The European Union’s
Democratic Deficit:
How to Fix It
JENS-PETER BONDE
On 1 December 2010 the Lisbon Treaty had been in operation for one year. The
new EU foreign affairs service is currently under construction. The EU has an unelected President for the European Council (the meetings of the Heads of State and
Government meetings), an unelected foreign minister, and an unelected Commission President. Together, they can travel the world and give lessons to others on the
importance of accountable and democratic government.
The Lisbon Treaty establishes the legal base for a new supranational European
State. Much EU legislation is already more centralized than legislation in the United
States. The EU itself, however, has weak tools of power: Its security service has only
620 policemen, while the FBI has 30,000. The EU has no federal prisons. There is
still no joint defense for the largest trading bloc in the world. However, all the instruments of state power can now be established on the basis of the Lisbon Treaty.
It is still the case that 56 Treaty articles require unanimity among the EU Member
States, but the main legislative procedure is now decision by qualified majority vote
among the Member States.
I shall set out here the main powers of the EU and consider how its democratic
deficit may be remedied.
When decisions and policy-making areas are moved from the member nationstates to the supranational European Union level, citizens lose the voting influence
they previously held at the national level, but are compensated somewhat by gaining
influence at the EU level. In what areas have voters lost influence? What have they
gained instead? Is the newfound influence at the EU level sufficient compensation
for what voters have lost? Andrew Moravcsik has argued that EU membership repJens-Peter Bonde is the Editor of euabc.com and Vice President of the Foundation for EU Democracy. He was
member of the European Parliament (1979–2008).
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resents a democratic gain overall, because, at the EU level, voters can have an impact
on areas where a small country alone would have little say or influence. 1
The Democratic Deficit
The greater part of the laws and regulations that bind the Danes and other Europeans come now from the EU. Are those laws and rules adopted as democratic as
the laws and rules that are made under Denmark’s own Constitution? For topics
for which Denmark on its own cannot adopt effective regulation, one can argue
that there is an effective gain supranationally because, at the EU level, Denmark
gains a limited influence in matters that it would not otherwise be able to affect
in the slightest. I have expressed this point often by saying: “Co-influence is better
than no-influence.” For issues that Denmark can legislate effectively at the national
level, however, a democratic deficit arises at the EU level if the policy area is shifted
there. The mode of decision-making at the EU level is not as democratic as that in
the Danish Constitution.
Peter Vesterdorf wrote in 1994: “The EU is deeply affecting the domestic politics
of countries. It often replaces national legislation and edges national parliaments out
of the game. This creates a serious democratic deficit that should be eliminated by
changing the EU’s decision making process.”2 The Brussels Commission acknowledged that there is a democratic deficit problem in the book European Governance.
In this work, senior Commission civil servants consider the absence of a common
political culture at European level and advocate openness, decentralization and
dialogue with citizens as a means of dealing with this problem.
The Lisbon Treaty confers 106 new competences on the EU, with 34 legislative
and 72 non-legislative. The draft Constitution for Europe which preceded it, but
which was rejected in the French and Dutch referendums in 2005, also conferred
106 new competences, with 33 legislative and 73 non-legislative. The Lisbon Treaty
increases the influence of the European Parliament in 19 areas at the expense of the
Council of Ministers. Insofar as the Parliament is a body elected by the EU’s citizens,
this can be regarded as democratic progress. In 49 new policy areas, power has been
moved from the National Parliaments, where voters have the last word in that they
directly elect the legislators, to the supranational EU level, where voters do not have
the same influence. The overall outcome, therefore, means a growing democratic
deficit. We confine ourselves here to outlining the general rule for adopting most
laws in the EU, the “ordinary legislative procedure,” which is set out in Article 294
of the Treaty on the Functioning of the European Union (TFEU), an article added
by the Lisbon Treaty.
