Decision-making in the EU: transparency and democratic legitimacy - Essay Example

? Decision-making in the EU: Transparency and Democratic Legitimacy Introduction The EU was formed as a means of promoting European democracy although its institutional and procedural framework has been described as falling short of perceptions of democracy.1 The lack of democracy is manifested in the decision-making process of the EU. Although a system of cooperative decision making was introduced, so that decision-making promotes greater participation, accountability and transparency, it remains increasingly informal and secluded from the general electorate and specific parliamentarian representatives.2 The primary concern is therefore input legitimacy from the perspective of the electorate and output legitimacy from the perspective of the EU.3 Thus, the decision-making process in the EU has been a part of academic debate particularly in respect of its transparency and democratic legitimacy. This paper analyses the EU’s decision-making process and the areas of concern giving way to the claim that it lacks transparency and democratic legitimacy. The EU Decision-Making Process The institutional framework of the EU forms the backdrop of its decision-making process. In this regard there are three primary institutional powers within the EU: The Council of Europe, the European Parliament and the European Court of Justice (ECJ). The Council of Europe and the European Parliament are both the legislative branches of the EU and the Commission represents the executive branch while the ECJ represents the judicial branch of the EU.4 This paper focuses on the decision-making process of the Council of Europe and the European Parliament and does not focus on the ECJ. The ECJ is regarded as an independent branch of the EU decision-making process and is therefore irrelevant to the decision-making process in terms of discussions of democratic governance. Council of Europe: Decision-Making Process Overview The Council of Europe’s decision-making body consists of the Committee of Ministers. The Committee of Ministers are made-up of the foreign ministers from member states who are regarded as having equal authority under a procedural rule characterized as “one country, one vote”.5 The Committee of Ministers meet once annually and since 1952 in an attempt to cope with increasing demands of governance, have shared decision-making authority with Deputies who are typically “high-level diplomats”.6 Deputies meet at least once a week and chair working parties while the Committee is chaired “by member states in six-monthly rotation”.7 The Committee of Ministers or their respective Deputies determine the activities of the Council and attempt to arrive at joint decisions relative to difficulties experienced in Europe. A number of issues are debated and resolved including politics, human rights, European integration, democracy but not defence. In general the Council of Ministers together with the European Parliament makes decisions that are geared toward ensuring that Member States do not renege on their Treaty obligations.8 The Council of Ministers has the authority to implement agreements and conventions which are left for member states to subscribe to. These conventions and agreements are usually aimed at advancing the goals of the Council. More than 200 treaties and conventions have been concluded by the Council of Ministers one of which is the European Convention on Human Rights, 1950. Typically, a two-thirds majority is required to implement a decision by the Council.9 Transparency and Democratic Legitimacy in the Council of Europe’s Decision-Making Process Democratic legitimacy can be assessed by virtue of the application of the theory of liberal democracy. Liberal democratic theory includes several standards, the most significant is the nature of representation and accountability of those who make decisions. In this regard, transparency and democratic legitimacy are evaluated in terms of input and output.10 The trade-off relative to input and output is compromised in the Council of Europe’s decision-making process as it has been described as particularly “secretive”.11 In fact it has been stated by the Council of Europe that its decision-making process is not intended to be a public process and its deliberations are necessarily conducted in “secret”.12 Even so, under the doctrine of collegium politicum, each Council decision is regarded as “attributed to the government as a whole”.13 Follesdal and Hix argue that many of the decisions made by the European Council are conducted in private and votes are rarely taken and when they are taken, they are informal.14 Specifically, Follesdal and Hix argue that the decision-making process of the Council is: more isolated from national parliamentary scrutiny and control than are national cabinet ministers or bureaucrats in the domestic policy-making process. As a result, governments can effectively ignore their parliaments when making decisions in Brussels. Hence, European integration has meant a decrease in the power of national parliaments and an increase in the power of executives. 