A democratic deficit? The EU Institutions

'Democratic deficit' is the term used by those who consider the EU institutions and their decision-making processes suffer from a lack of democracy and seem inaccessible to the ordinary citizen due to their unnecessary complexity. The Institutions of the EU consists of the European Parliament, the European Commission, the Council and the Courts of Justice of the EU (CJEU). Article 13(2) TEU provides that each institution "shall act within the limits of the powers conferred upon upon it in the Treaties, and in conformity with the procedure, conditions and objectives set out in them," which is an indication that a form of separation of powers operates at EU level, and each institutions is required to keep to its own jurisdiction. The Parliament, Council and Commission are further assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity. I will take each institution separately and discuss their legislative function in order to assess the assertion by many academics that a democratic deficit exists within the EU.

The Commission

The Commission acts as the 'watchdog' or 'guardian' of the European Treaties and is the executive arm of the EU. The Commission consists of commissioners who are appointed by national governments as a permanent bureaucracy in Brussels. The Commission is considered the most powerful and influential institution in the EU due to its role in legislating and enforcement of EU law. Article 17(1) provides the role of the Commission as promoting the general interest of the EU, which takes supremacy over national law of member states. Though the Commission is a single body, it is composed of three tiers following the introduction of the Lisbon Treaty: 1. The Directorate-General, 2. The College of Commissioners and 3. The Cabinets. The Commission is primarily responsible for the daily business of the EU and negotiates international agreements on behalf of the EU and it is considered the most federal of the EU institutions. Foster considers the Commission is "regarded as the most supranational institution of the EU, due largely to its independence from direct national influence." The Commissioners are completely independent and cannot take instructions from national governments. When a Commissioner breaches the conduct required by the Commission, she may be compulsorily retired or deprived of her pension. This was demonstrated in the case of Cresson [2005], when a French Commissioner hired her dentist as her personal advisor despite the fact that the dentist was not adequately qualified. Though not imposing a penalty on the Commissioner, the Court held that Commissioners' duties are to ensure the general interests of the EU take precedent over all other national or domestic interests. In this case, the Commissioners actions were not of a high enough 'degree of gravity' despite the conduct being 'manifestly inappropriate' and in breach of Article 245.

As per Article 294, the Commission is responsible for initiating all EU legal measures and though the Council has the ultimate power to pass most EU laws, the Council is unable to act without a proposal from the Commission. What this does in effect, is it allows the Commission to be involved in every step of the ordinary legislative process as a debate facilitator between the Parliament and Council. The Commission is not a co-legislator (like the Parliament and Council) however it still plays a seminal role in the legislative process in terms of initiation, consultation on major negotiations and changes. In certain and very limited circumstances, the Commission is given power to legislate without implementing acts as per Article 106(3), in the role of state in relation to public undertakings as well as under Article 45(3), involving the rights of workers to remain in member states following employment there. As the 'guardian of the Treaties,' the Commission is able to enact delegated legislation where powers over certain areas have been delegated to it as governed by Article 290 TFEU. Further, a legislative act may delegate non-legislative functions to the Commission to amend non-essential elements of the legislative act. This accounts for the greatest proportion of legislation passed by the EU.

The European Parliament

The role of the Parliament is set out in the Treaties under Article 14 TEU and Article 223-234 TFEU. The role of Parliament is much more limited than the role of most national parliaments and it is not the principle legislative body of the EU, which is the Commission. Despite this, it is the only directly democratically elected institution and body in the EU, despite it being the least influential. This has highlighted a 'democratic deficit' within the EU. In the founding Treaties, the Parliament was described as having a 'advisory and supervisory' role within the EU institutions however overtime, and especially since the introduction of the Lisbon Treaty, the Parliament has acquired more substantial powers most notably in respect of its legislative and budgetary functions. Historically, the Parliament's power was confined to the nomination of members to the Commission and passing of annual budge of the Community. The Roquetter Freres decision confirmed the growing advisory role of the Parliament and its necessary enforcement. In the case Roquetter Freres v Council, the Court ruled that an act must be consulted by the Parliament or it will construed as illegal and can be annulled by the European Courts of Justice. Further, the Single European Act ensured the views of Parliament were taking into account during legislative procedures as it introduced the co-decision legislative procedure.

Co-decision procedure/Ordinary legislative procedure

The procedure enabled Parliament to enact certain legislation with the Commission and the Council in attempts to address increasing concerns and criticism over the 'democratic deficit' of the union. Following the Lisbon Treaty, the ordinary legislative procedure placed the Parliament in the position of co-legislator with the Council and the co-operation between the two institutions acts as the beginning of the enhanced legislative role of the Parliament as it obliges the Council to take into consideration the amendments stated by the Parliament to proposed legislation. The Parliament can essentially veto legislation as a result of the OLS procedure. The ordinary legislative procedure is outlined by Article 294. As a result of OLS, Parliament has the power to make changes to proposals for laws at three different stages as well as entering into negotiations with other law-making institutions in order to get a consensus on legislation and retain the power to block legislation at each legislative reading, including the final reading. The increase of Parliament's legislative powers from the founding Treaties to the Treaty of Lisbon is seen as a shift away from inter-governmentalism and a move towards supranationalism in the EU political system.