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The Commission’s Monopoly on Legislative Initiative
The European Commission has a monopoly on legislative initiative in the EU. It
proposes the laws, which are then decided by the ordinary legislative procedure in
the Council of Ministers. The composition of the Commission is not a result of a
democratic election. Its members are nominated by national governments and only
approved by the European Parliament. Nowhere else in the democratic world is the
exclusive right to propose laws the prerogative of such a group of non-elected persons.
This “democratic deficit” can be corrected in two ways. The federalist solution is
to let the European Parliament elect the Commissioners, so that the Commission as
a body is accountable to it. An alternative solution would be to have Commissioners
directly elected in the Member States and/or to require them to be democratically
accountable to their respective national parliament for their votes in the Commission
and to the European Parliament for their management of their European portfolios.
This was proposed by a group of Euroskeptics in the Constitutional Convention,
which drew up the Treaty Establishing a Constitution for Europe, whose provisions
are now embodied in the Lisbon Treaty.
Since the appointment of José Manuel Barroso as President of the Commission in
2004, there have been no votes in Commission meetings. The President summarizes
what he regards as the Commission’s collective views. It is estimated that 98 percent
of what become Commission decisions are now decided outside the actual Commission meeting room on the top floor of the Berlaymont building in Brussels, or once
a month along with the European Parliament sessions in Strasbourg.
In 2008, the Commission adopted 269 proposals under oral proceedings, 3067
under written, 2227 by delegation, 4008 by sub-delegation, and 2125 in different
committees, under the system of committees overseeing delegated acts. Proposals
for EU laws are negotiated and prepared with the help of some 3000 secret Commission working groups that advise the Commission. As a general rule, neither National Parliaments nor the European Parliament have access to the agendas, working
documents, minutes or lists of participants in these working groups. When I was
a member of the European Parliament Commission, President Barroso promised
that he would create a database of all Commission advisers and consultants. This
database was partially established in 2009, but there is now a risk that the EU Court
of Justice will forbid publication of the relevant names.
Council Of Ministers Making EU Laws In Private
Under the ordinary legislative procedure, the Council of Ministers is required to
act in open session when it formally adopts EU laws. However, the real debate and
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negotiation on the great majority of those laws takes place in 300 secret Council
working groups and in the EU’s “real secret government,” COREPER, the Committee
of Permanent Representatives, which consists of the EU ambassadors from the 27
Member States and their deputies. It is estimated that some 70 percent of EU laws
are actually finalized in these working groups under the Council of Ministers, with
15 percent in COREPER itself and 15 percent at the actual meetings of Ministers in
the Council. Members of national parliaments and the European Parliament have
neither access to these meetings nor can they get information on the various proposals as they go through the stages of negotiation in the Council working groups.
Role Of The European Parliament
The European Parliament has increasing influence on the drafting of EU laws, but
it does not make laws in the same way as do National Parliaments. The European
Parliament debates a bill in committees and in plenary session on the basis of the
original proposal from the Commission, although its text may have been changed
many times in Commission and Council of Ministers sub-committees before it actually reaches the Parliament. The Parliament has no right to access documents dealing
with this prior legislative process and is heavily dependent on lobbyists and informal
contacts for any information relating to preliminary law proposals. The Parliament
can, however, influence the eventual outcome of legislation by tabling amendments
to the final proposal of the Commission and the “common positions” of the Council
of Ministers when these are formally put before it. If the Commission supports these
amendments, they have a good chance of being adopted. If not, they can be adopted
only if there is unanimous agreement in the Council of Ministers representing all 27
Member States. In practice, though, the majority of the Parliament’s amendments
tend to be adopted, although usually in some modified form.
The powerful position of the Commission, through its exclusive right to initiate and propose EU laws, affects all stages of the legislative process. The exception
is the Conciliation Committee under the so-called “third reading procedure.” In
this, representatives of the Parliament and the Council of Ministers can agree on a
compromise over some legislative amendment without the Commission. A proposal
from the Conciliation Committee must be adopted by a qualified majority vote on
the Council of Ministers and by a simple majority vote in the European Parliament.