15 It therefore follows that transparency and accountability challenges the fair trade-off between input and output. With the Council operating in private and making decisions in private and informally, accountability and transparency is absent, thus the claim that the EU lacks democratic legitimacy is substantiated by the mechanisms attributed to the decision-making process of the Council of Europe. In the absence of satisfactory transparency and accountability democratic standards of governance are compromised because those whom decisions are meant to impact do not know if the best decision serving their interests was made. Nor do those whom decisions are meant to impact know whether or not the decision was made fairly. Thus citizens are left with a large degree of uncertainty relative to the connection between a decision and outcomes.16 Thus transparency is a significant part of legitimate democracy as it informs that the policy-makers and decision-makers are acting in the best interest of the collective citizens and not for their own preferred outcome. European Parliament: Decision-Making Process: Overview Article 189 of the EC Treaty confers upon the European Parliament the authority to exercise the powers under the various Treaties. Initially, this power had been limited to merely “advisory and supervisory” under Article 137, but this limitation has been subsequently withdrawn.17 Essentially, the European Parliament has the authority to debate any issue that concerns the Member States and to implement resolutions pertaining to those issues and to request the Member States take actions and measures.18 There are essentially four primary methods by which the European Parliament engages its decision-making process with the Council of Europe. First, there is the consultation process in which the European Parliament is involved in the Council’s decision-making. The Council consults with Parliament to determine its perspective on a proposal by the Commission. However, there is no actual duty to consult with Parliament. However in practice, the Parliament will offer its opinion on Council proposals without being asked.19 Secondly, the Single European Act 1987 introduced a cooperation procedure which permits Parliament to read a proposed act twice. During the first reading, Parliament submits its opinion to the Commission and after the second reading, Parliament identifies the mutual position adopted by the Council.20 By virtue of the cooperation procedure, Parliament is at liberty to reject the mutual position advanced by the Council. However, the cooperation procedure has been virtually replaced by the co-decision process.21 The co-decision process essentially confers upon Parliament the right to participate in the decision-making process of the Council. Finally, there are a number of circumstances in which the Council requires the approval of the European Parliament in order to take action.22 Transparency and Democratic Legitimacy in the European Parliament’s Decision-Making Process. The decision-making process of the European Parliament demonstrates that the separation of branches of governance as generally expected in legitimate democratic systems is compromised by the overwhelming influence of the European Parliament over the Council of Europe. The extent of this shared power and the lack of separation of powers is demonstrated by the European Parliament’s report that the number of legislative provisions passed by virtue of the co-decision process has increased by 250 per cent.23 The co-decision making process lacks the transparency that is attributed to the Council decision-making process and thus presents a challenge for democratic legitimacy in much the same way. Farrell and Heritier argue that: The relationship between the Council and Parliament within the codecision procedure involves a plethora of informal and semi-formal meetings in which many of the real decisions about legislation are taken, with little scope for public oversight.24 Farrell and Heriteir observe that the purpose for introducing the codecision procedure was to enhance the European Parliament’s influence and role in the Council’s decision-making process and thus the legislative role of the European Parliament. On its fact, this would have meant an improvement in democratic legitimacy, but it has had the reverse effect. Parliament has had a habit of acting in a way that is autonomous, while subjugating the Council to merely rubber-stamping decisions and input by Parliament. Making matters worse, the European Parliament and the Council function in the decision-making process in a way that essentially removes the process from public scrutiny.25 As a result, the European Parliament which should represent the citizens of the EU via national parliament participation conducts its business in relative isolation “making it more difficult for national parliaments to supervise how EU business is conducted”.26 There are essentially three arguments relative to democratic legitimacy emanating from the informal process of the co-decision process and the absence of accountability and transparency. First there is the argument often advanced by federalists that supranational institutions such as the EU should mirror the democratic institutions from a single nation state. The second argument is that member states governments are elected to represent their nationals. The co-decision making process of the Council and the European Parliament should be open to the scrutiny and participation of all governments within the EU. Thirdly, it is argued that national parliaments should have control of all politics within the EU.27 Trialogues conducted among the Commission, the Council and the European Parliament under the co-decision making process, compromises democratic legitimacy in three main ways. First, as