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Democratic Accountability in the EU

Introduction

The legitimacy of the institutions of government, essential for a well-functioning democratic society, requires both that they are genuinely accountable to their electorates and that they enjoy the broad support of citizens.  The mechanisms for ensuring the European Union institutions are accountable to EU citizens are complex and not well understood.  This paper seeks to describe them.  In so doing it asks whether there is indeed a “democratic deficit” in EU decision making and suggests ways in which, particularly in the UK context, public understanding and confidence in the EU might be improved.

 

Background

All systems of representative democracy require the executive and legislative arms of government to be accountable to their citizens through regular elections and the free flow of information.  Amongst the 28 EU Member States, the precise form of governing institutions varies but all are democracies in which the governments are accountable to their national Parliaments.1  The European Union itself is not a state, nor is it a straightforward inter-governmental organisation like the United Nations.  It is a Treaty-based association through which the Member States have created institutions with powers to make binding laws and, when they are given a mandate to do so by governments, to execute agreed policy.  The Treaty on the European Union as updated in 2009 defines the Union’s aims: to promote peace, its values – including freedom, democracy, equality, the rule of law and respect for human rights – and the well-being of its peoples.  It also specifies that “[t]he functioning of the Union shall be founded on representative democracy”, with citizens being represented directly by the European Parliament and indirectly by their national governments, acting in the Council and European Council, accountable to their national parliaments.  Moreover, the Treaty states that “[d]ecisions must be taken as openly and closely as possible to the citizen.”2

 

Law-making and accountability

Many EU decisions – notably on foreign policy, the accession of new Member States, tax policy, the provision of additional financial resources, and treaty amendments – are reached by unanimity among the 28 national governments.  Since consensus is required, each Member State government has the ability to block an unacceptable measure and is accountable to its own national Parliament for the position it adopts.  However, when making legislation in most other policy areas (e.g. Single Market policy), decisions are made by the Member States in the Council and by members of the European Parliament, using weighted, not simple, majority voting.

Alongside the European Council, there are three institutions primarily involved in making legislation.  These are the European Commission which, in most policy areas, has the sole right to make legislative proposals; the Council and the European Parliament jointly enact legislation on the basis of the Commission’s proposals.  The institutions are assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.  The roles and decision-making procedures of the institutions are described in the table below.3

Each of these institutions is accountable to European citizens in its own way.  The European Council sets the Union’s strategic agenda and its priorities.  It also appoints the Commission (see below).  Members are the Presidents or Prime Ministers of the 28 Member States.  In most cases decisions are made by consensus, so every member has the ability to block a measure that would be unacceptable to his or her country.  In the UK, the Prime Minister has traditionally reported back to the House of Commons as soon as possible after every meeting of the European Council.

The Council is composed of Ministers from each of the 28 Member States.  The Council meets in different formats (e.g. agriculture, transport, economic and financial affairs) and the Ministers attending any specific Council meeting will normally come from the relevant Ministries.  The Council’s task is to decide European policy and, with the European Parliament, to make legislation.  Key examples are rules governing the Single Market and also the EU’s position in international negotiations, for example on climate change.  National Parliaments have the right to be informed both of proposals emerging from the Commission and of changes as they progress through the legislative process.  It is up to them to establish arrangements to call the relevant Minister to explain and account for their government’s negotiating position throughout the negotiation

The European Parliament has 751 members directly elected in the 28 Member States every five years.  Its role is to adopt legislation in agreement with the Council on the basis of Commission proposals.  It takes decisions by simple majority and its members are accountable to their voters.  In addition to co-deciding legislation, the European Parliament is jointly responsible with the Council for the EU budget and has a role in the appointment of the Commission and subsequently calling it to account (see below).

The Commission, which is composed of one member from each Member State, has a number of executive functions, including managing the EU budget, enforcing competition law and policing Member State implementation of EU laws.4  Its primary legislative role is to make proposals on which the Council and European Parliament will decide.5  The Commission’s President is nominated by the European Council and elected by the Parliament.  Its members are appointed by the European Council on the basis of nominations by Member State governments, with the agreement of the European Parliament.  The Commission as a body is responsible to the Parliament. Though the Parliament cannot dismiss individual Commissioners, it has the right to adopt a motion of censure of the Commission at any time, in which case the Commission is obliged to resign.6  Under pressure from the Parliament, for example, the Santer Commission was forced to resign in 1999. When Commissioners are nominated, the Parliament questions them at hearings and has on several occasions used its leverage to prevent the appointment of Commissioners that it deemed unsuitable.  The Commission’s President is a member of the European Council and the Commission shares responsibility for its decisions.