If either the Council or the Parliament does not adopt the proposed amendment,
the entire legislative process must start again with a proposal emanating from the
Commission. It is only here, during this third reading, that a draft law requires a
positive decision by a simple majority of elected public representatives. In 2008 a
total of 1999 EU laws were adopted by the EU, of which only one required a third
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reading. In 2009 the figure was eight. To reach a third reading, the Parliament had to
propose amendments by an absolute majority of all its members in a second reading.
The real influence of MEPs can be much larger than the formal influence they
appear to have under this tortuous legislative procedure, but it is hidden and indirect.
It can be exercised by activists and interested MEPs when they lobby the Commission in the course of the latter’s preparation of draft legislation, often in interaction
with relevant lobbyists from outside the EU institutions. During the first reading of
a draft law the European Parliament can accept amendments by a simple majority,
but it can exert real influence on the final character of the proposed law only if its
amendments obtain the absolute majority of all its members that is required under
the second reading procedure.
The Parliament is also entitled to reject proposed EU laws by an absolute majority
of its members. However, as the Parliament is usually in favor of supranational EU
legislation, it has a common interest with the Commission, so that there is little threat
of complete rejection, and it rarely happens. From 1999 to 2004, some 28 percent of
bills that were passed under this so-called “co-decision procedure” were agreed on
a first reading, 50 percent on a second reading and 22 percent on a third reading.
From 2005 to 2008, some 64 percent were agreed on a first reading, 28 percent on
a second and 8 percent on a third. In 2009 there were 75 first readings, 22 second
readings and eight third readings. The trend, therefore, is for more European laws
to be adopted on a first reading, when the national parliaments, the public and the
ordinary members of the European Parliament have scarcely any information on
their content and there is virtually no publicity about them.
It is possible, however, for activist members of the European Parliament, through
their roles as rapporteurs on committees, shadow-rapporteurs, or committee coordinators, to exert a personal influence on the formulation of laws, which is well in
excess of the influence that individual MEPs can exert in traditional parliamentary
processes at national level. Such informal influence is hidden, however, and is not
something that voters can take into account on election day. The media rarely covers
the EU legislative process. Most people are quite unaware of its complex character.
There is no European public discourse such that it can support a European parliamentary democracy. Some doubt that it will ever be possible.
Consensus Democracy or Market Power
The principal hurdle in the way of adopting a European law is that it must always
have the support of the Commission and a qualified majority on the Council of
Ministers. The internal barrier in the European Parliament is that it must have
cooperative support across the political center. Socialists must work with Liberals,
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Christian Democrats and Conservatives in order to obtain an absolute majority for
an amendment to a draft law. When the normal level of attendance at European
Parliament sessions is taken into account, the reality is that 60 percent support for an
amendment is required—even more than that if the vote takes place on a Thursday
in Strasbourg!
Among the 30,000 or so EU laws and regulations that have been adopted over
the years, none has resulted from legislative work by Socialist, Social Democratic,
Green, or radical members of the European Parliament, unlike in EU Member
States, where representatives of such parties have been able to gain a majority. These
are European laws that have been approved by a qualified majority in Council (or
in some cases by unanimity) and a majority of members of the Commission. Such
laws can be modified to some extent by an absolute majority of the members of the
European Parliament, on the rare occasions when that happens, but never by its left
wing, radical, or political centrist members alone.
This mode of legislative decision-making in the EU might be characterized as a
modified market regime with an element of consensual democracy. Market forces
are often left unregulated by the EU until a majority in the Commission and a
qualified majority in the Council of Ministers can be attained in order to impose
rules in a particular area. The Court of Justice’s Dassonville and Cassis de Dijon
rulings and a whole range of Court judgments on free movement of labor, capital,
and services have provided free access to cheaper labor, less security of capital, and
free rein for sellers and producers of goods and services. This situation will remain
until the Commission and a qualified majority on the Council of Ministers decide
to implement a control regulation, which the European Parliament can then try to
improve. Hence, legislative power in the EU is generally in the hands of a changing
minority of countries that can assemble a blocking minority in the Council against
regulation or dilution of a regulation which the general majority of countries, or of
voters in particular countries, may be in favor.
