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 1949 cannot, 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.
The very point of Community law lies in its suprastatal character. 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 principle over provisions adopted within each nation. The Union Treaty takes the fulfilment 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 be guaranteed.
Democracy, if it its not to remain as merely principle of accountability, I 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 apolitical 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 state 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 whish 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, an politically altogether…
Defending the democratic deficit means having to reconcile a suprastatal legal and monetary order with a demand for democratic accountability within a framework composed of democratically constituted nation states. Has the Court succeeded in squaring the circle, by thus combining the requirements of marginality and predictability with an interpretation of the suprastatism of Community law as provisional – in the sense of being conditional and revocable? My answer to that question is no, essentially for two reasons. One is philosophical in character and concerns the manner of reasoning itself. The other is theoretical: even within the form of reasoning chosen by the Court, it is possible to formulate a decisive criticism. The Constitutional Court thus cannot be said, in my opinion, to have solved the problem of the democratic legitimacy of Community law.
According to Article 14.2 of the ECB charter, the member states pledge so to alter their national laws and constitution as to prescribe that the head of their central bank be appointed for a term of five years, and that it only be possible to dismiss him/her following legal examination by the European Court. The prerogative to initiate proceedings aimed at such a dismissal shall devolve solely on the ECB Council (i.e. directing boards and those chairing other countries´ central banks), or by the bank chair directly concerned, ´on grounds of infringement of this treaty or of any rule of law relating to its application´. So, it will not be possible, with an individual chairing a central bank, to call the mandate into question on the grounds that said individual lacks the confidence of his/ her principals.
The ECB Council consists of the heads of fifteen central banks, the irremovability of whom is backed by the exclusive support of the European Court. To these 15 persons must be added the six members of the ECB´s directing board, who are appointed by the heads of state and government for a period of 8 years, and who cannot receive a renewed mandate. In a fashion comparable with that applying for the heads of the member states´ own central banks, moreover, it is prescribed that, if a member of the ECB´s directing board no longer meets the requirements for performing his/ her tasks, or if the member has been guilty of serious negligence, the European Court alone shall be able, upon the the request of the ECB Council, to dismiss that member.
Neither the Commission, then, nor the Council of Ministers, nor the EP will be able to question the general judgement of the members of the Bank’s directing board, once its members have been appointed. The long mandate period is furthermore intended, as is the fact that members cannot be appointed to another term, to guarantee the independence of the ECB Council: The members thereof are not to the slightest trace of democratic accountability on any grounds other than those formulated by the financial experts themselves, with the juridical support they can obtain in court with the help of the Treaty provisions.
The idea, in other words, is that the 21 directors who are assigned the direction of the monetary policy of he EU are to create an institution of its own. Their joint governance of monetary policy of the EU are to create an institution o fits own. Their joint governance of monetary policy is to be independent not merely in theory but also in practice. This independence is not just to obtain, moreover, in relation democracy in the member states. The lengthy mandate period, the ineligibility of the members for renewed service and the fact that said members can only be dismissed with the support of the European Court together entail a qualitative increase in the independence enjoyed by the directors of the Central Bank. It is not just the national democracies here which are removed from influence on account of the double asymmetry considered above. Above and beyond this the EU as such- irrespective altogether of the degree of democratic accountability within each member state- forswears the possibility of weighting the value of a stable price level against other legitimate objectives.
The modification of the democratic principle for protecting the confidence in the value of a currency is acceptable because it takes account of special characteristic- inn the German legal system, tested and proven, in scientific terms as well- that an independent central bank is a better guarantor of currency and rely on short-term consent of political forces. To that extent the placing of monetary policy on an independent footing within the sovereign jurisdiction of a European Central Bank, which is not transferable to other political areas, satisfies the constitutional requirements where under the principle of democracy may be modified.
In the authors´ view it cannot be shown that the Constitutional Court has succeeded in solving the problem of the democratic legitimacy of Community law and of the protected monetary union.
Ch.7 Legitimacy dilemmas of supranational governance.
The EC between accountability and independence.
Normative foundations of European Integration.
First, European integration is of independent normative value above and beyond the benefits it provides to specific states, groups and individuals. Second, integration must be understood as an open-ended process rather than the emergence of a specific set of institutions and policies Third, European integration is not only the expression of, but also the response to, processes of globalisation. Each of these assumptions has important repercussions for the subsequent discussion of legitimacy in the EU.
The first of these points, the independent value of European integration, is perhaps the most contentious. Yet looking at the origins and early history of the European Community it is evident that West European integration was, for a significant period of time, regarded as something more than merely a maximisation of national interests. The idea of European integration was one of the superseding competition and conflict between member states by replacing the state system with a qualitatively different system. Many saw this as a federal project, but as this proved to be far reaching, recourse was made to functional integration. Subsequently, the normative aspect of the European idea- indeed the European ideal itself-was largely lost from view as the emphasis was on functional logic and national interests. Yet it is crucial for this understanding of integration that the functional path has merely been the method rather than the aim of European integration.
The stability which integration has brought to European politics is not so much the consequence of current agreement among member states as a result of accumulated experience of a legal and institutional framework that has been built up over the past 45 years. The specific characteristics of European integration- the degree of transparency it has brought to international politics, the rule of law it has established in interstate relations, the scale of administrative and commercial interaction it has generated- make this a normatively valuable framework for political decision making.
Clearly, there are limits to the transparency and the rule of law in the EU, as there are serious limits to democratic participation. The most likely alternative to functional integration is the persistence of a state-centred system in which decision making would be much less democratic, transparent, justifiable and efficient. Seen in this light, the critique of the EU democratic deficit for a further democratisation of the EU is only credible if it is based on an affirmation rather than a rejection of the integration process.
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