Overseeing the correct application of the Treaties and other EU law is the European Court of Justice, composed of one judge per member state.  It is also tasked with ensuring that the EU’s institutions act within their legal and constitutional limits.  If the European Commission, for example, acts illegally or exceeds its powers, the Court of Justice can annul its decisions; and individuals and companies can take a case to the court.  This is an important safeguard for the legitimate functioning of the EU’s institutions.

 

Additional accountabilities

In addition to the above arrangements the Treaties and their protocols lay down procedures for ensuring that national Parliaments are informed of all relevant documents, including legislative proposals, green and white papers and the Commission’s annual legislative programme, as well as encouraging inter-parliamentary co-operation including with the European Parliament.  This enables national Parliaments to play an active role when they choose to do so (see below).  Protocol 2 provides a process (known as the “yellow card”) whereby national Parliaments may communicate to the institutions a reasoned opinion on whether a draft legislative act complies with the principle of subsidiarity (which, along with proportionality, is a legal requirement).  Where more than a third of national Parliaments deliver reasoned opinions that a draft measure does not comply with subsidiarity the measure must be reviewed by the initiator of the legislative proposal.

 

Is there a democratic deficit?

The EU’s legislative processes are inevitably complex, reflecting the fact that the EU acts collectively through its Member States and the European Parliament.  The arrangements described above nevertheless represent an effective chain of accountability from those who make the decisions within the EU to the electorates in the Member States.7

Yet the perception of a democratic deficit persists, which in turn undermines public confidence in the Union.  For example, the latest Eurobarometer survey (from Summer 2015) shows that only some 40 per cent of all EU citizens trust the EU and only 54 per cent claimed to understand how it worked.  Comparable figures for the UK are 29 per cent and 50 per cent.8  Even if trust in national governments is not much different (31 per cent for all EU citizens, 37 per cent for the UK), this suggests there is much to be done to improve public understanding of the EU and to develop confidence in it.9

The perception of a democratic deficit, in the UK at least, appears to be founded on a number of assertions, including that:

  1. the Commission has too much power for an unelected body;
  2. national Ministers can be outvoted in the Council;
  3. the European Parliament is ineffective and lacks popular support;
  4. the very concept of ‘EU democracy’ is wrong-headed because there is no European demos;
  5. national Parliaments have insufficient influence on EU decisions;
  6. the EU continues to take power away from national Parliaments; and
  7. the UK has little influence in Brussels

The following paragraphs consider whether these criticisms have merit.

 

“The Commission has too much power for an unelected body”

It is true that the Commission is ‘unelected’.  However, replacing the current arrangements with an elected Commission or giving the European Parliament the right of proposal would mark a major shift in power towards Brussels and away from the Member States, creating a more federal and centralised EU.  A Commission enjoying a popular mandate would be in a much stronger position from which to challenge the Council, and thus national Parliaments.  Equally, giving the European Parliament the power to propose, as well as co-decide, legislation would strengthen its role at the expense of the Member States and their national Parliaments.

The present arrangement whereby the power of proposal is vested in a body that is required by the Treaties to “promote the general interest of the Union” and is accountable to the two main institutions representing European citizens, rather than to citizens directly, is complex,– and this reduces the level of popular support.  Yet it offers a balance which would be hard to achieve through alternative arrangements.  In exercising its power of proposal the Commission is obliged to consider what Member State governments and the European Parliament think because approval of both is needed before legislation can be adopted: any proposal which fails to appeal to both the Parliament and the Council will not reach the statute book.  There is nevertheless a case for developing further powers for national Parliaments to stimulate new proposals, as well as to demand that proposals should be withdrawn or recast (see below).