The Council

The Council is governed by Article 16 TEU and Articles 237-243 TFEU and acts as the main legislative body of all the EU institutions as it is the forum in which national governments are represented at EU level. That being said, the Council remains dependent on Commission proposals. The Council consists of a ministerial representative of the government of each member state who is authorised to take decisions on behalf of that member state. The Council can delegate powers to the Commission to implement non-binding regulations which are supplementary to legislative measures passed by the Council. The Council votes by qualified majority on several issues as enshrined by the Treaty of Amsterdam and later expanded by the Lisbon Treaty. The Council represents member states' interest and works at both the political and working levels. As embedded in the Treaties, the Council has the final legislative decision making in many areas. The areas of the Council's competence area: 1. budgetary powers; 2. external policy; 3. common, foreign and security policy and; 4. appointments.

The European Courts of Justice

The ECJ is outlined by Article 19 which consists of the Court of Justice, General Court and specialised courts. The treaties assign three principle areas of jurisdictions to the court and together, the courts encompass the judicial branch of the European Union. Article 19(1) states that "in the interpretation and application of the Treaties, the law is observed." As such, the ECJ is primarily responsible for ensuring the effectiveness of EU law and its integration into national law and EU law must be provided for consistently within national law.

The function of the ECJ is that is must hear proceedings initiated by the Commission under Article 258 to enforce compliance by a member state of union law, for example, for failure to implement a directive or to comply with the Treaties. Article 259 allows a member state to bring an action of non-compliance against another member state. Further, Article 263 allows the court to review the legality of acts of the Council, Commission and Parliament under a complaint made by a member state. Moreover, under Article 267, a member state can seek a preliminary ruling from the ECJ relating to an interpretation of the treaties, directives or regulations.

The judiciary of the EU consists of 27 judges (one from each member state) and the court sits as 3, 5 or 13 judges. The Advocate General is required to give his opinion where the case raises a new point of law however the courts are not obliged to follow his decision (they usually do). Gerard Hogan is Ireland's most recent appointee.

General court - the general court hears first instance actions. The Lisbon Treaty expanded the General Court's jurisdiction in to allow points of law to be appealed to the ECJ. The court has to apply EU law as well as developing 'general principles' such as proportionality and transparency, as well as doctrines such as direct effect and supremacy. As such, the court is interventionist in nature. In the case of Gauweiler [2015], a number of German politicians decided to challenge the OMT Programme which allows the ECB to purchase government bonds on secondary markets. The issue here was that that it makes the ECB a 'lender of last resort' which is outside its competence. The Court rejected this claim and stated that the ECB has broad discretion in framing monetary policies and national courts should be slow in question that considering the level of expertise of the ECB which is not present in national courts. The interventionist approach by the court may indicate a lack of agreement among politicians to progress the union which leaves it to the Commission and Court to facilitate reform.

Concluding thoughts

Despite the increased legislative power to amend or reject proposals from various treaties by the Parliament, the only democratically elected institution, Parliament remains the least legislative power of all the institutions mentioned above, which is known as the 'democratic deficit.' This is due to the legislative process being dominated by the Council and Commission. The institutions are also deemed by many, such as individual citizens of member states, as being too complex with a lack of transparency due to the amount of committees employed and lengthy timescales, all of which occurs behind close doors. This is known as 'comitology.' The ECJ is not democratically elected, yet it is vested with the only power to consider the constitutionality of Community legislation. The White Paper on Governance [2001] by the Commission has recommended a 'community method' in order to ameliorate the democratic deficit of the EU. In its recommendation, the White Paper proposed that the legislature of the EU would be a fusion of the European Parliament and Council with the Commission acting as guardian of the Treaties. This has since been materialised by the Lisbon Treaty. Moving beyond the internal democratic deficit between EU institutions, the real democratic deficit is perhaps the absence of European politics as EU voters do not feel represented or that they have an effective way to reject a 'government' as the current form of the EU is that their is no 'government' per say. Though public opinion is pro-European, perhaps intensified in Ireland as a result of the ongoing issues relating to Brexit, a tension remains where citizens do not understand the political systems that sometimes appears to threaten their way of life in the member state. This dissatisfaction has been expressed in the low turnout of European elections which reached an all-time low in 2009, with an EU average of just 43% (Porchez, 2018). Azman (2011) argues that "The transfer of political decisions and allocations from the national to the European level has weakened democratic influence and control at the national level without having been compensated by equally strong democratic institutions and processes at the European level” while Vauchez (2016) warns against comparing European democracy to a national democracy.