The objectives of the EU are essential for the development of a normative political theory of Europe. The principle of subsidiarity brings his out:
The Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member States and can therefore, by reason of the scale of effects of the proposed action, be better achieved by the Community.
It must be applied by some institution, such as a European Court, then parties disagree about the scope of heir powers. This in turn, however, involves considering the general centralising tendency of EU institutions, including the European Court of Justice (Mancini 1991).
The third, and perhaps most fundamental, issue is that a proper application of the principle of subsidiarity requires us to be clear on the legitimate significance of states and of the powers of the European commission is due in part to disagreement on this issue. The objectives of the EU are hotly contested, and this has an impact on what powers it should enjoy.
Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However, since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the reflection group has no qualms about maintaining the powers of the Commission. The Commission is said to work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.
Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the Reflection Group has no qualms about maintaining the powers of the Commission. The Commission is said to work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.
The risk is even more pronounced with uncertainty and disagreement about the aims of the EU. This disagreement makes claims of efficiency controversial if not obfuscating. If EU institutions focus exclusively on market efficiency, leaving the distributive tasks solely to member states, the transfer of powers to European institutions might then leave states unable to fulfill the legitimate claims of citizens. Alternatively, the EU may have to assist states, by providing regional transfers aimed at distributive justice among citizens of different. The extent of any such distributive commitment is contested, and normative theory is urgently needed. EU documents talk of convergence of living standard and solidarity, but these terms must be specified: is the aim only to eradicate dire poverty, or also to go beyond that baseline, towards equal living conditions for all Europeans? Any such moves transfer formerly internal issues of domestic policies of states towards centralised institutions, leaving national governments with less leeway in the field of social policy. Some will argue that these obligations cannot be adequately secured by emasculated nation states.
A better understanding of the legitimate aims of the EU is thus crucial for making headway on the issues of legitimacy and democratic mechanisms, both practical and philosophical. As long as the explicit aim of the EU was economic, increased efficiency was easily interpreted as Pareto-improvements within a utilitarian setting. The task of the EU was previously predominantly to secure peace and stability through free markets, leaving matters of distribution and authority aside, in accordance with standard economic theory. The EU now has much broader political aspirations. Its objectives, criteria of efficiency, and the role of majoritarian mechanisms must be reconsidered accordingly. The choice of means becomes more important as economic benefit is supplemented by other political goals. Transparency and the rule of law, majority rule, distributive justice, and human rights all become central issues. They cannot be regarded merely as ideas to be pursued on a par with economic efficiency, but are conditions of justice if the EU indeed is to become and appear legitimate.
The EU is a multi-level political system which is characterized by relations of asymmetry not just between a suprastatal legal development and the lack of any corresponding democratic accountability, but between positive and negative integration as well. It is these two mutually reinforcing asymmetries which are conceptually central here, and which are featured in the descriptive and explanatory efforts generally accepted by jurists and political scientists.
For the federalist, symmetry is to be achieved through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.
But is it possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law.
German democracy assumes a distinctive character on account of its historical background. It is constituted in perpetuity, and with a strong emotional attachment to the inviolability of its fundamental provisions. No popular referendums may take place within its framework. The Basic Law of 1949cannot, moreover, be altered in respect to its core content.
The accession of the Federal Republic to the EU must therefore take place in a form permitted by the applicable articles. It is not possible to solve the problem through political means- as has been done in other member states- by allowing a referendum to undermine the central constitutional provisions safeguarding the right of the people to determine their fate. What was viewed in Denmark and in France as a political question to be decided by plebiscite was seen in Germany as a problem of constitutional law, to be decided by the Constitutional Court.
Decisions in the Council of Ministers can be adopted by majority rule. Furthermore, Community law not only has direct effect in the member states, but also enjoys priority in the principle over provisions adopted within each nation. The Union Treaty takes the fulfillment of these three requirements as a given. At the same time, the Court states as a condition for its verdict that the provisions of the Basic law in respect to democratic accountability are guaranteed.
Democracy, if it is not to remain as merely a formal principle of accountability, is dependent on the existence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals become clarified and change course... and out of which a public opinion emerges which starts to shape a political will. This also means that the decision- making processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that citizens entitled to vote can communicate, in their own language, with the sovereign authority to which they are subject....
If, as at present, the peoples of the individual states provide democratic legitimation through their national parliaments, limits to the extension of the European Communities´ functions and powers are then set by virtue of the democratic principle. Each of the peoples of the individual states is the starting point for the public authority relating to that people. The states need sufficiently important spheres of activity of their own in which the peoples of each can develop and articulate in a process of political will- formation which it legitimates and controls, in order to give legal expression to what- relatively homogeneously- binds the people spiritually, socially and politically together...
Economically, socially and environmentally, the member states are closely bound up with one another. The financial markets can on good grounds be expected to react most powerfully should a country make use of its constitutional right wholly or in part to forbid the application of Community law within its territory.
The constitutional Court departs even from such realism when it assumes the demand for the democratic accountability is satisfied through the merely theoretical possibility of partial withdrawal form Community law. For the Court cannot adduce any example of a parliament which has ever dared defy the provisionally established suprastatal order. On no occasion and in no setting, to the best of my knowledge, has any national decision been made to close the borders of a member state to Community law.
For the federalists, symmetry is to be achieved through a democratisation of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through the renationalisation of Community law.
It is possible to justify the ratification of the Maastricht Treaty with the claim that this treaty- notwithstanding its obviously suprastatist and asymmetrical features- accords even so with the principle of a steadfastly constituted democracy, as this demand is formulated in the Basic Law?
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