Debating democracy, legitimacy and representation in the EU usually revolves around the European Parliament – a discourse that is not living up to the bloc’s particular nature as a ‘people of peoples’. Contrary, our guest author Carsten Gerards (College of Europe) argues in this blog post, that member states’ parliaments must become an integral part of the equation, both keeping their governments on a short(er) leash and counterbalancing the supranational institutions.
In line with this metaphoric language of the European Parliament’s self-presentation, in this essay, I will claim that the national parliaments of the member states constitute an equally important backbone of the Union’s democracy. Furthermore, I will argue that the bloc is at the moment more in need of an orthopaedist than of a cardiologist when it comes to the often disputed lack of legitimacy of exercising its powers.
Following Fritz Scharpf’s definition that “socially shared legitimacy beliefs serve to create a sense of normative obligation that helps ensure voluntary compliance with undesired rules or decisions of governing authority”, it becomes obvious that in modern Western states, the lack of ‘legitimacy beliefs’ and (perceived) structural democratic deficits can be considered as two sides of the same coin. The same – and probably to an even larger extent – is true for supranational political systems like the European Union, which is path-dependently biased towards output-legitimacy, this means problem solving and policy output as ‘government for the people’. The quality of input-legitimacy, in representative democracies mainly channelled through parliaments as the key actor of legislation and political control, is usually measured by standards like responsiveness to the citizens’ interests and preferences, identification with the ‘authorised’ deputies and the possibility to hold decision-makers accountable.
Although contested by some scholars, the input-legitimacy of the European Union’s exercise of power must be considered from a multi-level perspective of democratic quality. Hence, discussing democratic deficits in multi-level parliamentary systems like the European Union presupposes the illumination of its legitimising reference points of identification and therefore representation of its sovereign: the people(s). The core thesis of this essay will be that the European Union as a ’civic demos of communitarian demoi’ is essentially dependent on two legitimising sources of different quality (in a non-hierarchical sense). But the one-sided emphasis on the ‘civic demos’ and the European Parliament and efficient decision-making in the Council of Ministers, when tackling democratic deficits in this sui generis political system, does not live up to the Union’s ambivalent nature between nation-states and supranationalism. For this reason, I will argue that the voice of the ‘communitarian demoi’ and therefore member states’ parliaments must be strengthened on the European Union level to fill its democratic deficits. The concrete proposal to reform the existing structures can in broad strokes be described as ‘Folketing-isation’ of all member states’ parliaments as representatives of the ‘communitarian demoi’, that is to say, the fundamentally extended right for national Parliaments to control and – if considered necessary – determine the voting behaviour of their respective governments in the Council of Ministers.
The theoretical framework of this essay will be a combination of – on the one hand – the concept of demoicracy thatallows for both, an analytical and a normative approach to the topic in question, and – on the other hand – the communitarian and Habermasian conceptions of identity. To flesh out my understanding of the European Union as ’civic demos of communitarian demoi’ as the core notion of the argumentation, firstly, I will summarise the relevant parts of the corresponding literature in my own words. Secondly, this conception will be paradigmatically matched with the Ordinary Legislative Procedure, putting special focus on the European Parliament and national parliaments. Building on these insights, I will finally formulate my critique of the far-reaching disregard of the ‘communitarian demoi’ for the European Union’s democratic legitimacy and sketch my idea of the ‘Folketing-isation’ of national parliaments as a potential cure for the – in my view – most pressing democratic deficit in the European Union: the marginalisation of member states’ parliaments.
Understanding the ‘kratos’ [power] of the ‘demos’ [people] in an ontological instead of a merely semantic way, the ‘No-Demos Thesis’ has driven large parts of the scholarly debate about the European Union’s legitimacy, especially from the Maastricht Treaty in 1992 onwards. There was and is little dispute that a genuine demos as a possible ‘pouvoir constituant’ does not (yet) exist in an all-encompassing manner on the European level. Taking this observation into account, the concept of demoicracy starts from the, today, 28 demoi constituting the member states as the ‘masters of the treaties’. Similar to the neologism ‘Staatenverbund’ coined by the Maastricht and Lisbon judgements of the German Constitutional Court to describe the bloc’s nature, understanding the European Union as a demoicracy acknowledges both, the sovereignty and independence of the nation-states’ peoples and their ‘fusion’ to European citizenry on a supranational level. Describing this citizenry as a ‘demos of demoi’ allows us – according to Francis Cheneval – to understand fundamental principles of democracy, like participation, representation, equality and control, in a “transformationalist” instead of a “gradualist conception”. This is to say that not all democratic requirements on the nation-state level can and must be reflected in supranational (or transnational or multilateral) frameworks of democracy – and vice versa. From this normative perspective, a supranational democracy can neither be considered a ‘national democracy writ-large’, nor measured with the same benchmarks: Form follows normativity and normativity follows form at the same time.