Market Power and the Commission
In the “regulatory state,” as one may call that the European Union, the Commission
decides by itself, unless all Member States can agree to amend a proposed law, or
there is a proposal to amend the Treaty itself, which requires unanimity among all 27
member states and ratification by all national parliaments. Under the Lisbon Treaty,
delegated competencies can be withdrawn from the Commission by an absolute
majority of the members of the European Parliament or by a qualified majority on
the Council of Ministers. At the Constitutional Convention, I attempted to push
through a rule requiring only a simple majority of the Council and/or the European
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Parliament in order to have a delegated act withdrawn from the Commission and
put back on the political agenda, but my proposal was not accepted.
Effective legislative power in the EU is, therefore, still dependent on market
forces and on obtaining the support of the Commission until a grand coalition can
be formed for an alternative view. Under to the Treaty of Rome, all proposals for
harmonization of laws had to be adopted unanimously. It took 18 years, for example,
to harmonize the rules for free movement of architects between the Member States.
After the Cassis de Dijon ruling by the Court of Justice, the Commission presented
in 1985 a new proposal for a “New Approach to Technical Harmonization and Standardization,” whereby the EU would only define minimum common requirements
for safety, health, and the like, while technical specifications were left to standards
organizations.
Standards Regulatory Organizations
Regulatory organizations like the European Committee for Standardization (CEN),
European Committee for Electrotechnical Standardization (CENELEC), and the
European Telecommunications Standards Institute (ETSI) adopt standards for
goods and services of EU countries using the same voting rules as in the Council of
Ministers (decision by qualified majority, where countries have a number of assigned
votes in proportion to their size). The new method has therefore been effective. It
avoids cross-national rules having to be adopted in line with the speed of the slowest ship in a convoy.
There are currently some 44,000 technical standards and specifications that apply
throughout the EU. In practice these prevail throughout in the European Economic
Area (EEA) countries, which copy them independently because they are not bound
by majority votes in standards organizations like EU member states. When harmonization has an increasing impact, but cannot be altered by a simple majority of
elected public representatives, democracy itself is limited. Decisions are moved from
voters and elected officials to experts and interest representatives. The Constitution
of Denmark does not allow for the delegation of powers to standards organizations
or other entities that the national Parliament cannot immediately correct when they
make what it regards as undesirable decisions.
The power to delegate legislative powers to the European Commission and its
committees and to international standards organizations is hardly a competence
belonging to the Danish authorities.
Yet, there are currently over 31,000 legal acts, 4000 international agreements,
11,000 court rulings and 44,000 standards specifications at the EU level that cannot
be amended by the Danish national Parliament or by Danish voters. The only way
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this situation can be changed is if Denmark were to withdraw completely from the
EU, or if it succeeded in winning a majority on the EU Commission and a very large
coalition, possibly up to unanimity, among the 27 Member States with a view towards
implementing a desired change that would be valid for all EU member countries.
The 90,000 Rules Voters Can Scarcely Touch
There are over 30,000 laws in the EU, but the number of rules and regulations is much
greater because the laws are supplemented by international agreements and standards
that have the same direct effect and legal primacy over national laws as full EU laws.
There are also approximately 4,500 non-binding rules that have to be respected by
Member States, according to the Grimaldi ruling of the Court of Justice (322/88).
Most EU standards for products and services are adopted by a qualified majority in
accordance with the treaties. International standards become binding supranational
law with direct effect in all EU countries when the EU concludes international agreements with, for example, Codex Alimentarius. Product standards and specifications
should therefore be counted with EU legal acts as having binding effect.
Judgments of the EU Court of Justice can be even harder to change than EU laws.
Some of them can be changed only by adopting a new Treaty by unanimity between
the EU countries and subsequent ratifications by all 27 member states.