One response to the claim that the Commission has too much power for an unelected body was the so-called Spitzenkandidaten process at the 2014 European Parliament elections.  In advance, several of the major political groups in the European Parliament endorsed a specific individual as their candidate for the presidency of the Commission should they win the election.  Although the European Parliament could not insist that the candidate of the largest group be appointed as president, the majority of Member States did agree to do so after an acrimonious debate.  The UK voted against the candidate of the largest group.  It remains to be seen whether the Spitzenkandidaten process was a one-off or an innovation likely to be permanently adopted.10

 

“National Ministers can be outvoted in the Council”

Under qualified majority voting it is indeed possible for individual Member States to be outvoted, despite the general preference for arriving at decisions by agreement.  However, majority voting is central to decision making in all democratic institutions, not least the UK Parliament itself.  The threshold for a majority – 16 countries representing at least 65 per cent of the EU population – is high, and provides a direct relationship between countries’ voting power and the number of citizens a government represents.  Through the sharing of some national sovereignty via majority voting, we gain the benefit of a single EU-wide set of rules.  This is at the heart of the EU Single Market project, the EU’s most prized asset, secured by the Single European Act, negotiated by Margaret Thatcher and ratified by all Member States in 1986.  Before majority voting there was virtually no progress towards establishing an effective Single Market.

 

“The European Parliament is ineffective and lacks popular support”

The European Parliament’s powers have increased over time and it now has equal power to the Council in deciding legislation and the annual budget.  Its relevance is reflected in the fact that it is the second most lobbied Parliament in the world, after the US Congress.11  Effective democratic control also requires the Parliament to have the support of European electorates.  Relatively low turnout in some countries (35.6 per cent UK, 42.6 per cent EU average for the 2014 EP election) suggests voters are not strongly interested in the EP elections.12

Such evidence suggests a lack of interest by UK voters in the effectiveness of MEPs’ work in the EP.  This is perhaps explained in part by the current state of debate in the UK about the EU more generally, and indeed by the lack of informed debate about the EU over many years.  However, the absence of a strong link between MEPs’ and the parties’ actions in the EP and their prospects at EP elections cannot be healthy.  Responsibility for improving the visibility of MEPs and how they are performing in the European Parliament rests with them and also with the political parties under whose banner they were elected.  The public’s interest in the role of the European Parliament and the part played by individual MEPs, particularly local MEPs, inevitably depends on the information they are given about those roles.

 

“The very concept of ‘EU democracy’ is wrong-headed because there is no European demos”

Some suggest that democracy works at the national level only because people feel a sense of community – sharing a language, history, traditions and patterns of thinking.  No such community exists at the level of the EU, they would argue, as shown by responses to the migration crisis and to the Greek financial crisis.

Yet the existence of several languages does not prevent countries like Switzerland, Canada, South Africa and India from functioning as democracies.  Britain and its European neighbours have a shared history and much else in common.  While it may be difficult to maintain solidarity and to take common action where the interests of European countries differ, as recent events have indeed shown, it is not an unattainable goal.  A sense of fellowship and common identity can be moulded by events and by inspired leaders.  The European project is an effort to awaken people to their membership of a community of interest which, in the modern era, is much wider than they have been accustomed to think (just as the UN seeks to represent our shared interests as members of a global community).  It is important to recognise, meanwhile, that commitment to a European community does not conflict with national loyalty any more than national loyalty obstructs regional or local identities.

 

“National Parliaments have insufficient influence on EU decisions”

National Parliaments have a central role in holding their governments to account for the positions they adopt in Brussels negotiations.  In most Member States the public sees the national Parliament, rather than the European Parliament, as the main instrument through which they are represented.  Equally, national Parliaments are seen as the best forum for focusing public debate on important political issues, including European policy.