The core idea of the communitarian conception of identity building can be formulated as follows: Social relations built on primordial feelings of attachment and belonging are the cornerstones of human communities. Obvious commonalities like language, religion or culture, but also factors like geographical proximity bring groups of individuals together and transform them in long historical and biographical processes via shared identities into communities, societies and nations. Starting from a non-political basis, norms, values, solidarity or (eventually) whole polities develop out of these communities and not the other way around: For communitarians, exogenously pre-existing identity precedes any political institutions.
Following his earlier reflections on ‘constitutional patriotism’, German philosopher Jürgen Habermas argues that a ‘civic demos’ – as the basis of European public sphere of communication – can endogenously be ‘forged’ within the pre-existing political framework of values and norms. In the case of the European Union, this European ‘civic demos’ provides the basis of a (yet to develop) transnational public sphere of equal communication to serve as the central reference point of the Union’s input-legitimisation. The Habermasian conceptions of patriotism and identification are therefore clearly separated from ethnical and cultural considerations and characterised by a universal openness.
Synthesizing the conceptions of demoicracy, communitarianism and civic identity allows for the understanding of the European Union as a ’civic demos of communitarian demoi’. Hereby, the peoples of the member states are understood as the ‘communitarian demoi’ with an ex-post national citizenship. Built on an ex-ante citizenship, the constituents of these ‘communitarian demoi’ form a ‘civic demos’ on the supranational level. Or to put it differently, while the ‘communitarian demoi’ are historically well-established entities, the European ‘civic demos’ is still in the making. It must be underlined that governments of member states themselves are – due to their very indirect way of representing the demoi – not explicitly mentioned in this description of the Union’s ‘legitimacy landscape’. But before elaborating on the democratic-theoretical implications of the ’civic demos of communitarian demoi’-conception, I would like to present a couple of arguments to demonstrate its plausibility.
The European Union as a ’civic demos of communitarian demoi
Though leaving the continent in total devastation after two world wars, European nationalism – nascent in the 19th century and escalating in the first half of the 20th – reached one of its goals: Ethnically almost completely homogenous European nation-states, or – in the case of Central and Eastern Europe – at least the most far-reaching overlap between state and nation/ethnos this part of the world has ever witnessed. Despite migration movements within the continent and from outside, most European political borders still coincide with cultural and language borders. On the other hand, the project of European integration is the most successful attempt ever undertaken to overcome nationalism in Europe; but – as data from the Eurobarometer or post-Brexit referendum surveys clearly indicate – national identification remains the core identity pillar for most European Union citizens. Furthermore, strong national identification is – especially for the less educated and less cosmopolitan-oriented – strongly correlated with their support for European integration. In a time of more and more social polarisation between the ‘winners’ and ‘losers’ of transnationalisation and globalisation, communitarian identification with one’s nation-state must be approached respectfully and integrated genuinely in the fabric of the European Union’s supranational democracy.
With the first direct elections of the European Parliament in 1979 and the introduction of the European Union citizenship with the Maastricht Treaty in 1992/93, a European Union citizenry was assumed and – in a top-down process – established at the same time. The bottom-up evolution of the ‘self-image’ as a single European people, constituting a European public sphere, has remained secondary until today. Although the development of the voter turnout for the European Parliament elections over the last decades is – despite the noteworthy uptick in 2019 – quite disillusioning, ‘secondary’ does not mean non-existent or less important. The very same reasons that strengthen the ‘communitarian identification’ for some parts of the member states’ societies, i.e. (a backlash to) globalisation and growing cultural plurality, facilitate the formation of a liberalistic, transnational ‘civic identity’ as the basis for a supranational demos. This latter observation is particularly true for the younger demographic all over the continent. Being a value-based abstraction of its components, this ‘civic demos’ is rooted in and incorporates all the ‘communitarian demoi’, which makes neither one superior or inferior to the other: Neither one must be overcome by the other and, therefore, neither one should be omitted when discussing the legitimate exercise of powers of the European Union.
The Status Quo
Article 10 of the Treaty of the European Union (TEU) states
- “1. The functioning of the Union shall be founded on representative democracy.
- 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.
- 3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.
- 4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.”
Building upon these general provisions, the European Parliament (Art. 14 TEU) and the Council of the European Union (Art. 16 TEU) can – since the Lisbon Treaty in 2009 – be considered as co-legislators on equal footing. In the ‘triangle’ of the Ordinary Legislative Procedure the interests of the European Union as a whole are represented by the European Commission which has the monopoly of legislative initiative. The European Parliament as the collective first veto-player represents the interests of the citizens of the European Union, i.e. can be considered as the institutional counterpart of the ‘civic demos’ described above. The second collective veto-player is the Council of Ministers representing the member states. Oriented on the model of an intergovernmental international organisation, the ministers of the national executives generally enjoy a large discretion in their ‘foreign policy decision’ and are – in practice – only loosely dependent on their national legislatures. The accountability towards their citizens, as laid down in the above-quoted Article 10, is therefore constructed in a very indirect way, so that the representatives of the ‘communitarian demoi’ have little actual influence on their country’s position on legal proposals – even if these are falling into the area of the so-called ‘shared competences’.
