, since there is a preference for organs that are erected without direct participation from the citizens, people cannot help but notice the glaring undemocratic nature of the European body.
In terms of democracy in participation, the fact of the matter is that active involvement and influence by 500 million citizens from 27 states is not a practical possibility[4]. With such a demographic situation, it is not possible for the citizens of these states to get into a productive political discourse. The problem of participation continues to exist mainly because too many state functions have been transferred to the European Union. This derives member states of the power to provide control and regulation in certain areas, which are therefore left uncontrolled. Through this important omission, the Treaty Lisbon failed to transform the EU into a democratic body. This undemocratic nature becomes even more problematic considering that in the present circumstances there is a lot of cross-border interactions because of globalization.
Yet the Treaty of Lisbon, which was signed by the 27 member state heads in 2007 was supposed to increase the level of democracy in the EU[5]. One of the ways in which this treaty sought to do this was by considerably increasing the powers of the European Parliament. The Ordinary Legislative Procedure, for instance, replaced the Co-decision Procedure of the European Parliament and the EU Council[6]. Additionally, it was extended into new fields, notably home affairs, justice, agriculture, EU budget, and common trade. Thus, today’s parliament additionally performs the lower chamber’s functions, whereby it represents the Union’s citizens. The Council, on the other hand, performs more or less like a Senate, by providing representation to member state governments. Now, the Council and the Parliament possess equal powers with regard to the budget, which is now known as the Union Budget and not Budget of European Communities. Moreover, in all international agreements relating to ordinary legislative procedure, the assent of the parliament is required.
However, regarding political participation and freedom of influence in the decision-making process, many arguments can be conceived that elaborate the reasons why there is a lack of democracy in the EU. For one, political accountability of the European Commission, which is the EU’s main administrative institution, is indirect. Moreover, the EU parliament still appears to have a weak political role, yet this is the only EU’s institution that has a political background that is a derivative of elections. Also, there is a deficiency of intermediary institutions, such as EU political parties, media, and associations[7]. There is also a lack of coherence between initiative and legislation. This scenario creates institutional tensions instead of political tensions, thereby weakening democracy. From a wider-scale perspective, the integration process is problematic.
In the 2001 Declaration of the Laeken European Council, Europe was declared to be encountering a democratic challenge[8]. It was observed that there was need for an increase in the level of democracy, transparency, and efficiency. When considering that these were the very goals that the 1992 Treaty on European Union sought to achieve, it was intriguing that within a decade, little appeared to have taken place. Pundits have been expressing the fear that the same thing may happen in the case of the Treaty of Lisbon. Since one of the fundamental aims of the 2007 treaty was to bring about democracy in the EU, a lot of attention has been on the question of whether the EU is becoming more democratic or not.
In the Laeken Declaration, the research agenda was described as consisting of question of the possibility of increasing democratic legitimacy within the EU. It also dwelt on the choice of initiatives aimed at bringing the institutions of the EU much closer to the European citizens. The answer to these questions came in the form of the Treaty for the Establishment of a Constitution for Europe (TCE). Since this treaty came into place, considerable amendments have been made to the original draft. The changes to this draft were signed by the then 25 EU member states in 2004.
Many pundits argue that the problems with the Treaty of Lisbon with regard to the democratization process are largely caused by the TCE[9]. They argue that the form that the TCE took was such that it could not solve the prevailing issues of democratic legitimacy that existed in the EU. This realization was arrived at upon a normative institutional analysis of the key reforms that were made under the TCE.
The case of Germany
In Germany, criticism of the Treaty of Lisbon has tended to come mainly from Leftist parties. These parties have been advancing the argument that the Treaty of Lisbon is non-liberal, undemocratic, and militaristic[10]. One of these parties, the Christian Social Union, has moved on to say that it is not compatible with the German Basic Law. These challenges have even ended up in the Federal Constitutional Court (FCC)[11]. The implication of this move was that the President of the Republic was barred from signing off the treaty, in spite of the fact that parliament approved the treaty with an overwhelming majority[12].
In 2009, the FCC expressed itself regarding the Lisbon ruling. The main issues that were touched on in the ruling include EU as a confederation, reasons why the relationship between democracy and federalism is tense in the EU, and the illegitimacy of development towards the creation of a federal state[13]. The focus of the ruling was on the claim that the EU lacked the legitimate mandate to become a full-fledged federation without calling upon the constituent power of all the German citizens. Indeed, the ruling emphasized on the existence of the issue of jurisdictional competence attribution and its effect on democracy. The issue of the EU’s core competence with regard to the principle of essentiality was also discussed[14]. In the German ruling, it also emerged that the theory of democracy that is embraced in the German constitutional court may differ from the one adopted in the courts of other European countries. According to the theory of democracy as applied in the Germany’s federal constitutional court, democratic legitimacy is a derivative of the interconnection between the actions taken by various European governmental entities on the one hand and the Member states’ parliaments on the other[15].