The approximately 1400 laws that prevail in Denmark are also supplemented by
government orders, circulars, decrees, and Danish standards, but they can be changed
at any time by a simple majority in the Danish Parliament and hence by a majority
of the voters that elect that Parliament. They are an expression of democracy. Danish courts can always be given new laws on which to make judgments, even though
such judgments cannot be changed retroactively.
EU regulations, standards, and court judgments can neither be changed by the
voters at subsequent elections nor by selecting a different composition of the European Parliament. As a rule of thumb, changing the laws necessitates the unelected EU
Commission or the Court of Justice proposing or adopting a legislative amendment,
and that amendment must be backed by a qualified majority in a secret working
group under the Council of Ministers, or on the Council of Ministers itself.
In theory, uniform landslide elections in several EU countries simultaneously
could lead to a change in European laws. That has never happened. The steady decline
in voter turnout in elections for an increasingly influential European Parliament
shows that voters do not see themselves as the most important political factor in the
EU and do not really identify with it. The EU suffers from a democratic deficit that is
tolerable only because the EU cooperation gives the elites of the different countries
influence over one another’s conditions and affairs which no individual EU member
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Table 1. Number of legal acts, court rulings, and standards
Legal acts total
31813
Secondary legislation
27611
Regulations
8588
Directives
1985
Decisions
14236
Other acts
2802
International agreements
4202
Agreements with third countries and international organizations
1521
Agreements between member states
104
Acts of organizations created by international agreements
2577
Non-binding acts
4564
Recommendations
240
Communications
4195
White papers
30
Green papers
99
ECJ Rulings
11878
TOTAL NUMBER OF STANDARDS
44838
CEN (European Committee for Standardization)
13425
CENELEC (European Committee for Electrotechnical Standardization)
21343
ETSI (European Telecommunications Standards Institute)
5287
CODEX ALIMENTARIUS (WHO&FAO food standards system)
4783
TOTAL
93.093
Source: A summary of the extent of EU legislation and rules taken from my internet dictionary, euabc.
com, given under the heading “Numbers.”
state would have if it were on its own. Voters in most EU countries still consider
EU membership to be so advantageous that they have not chosen, and have not
seriously threatened to choose, a majority in their national parliament in favor of
withdrawing from the EU.
The Growing Information Deficit
The democratic deficit goes hand in hand with a growing information deficit. The
number of articles on the EU in major Danish newspapers has fallen by 18 percent
from 1998 to 2008, while the number of European laws has grown in that time by 72
percent, from 17,574 to 30,255 legislative acts in all. In that time the share of news
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articles on the EU has decreased from 1.4 to 1.19 percent.
“The word ‘EU’ is a stop factor,” said Kristian Mouritzen, foreign editor of the
leading Danish newspaper Berlingske Tidende. “‘The ‘EU’ in the title does not sell,”
said journalist Martin Aagaard, an long-time European correspondent. The former
European correspondent Pierre Collignon, who is now News Director at JyllandsPosten, concluded: “Most readers want to be entertained, and they simply skip
the EU stories.” Since 2001, nine full-time Danish EU correspondents have been
withdrawn from Brussels, while only 11 are now left. By comparison, there are now
176 accredited journalists in the Danish Parliament of which 18 are public relations
personnel employed by political parties. In 1998, there were 119 accredited journalists in the Danish Parliament.
The State Of Democracy in the EU
Several authors have dealt with the state of democracy in the EU. They have referred
both to the lack of involvement by citizen voters and the lack of political control of
the EU executive.
Piris on democratic legitimacy
Following the entry into force of the Lisbon Treaty, the influential and well-informed
leader of the Council’s legal service, Jean-Claude Piris, published his book The Lisbon
Treaty: A Legal and Political Analysis, in which he writes: “The Lisbon Treaty has not
corrected the major asymmetries which still characterize the EU’s architecture, which
might be a factor of instability in the future, in case of stormy weather. The absolute
priority should now be to try and improve the EU’s democratic legitimacy and its
visibility for the citizens, especially through better control by each national parliament over the participation of their government in the decisions taken by the EU.”