The obvious problems when it comes to representation and influence of the ‘civic demos’, like the questions of degressive proportionality in the ‘member state-oriented allocation’ of seats in the European Parliament or the still very limited competences of the Parliament in the area of the Common Security and Defence Policy, are marginal when compared to the executives-biased ‘voice’ of the ‘communitarian demoi’ in the Ordinary Legislative Procedure. The ‘Yellow-‘ and ‘Orange-Card-Procedure’ in the framework of the Subsidiarity Control Mechanism or COSAC are from the perspective of real influence not more than fig leafs to hide fundamental disproportion, leaving national parliaments marginalised in the most important decision-making procedure on the European level.
The ‘Folketing-isation’ of Member States’ Parliaments
To guarantee the equal standing of the ‘communitarian demoi’ in the European Union’s exercise of powers, it would be a step into the right direction – but not enough – to extend the existing procedures of collectively exercised national-parliamentarian control (e.g. a ‘red-card’ threshold to completely stop the Ordinary Legislative Procedure or to ‘upgrade’ inter-parliamentarian cooperation by an institutionalised involvement of COSAC in the Commission’s preparation of draft legislation). Similar to the rights of the Danish Folketing, all national parliaments should – either in a committee or as the whole plenary and in accordance with specific bi- or unicameral set-ups – have the opportunity to impose the voting behaviour of their respective governments in the Council of Ministers. This parliamentary right, which can but does not have to be used, could be limited to all areas of shared and supporting competences of the European Union to prevent any renationalisation of policy areas like trade or competition law, and would in the optimal case leave sufficient leeway for productive negotiations, compromises and ‘package deals’ on the European stage.
Since no new competences would be transferred to the supranational level, the necessary change of the treaties would be feasible under the Simplified Revision Procedure (Art. 48 TEU) without the requirement of a lengthy involvement of a European Convention, although necessary amendments of member state constitutions, of course, might lead to protracted discussions on the national level.
Being subject to a clear principal-agent relationship, it is not so much the single ‘order’ of a national parliamentarian majority that will shape the actions of the national governments on the European level, but the ‘shadow’ of the ‘communitarian demoi’ in Brussels that will revalue the latter’s position in decisions over the European Union’s exercise of powers.
In this essay, I have developed the argument that the legitimising sources of the European Union can be best understood as a ‘civic demos of communitarian demoi’. Existing parallel and interdependently, I have shown that both dimensions are from a democratic-theoretical perspective essential for the bloc’s legitimacy of its exercise of the transferred powers. While the role of the European Parliament has been strengthened with every treaty since 1979, the provisions concerning the influence of member states’ parliaments are of little ‘real world’ impact. National parliaments and therefore the ‘communitarian demoi’ are the institutional ‘losers’ of the European integration so far. The concrete reform proposal presented in this essay is the ‘Folketing-isation’ of all national parliaments. Binding national executives as agents to their national legislatures as principals is bringing the voices of the European Parliament and national parliaments together in the Ordinary Legislative Procedure. Introducing a system like this is above all pressing for policy-decisions in the area of shared and supporting competences of the European Union and should spare its exclusive competences for reasons of output-legitimacy.
If these ideas are sufficient to get the European Union out of its ‘crisis of trust’ and – after all – are realisable within national constitutions (or reforms of these), is however more than uncertain. Sometimes, however, it is the threat of the bitter medicine that heals the patient.
- Jan-Werner Müller, ‘The Promise of Demoi-cracy: Diversity and Domination in the European Public Order’, in Jürgen Neyer and Antije Wiener (eds.), The Political Theory of the European Union, Oxford University Press, Oxford, 2010, pp. 187-204.
- Francis Cheneval, The Government of the Peoples: On the Idea and Principles of Multilateral Democracy, Palgrave Macmillan, New York, 2011.
- Mette Buskjoer Christensen, ‘The Danish Folketing and EU Affairs: Is the Danish Model of Parliamentary Scrutiny Still Best Practice?’, in: Claudia Hefftler et. al. (eds), The Palgrave Handbook of National Parliaments and the European Union. Palgrave Macmillan, London, 2015, pp. 275-289.
Carsten Gerards is Academic Assistant at the College of Europe in Bruges, holding a M.A. from the same institution (Natolin). Having studied social sciences, philosophy and mathematics at the Universities of Cologne and Warwick before, he takes an interdisciplinary approach to EU studies and currently focusses on the bloc’s higher education policy. E-mail: carsten.gerards [at] coleurope.eu