Provisions of the Treaty of Lisbon on Democracy: Evidence from Poland and Czech Republic
One of the most notable things about the Lisbon Treaty’s democratic principles is the way it avoids the constitutional foundations of the EU[16]. However, the strategies adopted in it to strengthen democratic legitimacy are more or less similar to those adopted in the Constitution for Europe (TCE). By and large, the democratization strategies are modeled around citizen participation and an organized civil society in the process of European governance. The tenets of participatory democracy and rules of civil dialogue and external consultations are more or less similar to those of the Constitution for Europe[17].
The provisions on democratic principles that are enumerated in the Lisbon Treaty appeared to be clearly aimed at integrating all the EU’s democratic credentials[18]. These principles, by their very nature, appear to constitute an intricate model that blends many interrelated principles, key among them representation, political equality, openness, participation, and transparency. The combination, though, appears to be an uneasy one; one that leads to the impression that EU is an undemocratic body. The uneasy model seems to take the form of a coalescence of various models and inputs, which make up a chaotic structure upon which it is not easy to have checks and balances.
Such a chaotic structure has not escaped the notice of the Polish President, who, after the Irish referendum, argued that it was not wise to sign the Treaty that did not seem to have the potential to further the interests of Poland[19]. However, just like in the case of Germany, the Polish parliament had supported the signing of the Treaty. The only major difference was that there was no major opposition from the country’s parties. A similar move occurred in Czech Republic where the Irish referendum influenced President Klaus into stating that it was not prudent to let the ratification continue[20]. Moreover, just like in Germany, some senators belonging to one of the parties in the country’s ruling coalition went to the Constitutional Court to get an interpretation of the Treaty of Lisbon to determine its constitutionality. The court ruled that the Treaty was not unconstitutional. However, the opposition insisted that the court rules that no ratification-related decision would be made until February 2009, which it did.
Disagreements on the democratic nature of the Treaty of Lisbon
A state of continued disagreement has continued to exist regarding whether the Treaty of Lisbon was a victory for democracy in the EU or not[21]. Some people argued that it was a major breakthrough for the new political dynamics of the Europe while others viewed it as an undemocratic imposition of noxious policies and a super-state[22]. The disagreements, it seems arise because of the contradictory nature of the Treaty’s contents, particularly values and rights, institutional changes, external activity, and powers and policies[23]. The contradictory nature of the contents point to the fact that the treaty was conceived as yet another compromise document and not a master plan on how to build democratic institutions within the EU. The constructive ambiguity inherent in this Treaty may be attributed to the continued absence of a single power center, which leads to a legalistic supranational entity that is devoid of democratic principles.
Yet there is a conventionally made observation that a large body of EU administrative law has not been made by democratically elected EU bodies, in this case the European Parliament and the Council of Ministers. These administrative laws have been made by the European commission, which is an unelected body. For many legal observers, that factor, by itself, is not a sufficient ground for saying that the EU suffers from a democratic deficit. In many European democracies, it is possible for elected legislatures to amend the administrative laws long after their promulgation date. Yet the EU is openly different in that both the European Parliament and the Council of Ministers cannot change the administrative laws, even after the coming-into-effect of the Treaty of Lisbon. Millera refers to this fundamental weakness as a ‘design flaw’[24]. For many legal analysts, the design flaw is responsible for the democratic deficit. However, this is not where the disagreements arise; the main area of contention is on whether the provisions of the Lisbon Treaty have remedied this flaw. The question here has been on whether both the European Parliament and the Council have been sufficiently empowered to amend administrative laws. This question sometimes extends in scope to cover issues of direct participation by EU citizens, as provided for in the utopian conception of democracy[25].
For some critics of the undemocratic nature of the EU government, the main cause is viewed as foundational, whereby the issue of democracy was nowhere on the fore during the initial phase of EU integration[26]. Yet today, the notion of democracy is undoubtedly the most discussed issue in the Union. It is not surprising, therefore that in the Treaty of Lisbon, the issue of democracy, efficiency, and transparency took center stage. Although the discussions have intensified and credentials seemingly improved because of the recent referendums, little has been done in terms of practicalities. However, this is an issue for which there are conflicting views. Some people attribute the controversy to the comprehensive nature of the subject of democracy while others attribute it to unwillingness by EU countries to entrench democratic institutions, mainly because of conflicting interests. Indeed, the comprehensive nature of the subject on democracy has led to difficulties in drawing a line between novelties and practicalities. Issues such as institutional structure, fundamental rights, legislative procedures, and the principle of proportionality attract diversities in national interests. Even areas where there is consensus, some fundamental ambiguities emerge during the implementation process[27].