National European Affairs Committees
National Parliaments have no involvement with or knowledge of the preparation of
EU legislation in the Commission’s 3,000 or so working groups. The European Affairs
Committee of the Danish Parliament does not get to see the agendas or minutes of
Commission meetings, although they can now find them online.
The European Affairs Committee of the Danish Parliament regularly receives
large volumes of documents from Brussels, though its members rarely read them.
The work of the committee is focused on Danish Ministers’ oral submissions. The
Minister reads from a script drawn up by officials. Officials will also have prepared
various responses to any expected critical issues. Often the Minister himself has no
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in-depth knowledge of the matter in hand. The Minister is not required to obtain
a positive mandate for supporting a particular position on an EU law or proposal,
but simply has to note that there is no majority against him. Majority governments
always have a majority behind them. There can be little democratic debate or tension
if the full opposition stands behind a proposal together.
The Council of Ministers meetings are organized the same way. The Minister—or
an official on his or her behalf—reads from a previously prepared script. The Council’s work is managed by the “secret government” in COREPER. When meetings are
over, items prepared for the agenda are regarded as adopted. Items designated as
“A-points” are never not even discussed.
Preparatory work in government ministries
Government ministries are also essentially managed by civil servants. Ministers can
take part in the formulation of overall Danish views but rarely participate in detailed
policy formulation. Overall coordination is achieved through the Government’s
Foreign Affairs Committee, whose meetings are prepared by the EU Committee,
which brings together representatives from the different Government departments.
About 35 special committees, with their officials and associated lobbyists, help to
build consensus on Denmark’s negotiating positions. The European Affairs Committee of the Danish Parliament has never received or even requested the notes or
minutes of these special committees, apart from those dealing with agriculture and
fisheries. In Denmark, the number of special committees has doubled from 18 in
1972 to 35 in 2003. Policy formulation is primarily drafted within the administration, not in Denmark’s legislature.
Government control
The Danish Government’s own monitoring of EU policies has weakened over the
years. Ministerial meetings are “fewer and increasingly empty of content,” according to Tim Knudsen. He writes: “Often an important area such as EU affairs is not
subject to real discussion.”3 The incorporation of EU directives into Danish law has
moved from the Parliament to Government Ministries. Fewer than 30 percent of
directives come before the Danish Parliament. The Ministries have taken care to
obtain authorization to implement EU legislation by regulations and statutory instruments, without need for discussion or consideration in the National Parliament.
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sion President Barroso often reads a script prepared by his officials setting out the
heads of business. A typical session can cover 20 or more policy proposals, which
are regarded as having been adopted at the conclusion of the meeting without being subject to real collegial discussion or voting. In 2008, out of a total of 11,696
Commission decisions, only 269 were taken by oral procedure entailing discussion
at Commission meetings.
Power Shift Away from Elected Representatives
A Danish study (“Magtudredningen”) notes “[t]he core of the democratic deficit in
the EU is the lack of popular participation in European decisions.” It found that in
1981–1982, some 3 percent of Danish laws made explicit reference to the EU, while
in 2000–2001 the number was 12 percent. The study found that 14 percent of the
laws from 1981–1982 were influenced by the EU while 37 percent of the laws from
in 2001–2002 were influenced by the EU.