National Parliaments thus have a key part to play in ensuring effective democratic accountability of the EU.  As a report of the House of Lords EU select committee on the role of national Parliaments has said:

the effective involvement of national Parliaments is fundamental to ensuring that there is accountability, and legitimacy, for the actions of the Union.13

The Westminster Parliament has a long-established system for scrutinising EU documents.  However, both the House of Lords EU Select Committee and a recent report by the Centre for European Reform have highlighted weaknesses in the way the system is operated at present.  Much could be done to strengthen Westminster’s oversight of Ministers’ involvement in EU policy-making.  That would be good in itself, and would also raise the visibility of the issues to the British public.  The CER report identifies major scope for enhancing the House of Commons’ role and making more effective the accountability of Ministers for the positions they take in Brussels.  It proposes a ten point plan to strengthen Westminster’s oversight of EU policy and spread responsibility for scrutinising EU business more widely among MPs.14  The proposals include:

  • the whole House electing the Chair of the Commons European scrutiny committee;
  • linking the expert departmental select committees to the European scrutiny committee by each appointing a rapporteur on EU issues;
  • ensuring more time is allocated on the Floor of the House to debate EU issues;
  • and holding more plenary debates with the Prime Minister before European Council summits.

The British Prime Minister, David Cameron, has previously also emphasised the need to improve the role of national Parliaments to strengthen democratic legitimacy and accountability in the EU:

My fourth principle is democratic accountability: we need to have a bigger and more significant role for national parliaments […] It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.15

Whilst Westminster does seek actively to influence the debate in Brussels (the House of Lords in particular has a good track record) it needs to do more to influence policy making before proposals are firmed up.  The UK Parliament currently only has three staff based in Brussels compared to 18 from the German Parliament and this needs to change in order to match the influence of some other Member States’ Parliaments.16  Westminster has also utilised the “yellow card” procedure on several occasions, in company with other national Parliaments, most successfully on the “Monti II” proposal on the right to strike.  The “yellow card” procedure could be made more effective by extending the time national politicians have to exercise it from the current eight to 12 or 14 weeks; and by the Commission agreeing to withdraw or substantially amend any proposal that received a “yellow card”.  The procedure could also be extended to objections over proportionality.  The House of Lords EU Committee has also proposed the introduction of a “green card” whereby national Parliaments would encourage the Commission to propose legislation they consider desirable.17

Consultations with the European Parliament and with other national Parliaments, especially through the Conference of Parliamentary Committees for Union Affairs (COSAC) offer opportunities to engage and influence.  There is a case for developing the powers and the role of COSAC, perhaps creating a new permanent institution in Brussels to represent the national Parliaments collectively.

 

“The EU continues to take power away from national Parliaments without voters’ consent”

The EU can acquire new powers only by unanimous agreement of all its members, according to their separate constitutional requirements.  The UK is a representative democracy, and it has been the task of successive governments to negotiate Treaty changes, which have been ratified by Parliament.  Britain’s membership of the EU, ratified by Parliament in 1972, was the object of a referendum in 1975, and the European Union Act 2011 determined that any future EU Treaty change which involves a significant transfer of sovereignty from the UK to Brussels will trigger a referendum.  The present Government is committed to an in-out referendum even in the absence of such a transfer.  So this charge – which is as much a criticism of Britain’s own constitutional arrangements as of the EU – has been addressed.  Meanwhile, it is worth noting that some allegations of the extent of EU erosion of national prerogatives are grossly exaggerated.  According to a House of Commons report of January 2015, only 13.2 per cent of Acts of Parliament and Statutory Instruments adopted by Westminster between 1993 and 2014 were EU-related.18

 

“The UK has little influence in Brussels”

The UK has been highly successful at a strategic level in securing its key goals of the single market, a fairer budget contribution, reform of the Common Agricultural Policy, economic policies based on free and open markets, and enlargement of the EU to new members, whilst excluding itself from policies such as economic and monetary union and Schengen that it dislikes, and obtaining the right to choose a combination of policies in justice and home affairs that suits the UK’s circumstances.  At the more detailed level, publications such as the British Influence Scorecard and the previous Government’s review of the Balance of Competences indicate general satisfaction amongst British stakeholders with what Britain has achieved in the EU.19  Active involvement in EU affairs, constructive engagement and recognition of the legitimate priorities of other Member States are proven ways British governments have deployed over many years to deliver success for the UK.

British influence in the European Parliament has diminished in recent years, partly because of the absence of British MEPs from the main centre-right and liberal groups as a result of the decision of Conservative Members to leave the EPP group in 2009, the loss of Liberal Democrat members in 2014 and the election of more UKIP Members whose participation in the Parliament has been fitful at best.  The number of British staff within the EU institutions has also dwindled because of a large number of retirements and a lack of applicants, a trend no doubt reinforced by the possibility of the UK leaving the EU.