Democratic deficit in the Council of the European Union
The EU Council is the most powerful institution in the EU. It is the primary lawmaking entity, and for this reason, it is imperative to analyze it in terms of democratic legitimacy and the changes to it (if any) that were brought about by the Treaty of Lisbon[28]. In terms of composition, the Council members are members of various national governments that make up the EU. This creates a sense of democratic legitimacy, particularly with regard to the national elections that give rise to these members. However, there is no electoral connection of all European citizens and all Council members. In terms of the process of making decisions, the Council suffers two main democratic deficiencies. The first one relates to unanimity voting while the second one is about extreme distortions in the representation of citizens, that the ‘one-man-one-principle’ is violated. Whenever decisions need to be made in the Council, the normal procedure is unanimity[29]. This procedure is followed even on very critical issues, something that runs counter to the principles of democracy. In democracy, majority voting must be used in the place of the unanimity approach. In this respect, the aspect of consensual decision-making by the Union has been considered expressly undemocratic. Considering the inter-governmental nature of the EU, the principles of democracy are seen to be replaced with those of diplomacy.
Although the qualified majority rule is the most advocated-for method of decision-making, the Council normally resorts to using the general unanimity principle[30]. In this principle, the role of the EU Commission and the Parliament is normally very limited. In principle, the Treaty of Lisbon changed this situation a great deal, through the establishment of the ordinary legislative procedure, similar to the co-decision approach of the Treaty of Nice. In the Treaty of Lisbon, the Commission and the European parliament have been strengthened. This makes the Council weaker by comparison. Moreover, the Council is further weakened democratically by giving preference to the unanimity approach as a way of making agreement easier and quicker.
One of the areas where the principle of unanimity is being used all the time is on issues of security and foreign affairs[31]. These are important issues where the views of every national representative in the Council should be heard. In this regard, the Treaty of Lisbon appears to have done more to create a contradiction between unanimity and majority voting than to create a more democratic European Union. Moreover, the composition of the main institutions of the Council depends on the presence of every member state. This trend creates a scenario where the relative powers of EU states are unnecessarily given preeminence. Although each state is always ‘in’ and can exert direct influence on the final package, the real of states are first and foremost dependent on their bargaining power, and to a certain extent, their respective populations.
Democratic legitimacy of the EU Commission
The EU Commission is an independent body whose membership comprises of bureaucrats. The crucial role of the Commission is that it is the sole initiator of the process of decision-making in the EU. However, this body continues to be problematic with regard to democratic legitimacy even after the promulgation of the Treaty of Lisbon. With regard to the law-making procedures, the ‘comitology’ procedure is not widely known, and therefore its democratic legitimacy is in doubt. Moreover, there is inconsistency with regard to the way various types of committees are constituted. For the citizens who are influenced by the way these laws, the process of committee formation is not predictable.
Moreover, in the process of committee formation, the European Parliament is not actively involved[32]. Additionally, the parliament is normally not informed about the proceedings of the committees[33]. An analysis of the provisions of the Lisbon treaty shows that the mode of operation of the EU Commission creates a new kind of legislation known as deregulated regulation. Although this is an innovative element in the part of the Commission, the comitology procedures have not been completely substituted. Instead, a mere suggestion is made on an alternative framework for them. In the long run, these suggestions may have a positive influence on the way laws are made in the EU. Nevertheless, it is clear that although the Treaty creates an innovative provision, the transparency problem in the comitology proceedings has not and cannot be solved satisfactorily through the Lisbon Treaty.
The role of national parliaments
National parliaments play a critical role in relation to the activities of the European Union. Indeed, the work of national parliaments constitutes a core element of the debate on democratic legitimacy. The Treaty of Lisbon requires national parliaments to be extensively informed and more involved in efforts to enhance the Union’s democratic legitimacy. In the Treaty, the role of national parliaments comes in under the principle of subsidiarity[34]. In this regard, the Treaty offers a wider scope for participation alongside all other EU institutions in the Union’s work.
In Article 8c of the Treaty of Lisbon, the rights and duties of all national parliaments in the European Union are descried[35]. The article addresses issues of how to handle the issue of subsidiarity, the right to information, procedures for bringing about reforms in treaties, and the means of policy evaluation in areas of security, freedom, and justice. The article also defines how national parliaments ought to participate in inter-parliamentary cooperation within the framework of the European Parliament. In retrospect, it is the duty of the Commission to forward to national parliaments every consultative text as well as strategy programs, such that these parliaments are able to undertake their mandates as required for in the principle of subsidiarity.