According to a 1996 study, Wolfgang Wessels and Dietrich Rometsch put forth
a “fusion thesis” to characterize the EU’s influence on Germany as a merging of
administrative elites at the national and EU level. They found that the number of
meetings of the EU Council of Ministers has grown from 57 in 1975 to 91 in 1990.4
Between 1980 and 1990 new Council formations have emerged for the internal
market, industry, telecommunications, consumer, health, culture, civil defense,
tourism, and foreign trade. They found that 25 percent of German public officials
are dealing with the EU.5 They found officials dealing with EU matters in all government ministries. They pointed out that the local German states (Bundesländer) are
also increasingly involved in EU business. In July 1995 the Bundesländer had 129
officials in various Council working groups and 232 in the Commission working
groups.6 They estimated that in 1994 over 25,000 national officials were involved in
implementing EU laws and decisions.7
A 2005 Swedish study estimated that there was EU influence on 30 percent of
Sweden’s laws, of which 20 percent were due to binding EU rules and 10 percent
non-binding EU documents.8 Both Magtudredningen and the Swedish study most
likely miss the effect of the administrative implementation of directives, regulations
and other EU legislative acts which have direct effect at national level, for this is
inherently hard to measure. The actual impact of EU influence on that country’s
legislation is undoubtedly much greater than the figures they give.
From 2000 to 2010 the number of EU laws in force has increased by 63 percent,
while the number of new Danish laws has been stable. Since the original European
Economic Community (EEC) was formed, the Danish Parliament has passed an
average of some 120 domestic laws each year. In 1973, the year that Denmark joined
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the Community, that number was 130-140. The number of government orders was
previously twice the number of laws. Now it is four times as large.
Parliamentary Democracy Weakened
Former German President Roman Herzog has also been chairman of the Federal
Constitutional Court in Karlsruhe and of the EU Charter Convention, which drew
up the EU Charter of Fundamental Rights. In an article published in the newspaper
Welt am Sonntag in 2007, he referred to an estimate by the German Department
of Justice that 84 percent of German legislation between 1999 and 2004 originated
in the EU. He stated that he doubted whether it was still valid to characterize the
Federal Republic as a parliamentary democracy:
“EU policies suffer to an alarming degree from a lack of democracy and a de
facto suspension of the separation of powers,” he wrote, and noted that under
the German Constitution, the Federal Parliament is regarded the “central actor
in the shaping of the political community. Therefore the question has to be raised
of whether Germany can still unreservedly be called a parliamentary democracy.”
Officials and lobbyists in other national capitals and in the EU institutions have
effectively been substituted for the central role, which the Danish Constitution assigns to the Danish Parliament as the national legislature.
Some Concluding Perspectives
Most EU Member States have amended their Constitutions to adapt them to the
EU. The Danish constitution has not been amended. The democratic character of
the Danish Constitution has been compromised in the EU context by the surrender
of legislative and constituent power to the executive and judicial power exerted by
people that are not directly responsible to the electorate. The EU judges do not only
make verdicts; they also legislate and create an EU Constitution from their concrete
verdicts.
The actuality of rule by EU legislation that has been effectively drafted by nonelected officials is not even mentioned as a legislative option in the Danish Constitution. The growing influence of the elected European Parliament in the institutional
structure of the EU does not compensate voters for their loss of influence on legislation at the level of Denmark.
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Dealing with the EU’s Democractic Deficit
There are no easy solutions to the problem of the democratic deficit in the EU. It
is possible to increase citizens participation through reforms at Member State and
EU level. I have argued that there is need for national constitutions to establish and
implement the fundamental principles of democratic government. I have proposed
what in my view are four especially relevant reforms:
1. EU Commissioners should be chosen by direct election at national level
It is unrealistic to get rid of the European Commission’s monopoly of legislative initiative because this would require a new treaty which would probably not be agreed
upon by all 27 member states. While the turnout to European Parliament elections
is steadily declining, it is unlikely that citizens will come to regard the European
Parliament as their natural starting point to appoint a single European government
freed from national boundaries.
One possible, practical solution to better involve the voters is to let each country
choose its own commissioner by direct election, preferably in conjunction with elections for the European Parliament. The election of the national commissioner may
be decided in each country individually, without waiting for a mutual agreement.
If Denmark chooses its commissioner by a direct election, it would be politically
impossible for an appointed commission president to insist on a candidate who lost
the election or a person who never ran for office.
