The democratic legitimacy of the EU is increasingly seen as a highly complex issue, in which the majoritarian avenue might do damage to the European project. The underlying problem here is the conceptual history of liberal democracy. If we look at their origin and early practice, we see that the structures and procedures of representative government are not simply the instruments of liberal democracy as which they are usually regarded. They have functioned also as elements in the construction of nation states. Indeed, in the liberal era, the conferral of democratic and other citizenship rights has been one of the most important instruments for state building. From the French Revolution onwards, the extension of parliamentary democracy was essential in the creation of strong central states based on a common national identity.
Democratic theory cannot give any satisfactory answer to these questions. In this respect liberal democracy and representative governments necessarily rest upon existing state or communal boundaries, or else use what Barry calls arguments of persuasion to create new boundaries. Borders and hierarchy are the hallmark of the modern state And while the establishment of democratic regimes has not always created states, and while many states remain undemocratic, there are no examples for state-less forms of democracy.
Historically, the establishment of liberal democracy came to be tied to, first, popular sovereignty and, later, national self-determination. Popular sovereignty demands that ´the people´ have ultimate control over the institutions of state. National self-determination demands that each nation be recognised as ´a people´ with the right to determine their own affairs. These two principles have been fused in the powerful combination of ideas and values that is the nation state. The revolutions of the 18, 19 and 20th centuries each had their part in establishing the fusion of ´people’s power´ with ´national liberation´, joining citizenship with nationality. Thus, we are now faced with a generalised perception that the acquisition of democratic rights requires the establishment of a state possibly a state within a federation, but preferably an independent state.
9. Opportunity structures for citizens´ participation
The case of the European Union
Hitherto, the political rights of European citizens with respect to the European system have been limited to the right to vote and to stand for European elections.
In order to prepare for ground for a meaningful debate on these developments, and more far- reaching proposals for the inclusion of direct- democracy devices in the EU Constitution, I first outline the concept of `opportunity structures for citizens` participation`. I then take a closer look at the current position on citizens´ participation in the EU. On the strength of this analysis, some democratic innovations are suggested in the last section.
Voting at the European level
Voting at the national level of the member states might be considered as an act of participation in the European polity as well. First, the composition of the national legislature influences considerably the transposition and implementation of legislative acts of the EU. With respect to the implementation of EC directives, national voting is a `polity-related` OSCP, in the sense that it affects the composition of policy institutions. It is perhaps the most important channel by which public opinion affects EC policy via member state governments. Third, national voting is also a `control mechanism` in the sense that a strong political mandate at the national level may induce a government to hold a particular view on a European issue leading to the use of the veto in the Council of ministers or the filling of complaints to the European Court of Justice.
Membership in large interest groups, parties or federations.
As in any democratic system, this OSCP is also present at EU level. However, most of the lobbies active in Brussels are head federations of national organisations and, hence, without individual membership. Therefore and because of the specific features of the EU system (centralisation, geographical remoteness), this opportunity structure is dominated by professionals and it is an even more mediated by professionals and it is more mediated (indirect) OSCP for the `credit card member` than in the national context. In particular, there is no European party system; that is, the political groups active at the European level do not act independently of the national levels and there is no individual membership of citizens either. Given the Amsterdam reforms regarding the EP, the importance of European party politics might increase in the long run.
… 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 o 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 democratization of the suprastate. The confederalist is critical as well. But for him/her, balance is to be attained through a democratization 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, is 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 be 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 legitimating 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.
11. European Union citizenship as a model of citizenship beyond the nation state
Possibilities and limits
The 1992 Treaty on European Union (TEU) laid the foundations for a European civil society by introducing the institution of EU citizenship as a supplement to national citizenship. EU nationals have a right to free movement and residence.
EU citizenship as an institutional design offers both unique challenges and interesting possibilities. Among the latter is the prospect of a post-national political arrangement which facilitates multiple membership, by both natural and legal persons, in various overlapping and strategically interacting communities on supranational, national and regional/local levels. EU citizenship also entails the promise both of a heterogeneous community which transcends the nationality model of citizenship.
Several of these possibilities, however, remain at present unexplored or frustrated owing to the inappropriate imposition of the logic and the language of the nation state onto the European level. A prime manifestation of this is the conditioning of the personal scope of EU citizenship upon tenure or acquisition of member state nationality.
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