In this article (8c), though, there is a very big novelty with regard to the ways in which the new power should be used in the enforcement of subsidiarity. Any national parliament has the power to flag EU proposal for an action that it believes is not in respect of the subsidiarity principle[36]. Moreover, there is a protocol according to which national parliaments have to be informed about the way EU institutions are functioning[37]. Other than the provisions of the protocol, the Treaty of Lisbon outlines the informal way through which the Commission informs the national parliaments regarding the activities of its institutions.
The process of informing national parliaments about the progress made by the Commission starts with the forwarding of consultation documents by the latter body[38]. Moreover, the annual legislative program as well as other relevant legislative plans or policies are handed over to national parliaments at this time. The national parliaments also receive draft legislative acts, and a copy is sent to the Council and the European Parliament. By ensuring that national parliaments are closely informed about the way the EU is legislatively functioning, the Commission brings them closer to the procedures of decision-making. In this whole exercise, the aim is normally to increase the national parliaments’ control over the way the principles of proportionality and subsidiarity are applied.
In the process of communication exchanges between the national parliaments and the Commission, each draft legislative act has to have a detailed opinion generated by the national parliaments[39]. The role of this detailed opinion is often to evaluate whether the draft has complied with the necessary democratic principles, especially that of subsidiarity. In the reasoned statement justifying the suitability of the draft legislative act for use in the EU, an assessment is made on its financial impact. In the case of directives, an assessment is always made on its implications on the rules that member states have laid down, include those relating to regional legislation. This creates an early warning system, whereby the national parliament is given 8 weeks to argue out its case in case it is of the opinion that the proposal goals against the objectives of the EU. Objection by a majority of national parliaments means that the proposal has to be withdrawn or amended. This early warning system offers national parliaments a very critical role in preventing the EU from overstepping its mandate through involvement in matters that are best given special consideration at local, national, or regional level[40]. However, these safeguards are still insufficient because the EU’s legislative process is inevitably too complex, such that regardless of the early warning signs given, national parliaments can at best play the role of co-supervisors in a very limited way.
Conclusion
In conclusion, although the treaty of Lisbon contains numerous elements that were aimed at democratizing the European Union in terms of the way it functions, elements of democratic deficit still remain. Although the Treaty of Lisbon defines the democratic foundations on which the Union was established, national parliaments of EU member states are at best accorded a co-supervisory role, particularly with regard to the law-making procedures of the EU Commission. The cases of Germany, Poland, and Czech, together with the role accorded to national parliaments with regard to the principle of subsidiarity, show that the EU remains an undemocratic body even with the advances made under the Treaty of Lisbon.
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[1] Richard Bellamya “Evaluating Union citizenship: belonging, rights and participation within the EU”, Citizenship Studies, 12, no. 6, (2008): 597-611.
[2] Ben Tonra “The 2009 Irish Referendum on the Lisbon Treaty”, Journal of Contemporary European Research, 5, no. 3, (2009): 472-479.
[3] Sieberson Stephen Dividing lines between the European Union & its member states: The impact of the treaty of Lisbon, Boston: Asser Press, 2009.
[4] Birgit Mahnkopf “Privatisation of public services in the EU: an attack on social cohesion and democracy”, Work Organisation, Labour and Globalisation, 2, no. 2, (2008): 72-84.
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[6] Anne Stie Co-decision – the panacea for EU democracy? Oslo: Center For European Studies, 2011.
[7] Herwig Hofmann “Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality”, European Law Journal, 15, no. 4, (2009): 482–505.
[8] Desmond Dinan “Institutions and Governance: A New Treaty, a Newly Elected Parliament and a New Commission”, Journal of Common Market Studies, 48, no. 1, (2010): 95–118.
[9] John O’Brennan “Ireland says No (again): the 12 June 2008 Referendum on the Lisbon Treaty”, Parliamentary Affairs, 62, no. 2, (2011): 258-277.
[10] Christine Reh “The Lisbon Treaty: De-Constitutionalizing the European Union?” Journal of Common Market Studies, 47, no. 3, (2009): 625–650.
[11] Maurizio Carbone “From Paris to Dublin: Domestic Politics and the Treaty of Lisbon”, JCER, 5, no. 1 (2009): 43-60.
[12] Erik Eriksen “Bringing European Democracy Back In—Or How to Read the German Constitutional Court’s Lisbon Treaty Ruling”, European Law Journal, 17, no. 2, (2011): 153–171.
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