A direct election would mean that political parties and movements would put
forward their best candidates for the post instead of a worn-out politician or an
internal competitor that they want remove. It will enhance the quality of the Commissioners and their legitimacy. In addition it will increase voter turnout in European
Parliament elections because it is more meaningful and the person-centered choice
of commissioner will encourage voter participation, just like the “election” of the
Prime Minister stimulates turnout in national general elections.
2. Elected representatives to decide on all laws
The ordinary legislative procedure in Article 294 of the Treaty on the Functioning
of the European Union (TFEU) has remarkably little similarity to the legislative
procedures in the member state’s democratic constitutions. Why not reintroduce the
countries’ common principle that there must be a majority of elected representatives behind all laws, even when they are adopted in the EU? It can be done rather
simply by introducing a preliminary reading in the European Parliament and end the
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The European Union’s Democratic Deficit: How to Fix It
legislative process after the first reading. The treaty will then formally still include
the possibility of a second and third reading, which in practice will not be used.
3. Openness as default
A third reform would introduce openness as a general principle for all meetings on
legislation in the EU. One can then adopt exemptions from the openness if approved
by the European Parliament or possibly by a qualified majority in the Council and
Commission. A proposal on such a reform was signed by all the elected representatives from national parliaments in the EU constitutional convention and by representatives of 23 of the 28 governments that participated in the EU constitutional
convention. No other proposals received such broad support in the Convention. Yet,
it was neither included in the EU Constitution nor in the Lisbon Treaty.
The reform does not need to await a new treaty. It can be achieved by a simple
change of the rules of procedures in the Council of Ministers and the Commission.
The change does not even require a qualified majority, but can be adopted by a
simple majority of ministers and commissioners.
4. A subsidiary reform
The fourth reform shall ensure true subsidiarity to ensure that all EU legislations are
addressed in national and regional parliaments. Instead of adopting the actual law, the
national parliament can adopt a negotiating mandate. The idea is to involve the public
from the very beginning of the legislative process. Today the national parliaments
usually discuss EU legislation after the negotiations between the member states are
essentially over. Such reforms as the four mentioned above would not fully resolve
the democratic deficit, but they would at least reduce it in EU decision-making.
In his book Europe: The Faltering Project, Jürgen Habermas writes that the EU,
so far, has been a project of Europe’s governments and governmental elites and that
“[p]erhaps it is time for them to hand over responsibility for the future destiny of
Europe to their peoples.”9
Now that the Treaty of Lisbon has been in effect for a year or so, Europe’s citizens
should raise their voices for democratic reforms in the EU, so as to avoid a situation
where the EU traveling team of Commission President Barroso, European Council
President Van Rompuy, and High Representative Ashton set out to give countries
like China lessons on democracy and are embarrassed when a Chinese leader asks,
“How many votes did you get in the last European elections?” The true answer would
A
be not one single vote from European voters. W
Spring / Summer 2011
volume xvii, issue ii
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Jens-Peter Bonde
Notes
1. Andrew Moravcsik, ”Why the European Community strengthens the state: Domestic
politics in the European Union” in Journal of Common Market Studies 40, no 4, 603-624.
2. Peter Vesterdorf, Demokrati uden grænser [Democracy without Borders], (Copenhagen:
Forlaget Fremad 1994), 10 .
3. Tim Knudsen, “Fra folkestyre til markedsdemokrati [From rule of the people to rule of
the market], (Copenhagen: Akademisk Forlag, 2007), 298.
4. Yves Mény, Pierre Muller, and Jean-Louis Quiermonne, Adjusting to Europe: The Impact of
the European Union on National Institutions and Policies (New York: Routledge, 1996), 78.
5. Mény, Adjusting to Europe, 83.
6. Ibid., 85.
7. Ibid., 38.
8. Christina Johannesson, EU’s inflytande över lagstiftning i Sveriges riksdag [Influence of
the EU on Legislation in the Sweidhs Parliament],” Statsvetenskaplig tidskrift 107, no. 1
(2005).
9. Jürgen Habermas, Europe the Faltering Project (Cambridge: Polity, 2009).
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