 

Conclusion

The mechanisms for ensuring that the EU’s decision-makers are accountable to European electorates are undoubtedly complex, yet they are generally effective – indeed, in some ways they are stronger at the European level than at the national level.20cross nearly every measureable dimension, the EU is at least as democratic, and generally more so, than its member states [… I]n promulgating regulation, the EU acts under the procedural straightjacket of extreme transparency, exceptional checks and balances, and tight national oversight”: Andrew Moravcsik, ‘The Myth of Europe’s “Democratic Deficit”’, Intereconomics: Review of European Economic Policy, 43(6) (2008), pp. 314-380, pp. 332, 334]  Insofar as there exists a democratic deficit it relates not so much to absence of accountability in the formal institutional structures, as to a failure to engage with and involve citizens.  There is an important job to be done, not least by national political leaders to enhance the visibility and public understanding of the European Union.  National parliaments could also play a more active role, within the present system, to help shape EU legislation and to explain to voters that it emanates not from ‘them’ but from ‘us’.

  1. This is supplemented in some cases with direct accountability to citizens, e.g. where a President with executive powers is directly elected.
  2.  Consolidated Version of the Treaty on European Union, arts. 1, 2, 3 & 10, 2012 OJ C 326/13, pp. 16, 17, 20
  3. In practice the Commission rarely votes: see Hussein Kassim et al., The European Commission of the Twenty-First Century (Oxford: Oxford University Press, 2013), p. 168; and Michelle Cini & Nieves Pérez-Solórzano Borragán (eds.), European Union Politics (4th Edition, Oxford: Oxford University Press, 2013), p. 132
  4. There is provision in the Treaties to reduce this number should the European Council unanimously so decide.
  5. A small number of instances are defined in the Treaties whereby the initiative to make proposals rests with the Council (e.g. on Own Resources and the Multi-annual financial framework) but these are rare.
  6. Herman Lelieveldt & Sebastiaan Princen, The Politics of the European Union (2nd Edition, Cambridge: Cambridge University Press, 2015), pp. 59, 66, 279
  7. Notwithstanding this general conclusion, there is clearly a case for improving the governance of Economic and Monetary Union, given the many developments within the Eurozone of recent years.  This is likely to be addressed in the latter part of the current decade.
  8. European Commission, Standard Eurobarometer 83: Public Opinion in the European Union – Tables of Results, 6 July 2015, pp. 37, 80
  9. Ibid., p. 35
  10. See Nereo Peñalver Garcia & Julian Priestley, European political parties: Learning from 2014, preparing for 2019, Notre Europe – Jacques Delors Institute, 4 May 2015; and Andrew Duff, Kai-Friederike Oelbermann, & Friedrich Pukelsheim, The Electoral Reform of the European Parliament: composition, procedure and legitimacy, European Parliament, 9 February 2015, p. 9
  11. Corporate Europe Observatory, Lobby Planet: Brussels – the EU quarter, 1 September 2011, p. 7
  12. For comparison, UK 2015 general election turnout was 66 per cent; 2014 EP election turnout was 90 per cent in Belgium and Luxembourg.
  13. House of Lords European Union Committee, 9th Report of Session 2013-14: The Role of National Parliaments in the European Union, HL 151, 24 March 2014, p. 5
  14. Agata Gostyńska-Jakubowska, A ten point plan to strengthen Westminster’s oversight of EU policy, Centre for European Reform, 27 May 2015
  15. HM Government, ‘EU speech at Bloomberg’, 23 January 2013
  16. See House of Commons European Scrutiny Committee, Twenty-fourth Report of Session 2013-14: Reforming the European Scrutiny System in the House of Commons, HC 109-I, 28 November 2013, p. 16, para. 38
  17. See House of Lords European Union Committee, Green Card on food waste, 12 June 2015
  18. See Vaughne Miller, EU obligations: UK implementing legislation since 1993, House of Commons Library Briefing Paper 15/7092, 31 January 2015
  19. Senior European Experts, Britain & the EU: What the Balance of Competences Review Found, March 2015; Nick Kent (ed.), The British Influence Scorecard 2015, British Influence, 16 January 2015
  20. “[A