The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

Challenging Executive Dominance in European Democracy

Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far‐going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents – even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro‐active and networked role of parliaments – both national and European – as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

European democracy,parliamentary decline and the ‘democratic deficit’ of the European Union

This article examines two different, yet interrelated, phenomena: parliamentary decline in western Europe and the ‘democratic deficit’ of the European Union (EU). It argues that the latter has helped to consolidate, and in certain areas, facilitate, the former. This is illustrated by two sets of empirical studies, covering first the European Community (and in particular the Common Agricultural Policy and Economic and Monetary Union) and then the Common Foreign and Security Policy, and co‐operation in Justice and Home Affairs. The main conclusion to be drawn is that a simple reordering of some policies within and across different pillars will not remedy the current democratic shortfalls of the EU which stem as much from the inadequacy of existing parliamentary structures to hold EU decision makers to account, as from the absence of a European demos. The combined effects of the above are particularly crucial for the democratic viability of the emerging European polity which, as with any other political system in the modern democratic era, needs to strike a balance between efficiency and accountability.     

The Trilemma of European Economic and Monetary Integration,and Its Consequences

The article analyses trade‐offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation. The logic of EMU is incompatible with sovereignty and mass politics—only two of the three can coexist. It is argued that three different answers to the trilemma can be observed in the EU practice. In the initial EMU, integration was limited to safeguard mass politics and sovereignty. Member States were free to set economic policies in response to domestic mass politics. This proved unsustainable. During the crisis, democracy was sacrificed to bolster integration, while sovereignty was maintained. Rules on fiscal discipline and macroeconomic imbalances constrain mass politics, and non‐democratic institutions have acquired more prominent roles. Finally, long‐term plans for a genuine EMU envisage the strengthening of integration and moving the locus of democracy to the EU level, while weakening sovereignty. The analysis carries implications. If national courts insist on sovereignty and democracy, the likely consequence is an unworkable EMU, damaging the output legitimacy of the EU. The model adopted in the crisis reinforces the elite nature of the EU, undermines democracy at the national level and may bolster political extremism. This leaves the task of building the preconditions for democracy at the European level.     

After the Crash: A Perspective on Multilevel European Democracy

From a social‐market perspective, European integration has reduced the capacity of democratic politics to deal with the challenges of global capitalism, and it has contributed to rising social inequality. The article summarises the institutional asymmetries which have done most to constrain democratic political choices and to shift the balance between capital, labour and the state: the priority of negative over positive integration and of monetary integration over political and social integration. It will then explain why efforts to democratise European politics will not be able to overcome these asymmetries and why politically feasible reforms will not be able to remove them. On the speculative assumption that the aftermath of a deep crisis might indeed create the window of opportunity for a political re‐foundation of European integration, the concluding section will outline institutional ground rules that might facilitate democratic political action at both European and national levels.     

Prospects and Limits of Democratic Governance in the EU

The EU Treaty contains for the first time a title on democratic principles. These provisions emphasise the importance of national parliaments and the EU parliament for the democratic legitimacy of the EU. The new chapter on democratic principles does not address the central challenge of the EU polity to the traditional understanding of democratic legitimacy, the disjunction of political and economic governance as expressed by the important role of independent institutions like the Commission, the European Central Bank and agencies in EU governance . This is a consequence of the fact that the status of independent regulatory institutions in a democratic polity has not been clarified—neither in the EU nor in the Member States. However, such independent institutions exist in diverse forms in several Member States and could hence be understood as a principle of democratic governance common to the Member States. Such an understanding has not yet evolved. The central theoretical problem is that regulatory theories which explain the legitimacy of independent institutions as an alternative to traditional representation remain outside the methodology of traditional democratic theory. Economic constitutional theory, based on social contract theory and widely neglected in the legal constitutional debate, offers a methodological approach to understanding independent regulatory institutions as part of representative democratic governance.     

The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract:  This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.     

EU Citizenship without Duties

Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal‐theoretical foundation, if the contrary were true; (3) legal‐theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de‐dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.     

The Deterioration of Democratic Political Culture: Consequences of the Perception of Inequality

Using survey data from nine East European members of the European Union, I find that citizens’ political and social disengagement is strongly related to their perceptions of inequalities in society. Specifically, individuals’ perceptions that income and social inequalities are excessive clearly coordinates with lower levels of trust and political efficacy, as well as higher levels of both a general suspicion of others and political apathy. This is troubling as these attitudes and orientations are part of what constitute a healthy democratic political culture and thus germane to the long-term legitimacy of both national and EU governance. Further, in contrast to much of the work on inequality, this effect is neither contingent on individuals’ income levels nor clearly linked to national-level economic indicators.     