Farrell and Heritier explain: Among these developments in the institution of “trialogues:” meetings between figures in Parliament, Council and Commission, which seek to reach compromise on politically contentious matters. While these trialogues greatly increase the efficiency of decision making, they weaken the standards of democratic accountability that Parliament is supposed to live up to.28 Secondly, the secretive meetings also referred to as trialogues among Council members and some members of the European Parliament that occur in the early stages of agreement negotiations speak to failed transparency and thus weakens any concept of democratic legitimacy. Thirdly, as a result of the lack of transparency and accountability and the secretive meetings there is an increased risk that “larger member states” will or have used “their clout in Parliament to manipulate the legislative process in a non-accountable, and non-democratic fashion”.29 While this may not be a fact, it is a possibility and these kinds of uncertainties are not associated with legitimate democratic institutions. Only transparency and accountability will safeguard against these kinds of uncertainties attending a decision-making process that permits secretive meetings and negotiations. As Stie reminds, legitimate democracy follows from a decision-making process that has “withstood testing and critique in a publically accessible manner”.30 Since it is virtually impossible for the masses to be present in the decision-making process, the democratic governance process commands that they be represented by virtue of their duly elected members of parliament. Thus this aspect of the democratic process ensures that the masses by virtue of their elected representatives are able to participate in the decision-making process by virtue of the principle of agency. Thus as Stie explains: Politicians can only claim to speak on behalf of citizens if they regularly justify their positions in public so that citizens can actually know what decision-makers are up to. In short, democracy is understood as a justificatory and reason-giving process where citizens are brought in and can hold politicians to account through public debate.31 It therefore follows that the decision-making process in any democratic institution should have five primary features: 1. Open and transparent meeting venues. 2. Participation by “affected and competent parties”.32 3. Transparency. 4. “Neutralisation of asymmetrical power relations.”33 5. Competency for making decision.34 As discussed above, the codecision making process between the European Parliament and the Council of Europe is lacking in each of these five aspects of legitimate democratic institutions. The meetings are secretive, the European Parliament has too much influence and decision-making power to ensure that agents of the citizens of Europe are a part of the decision-making process and thus there is some question as to the competency of the Council and the European Parliament to make democratic political and legislative decisions. It therefore follows that the co-decision procedure, does nothing more than strengthen the influence and power the European Parliament and weaken the legitimacy of the decision-making process of the European Parliament. Conclusion This paper demonstrated that the democratic legitimacy of the EU’s decision-making process is primarily tied to questions about transparency. As noted the main issues relative to the EU’s democratic legitimacy are tied to the “remoteness and lack of influence and involvement on the part of many of its citizens”.35 The informal and secretive meetings and negotiations of the Council of Europe and the informal and secret meeting and negotiations conducted together with the European Parliament have served to buttress the isolation and alienation of European Citizens. The co-decision framework has further compromised the legitimacy of democracy within the EU as it has increased Parliament’s influence and participation. By doing so, the separation of powers is also called into question. Together with the secret and informal decision-making process, the democratic institutions that are significant for supporting and promoting transparency, accountability and participation have been compromised. Thus the democratic legitimacy of the EU’s decision-making process has been further weakened. Bibliography Bogdanor, V. 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Holzhacker, R. 2007. “Democratic Legitimacy and the European Union.” Journal of European Integration, Vol. 29(3): 257-269. Kapteyn, P. 2008. The Law of the European Union and the European Communities, The Netherlands: Kluwer Law International. Mayoral, J. February 2011. “Democratic Improvements in the European Union Under the Lisbon Treaty: Institutional Changes Regarding Democratic Governments in the EU.” European University Institute: Robert Schuman Centre for Advanced Studies, 1-12. Micossi, S. February 2008. “Democracy in the European Union.” CEPS Working Document No. 286, 1-20. Mungersdoff, M. 2009. “Evaluation EU Decision-Making Processes: A Case Study on the ‘Renewable Energy in Transport Target’ and the ‘Sustainability Criteria for Biofuel Production’ in the Context of the EU’s Climate and Energy Package.” Stockholm Environment Institute, Working Paper, 1-60. Prat, A. June 2005. “The Wrong Kind of Transparency.” The American Economic Review, Vol. 95(3): 862, 877. 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