Democratising the separation of powers in EU government: The case for presidentialism

The EU, while not a state, can be conceived as a mixed or compound political system. Capturing its character of separation of powers has implications for understanding what the EU polity is, but also should be, not least from a democratic standpoint. Hence, the article addresses the EU as system of government in order to identify one appropriate path of democratisation. It first revisits separation of powers and the typology of parliamentary and presidential government to delineate criteria for categorising horizontal (i.e. between branches) division‐of‐powers arrangements. To this end, it elaborates in particular the criteria proposed by Steffani which allow for a more parsimonious differentiation between types of governments. Subsequently, the EU polity (e.g. its structure and functioning of separation of powers and “checks and balances”) is assessed regarding its conformity to a government type. Finally, I discuss implications for identifying a more certain point of reference for an approach to democratise EU government that is not only institutionally compatible, but also ‘demos enabling’.     

Democratic legitimacy in the European Union: Fulfilling the institutional logic

The European Union's delicate institutional balance between intergovern‐mentalism and supranationalism has been the source of both the EU's successes and its problems. This balance is under scrutiny as representatives of Member States and EU institutions pursue their particular visions of democratic legitimacy in the course of the 1996–97 Intergovernmental Conference. This essay examines three competing conceptualisations of democratic legitimacy: the Gaullist view, which associates legitimacy narrowly with national sovereignty; a national culture perspective that posits a unique correspondence of national character and national parliaments; and a parliamentary view that associates legitimacy with the role played by parliaments in scrutinising the behaviour of executives, whether at national or European level. Only the last of these perspectives acknowledges that democratic legitimacy is a continuous variable rather than an all‐or‐nothing concept, and that the EU may therefore accumulate legitimacy by improving both the process and substance of policy making within the logic of existing institutional structures.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

Supremacy or Primacy of EU Law—(Why) Does it Matter?

Even 50 years on the principle of supremacy or primacy is still surrounded with ambiguity, which is apparent already on the level of semantics. The principle has not carried a single name, but three. This paper argues that a disparity in the denomination of the principle amounts to much more than semantics. It exhibits conceptual differences. Different conceptualisations of the principle of primacy or supremacy entail different models of structural principles of EU law: the hierarchical, the conditionally hierarchical and the heterarchical model. These are no mere theoretical constructions; rather they have influenced concrete practices of EU law, including the most recent Kücükdeveci case as well as the Lisbon decision of the German Constitutional Court. While none of the three models has yet found an unequivocal and conclusive endorsement in the EU practice, there are compelling theoretical and practical reasons for which one of them should be preferred over the others. Whether EU law has supremacy or primacy therefore matters.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

A systematic justification for the EU's pouvoir constituant mixte: Principles of constitutional politics in supranational polities

This article presents a rational reconstruction of the practice of constitutional politics in supranational polities. In doing so, it seeks to refocus the ongoing debate about constituent power in the EU on the question of who, under what conditions, is entitled to decide on the EU constitutional order. The analysis leads to a number of principles of democratic legitimacy, which include the political autonomy of the members of the state demoi as well as the political autonomy of the members of a cross‐border demos. In explicating these parallel entitlements to political autonomy, I provide a systematic justification for the notion of a pouvoir constituant mixte, according to which the citizens should take control of EU constitutional politics in two roles: as European citizens and as Member State citizens.     

Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs

Abstract:  The question of strengths and weaknesses of national parliaments in EU affairs, one of the most salient in the debate on the democratic legitimacy of the EU, is generally answered by assessing formal parliamentary powers which can influence their governments' EU policy. Such an evaluation, however, is flawed: Formal mandating rights are usually incompatible with the overall logic of parliamentary systems, which explains why most national parliaments make very little use of them. Even more importantly, it unduly reduces parliamentary functions to the legislative or policy-making function. Drawing on agency theory, it will instead be argued that the functions of public deliberation and of holding the government publicly to account are at least as important and therefore need to be included in a redefined concept of parliamentary strength. In particular, the article proposes a distinction between two different elements of accountability—monitoring and political scrutiny—which recognises parliamentary majority and opposition as two distinct agents of the electorate.     

Habermas's European constitution: Catalyst,reconstruction, refounding

Jürgen Habermas has long been one of the EU's most prominent and influential critical friends, engaged as much at the level of legal and political praxis as social theory. In particular, he has a close and complex longstanding interest in the idea of an EU constitution. On the occasion of his 90th birthday, I want to discuss three treatments of the EU constitution located in Habermas's work: constitution as catalyst, as reconstruction, and as refounding. We find the different treatments, and the priorities that underscore them, emphasised at different times—partly reflecting changing political circumstances. We also observe some tension between the different approaches. Yet, as someone broadly sympathetic to his overall project, I argue that the best understanding of the Habermasian position, and certainly the most attractive version of that position in today's political climate, involves reconciling all three treatments within a single package.