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10 Four Arguments Relating to a Lack of Legitimacy of EU Action

10 Four Arguments Relating to a Lack of Legitimacy of EU Action

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158



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



integration, putting itself in a position which in other jurisdictions is taken by legislative and executive powers. The term “judicialisation” of EU law-making is used.169

The second argument is that the Union traditionally has strong elements of a

technocracy, delegating decision-making powers to technocrats.170 The Committee

of Permanent Representatives (Coreper)171 and the various configurations of comitology172 are the most obvious examples of arrangements where civil servants play

a key role in decision making. Some theories attributed a decisive role to the

European Commission, which has elements of a technocratic body, in the integration process. These theories were especially dominant in the earlier years of the EU

(at that time the EEC).173 EU agencies also fit in this picture.174 A technocratic, elite-­

led Europe was an explicit idea of Monnet.175 Sometimes the term ‘governance’ is

used in a sense that experts should be enabled to take decisions outside territorial or

democratic frameworks. Stakeholder consultation would be enough.176 Another way

of describing this argument is by pointing at the dominance of the executive within

the EU structures.177



169



 Alec Stone Sweet, The Court of Justice, in: The evolution of EU Law, Second Edition, Paul

Craig and Grainne de Burca, Oxford University Press 2011.

170

 A somehow condescending way of describing this phenomenon was used in relation to Case

C-518/07, Commission v Germany, on the independence of data protection authorities: a “consciously democracy-repudiating expertocracy”. See annotation by Jiří Zemánek, (2012) 49 CMLR,

Issue 5, pp. 1755–1768, at 1756.

171

 Although Weiler notes that Coreper was created to make it easier for Member States to swallow

European decision-making; see: The Constitution of Europe, “Do the new clothes have an

emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press

1999, at 36. This background could also be an argument that Coreper enhances the legitimacy. See

on Coreper also Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU

Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 45–46.

He argues that Coreper strengthened the role of the Council vis-à-vis the Commission.

172

 Further read: Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU

Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 46–49.

173

 These theories are sometimes called “neofunctionalism”. Further read: Paul Craig, Integration,

Democracy and Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne

de Burca, Oxford University Press, 2011.

174

 M. Shapiro states in relation to EU Agencies: “The accountability or democratic deficit problem

is almost too obvious to require comment”, M. Shapiro, Independent Agencies, in: The evolution

of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at

117.

175

 Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second

Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp. 15–16.

176

 Luuk van Middelaar in the Dutch version of The Passage to Europe: How a Continent Became

a Union, Historische Uitgeverij, 2009, at 25.

177

 Deirdre Curtin, Challenging executive dominance in European democracy. In C. Joerges &

C. Glinski (Eds.), The European crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance (pp. 203–226), Hart Publishing, 2014. See

also Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case

of the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and

European Law, 5, at 6.



4.10  Four Arguments Relating to a Lack of Legitimacy of EU Action



159



The third argument relates to the European Parliament and the Council. These

are, in principle, democratic institutions, also taking into account that the members

of the Council are subject to control by national parliaments. However, the limited

role of the European Parliament and the veto power of Member States in the

Council – where one Member State is able to block decisions supported by large

majorities – have long been mentioned as features which contribute to the lack of

democratic legitimacy.178 These shortcomings have, to a certain extent, been

addressed in the successive Treaty changes, with the ordinary legislative procedure

as set out in Article 294 TFEU as the most obvious result, ensuring both decision-­

making power of the European Parliament and qualified majority voting in the

Council in large areas of EU action. Also, the European Parliament is now entitled

to elect the President of the Commission179 and it exercises a de facto veto power

over each individual nominee for a post in the Commission.180 The Lisbon Treaty

includes provisions to further enhance the democratic legitimacy, by giving new

powers to national parliaments, in addition to the enhanced role of the European

Parliament. National parliaments now have the right to be directly informed of various activities of the Commission.181 Although this right may be rather formal as

most information can be found in the public domain, more importantly, it entails

that national parliaments have powers to check whether proposed legislative acts

comply with the principle of subsidiarity, using what is often referred to as the ‘yellow card’ procedure.182

The fourth argument concerns the lack of transparency in the European Union

and in particular in the Council. Transparency is considered one of the most critical



178



 Joseph Weiler, The Constitution of Europe, “Do the new clothes have an emperor?” and other

essays on European integration, Cambridge University Press, 1999, at 78–79. Of course, one can

also claim the opposite, namely that lifting the veto power of each Member State weakens national

parliamentary control. Qualified majority voting in the Council should thus be compensated by

increasing the powers of the European Parliament. See: Giandomenico Majone, Europe’s

‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol. 4, No.1, pp. 5–28,

March 1998, at 6.

179

 Article 17(7) TEU. It has to be kept in mind that the choice of the European Parliament is limited, since the European Council proposes a candidate. In 2014, a practical way forward enhancing

the role of the European Parliament was the choice of the President of the Commission out of the

Spitzenkandidaten put forward by the political groups in Parliament, see: Editorial Comment,

After the European elections: Parliamentary games and gambles, CMLR, 51: 1047–1056, 2014.

180

 Further read: Editorial Comment, A new Commission takes office: On the relevance of Union

law and the emergence of constitutional conventions, CMLR, 51: 1571–1578, 2014.

181

 Protocol (No. 1) on the role of National Parliaments in the European Union, annexed to the TEU

and TFEU.

182

 Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed

to the TEU and TFEU. Further read: Michael Dougan, ‘The Treaty of Lisbon 2007: Winning

minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008 at 657–661; Davor Jančić, “The game

of cards: National parliaments in the EU and the future of the early warning mechanism and the

political dialogue”, CMLR, 52, 939–975, 2015.



160



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



elements of democratic legitimacy.183 To a certain extent, the Treaties now deal with

this, by emphasising in primary law – for instance in Articles 10(3) and 15(1)

TFEU – that the institutions and bodies of the Union must ensure the openness and

transparency of the EU policies. The Treaty on the Functioning of the European

Union also provides for direct participation of citizens and civil society in EU

actions.184 Furthermore, under the rule of law there is a full system of judicial protection.185 However, the Union is still perceived as operating with a significant

amount of secrecy arrangements and practices.186 An example of this is the practice

in the context of the ordinary legislative procedure where trilogues between the

European Parliament, the Council and the Commission187 play an important role.

Trilogue meetings take place behind closed doors with very little public information

on the negotiation process.188 This was a reason for the European Ombudsman to

open an own-initiative inquiry.189



4.10.2  D

 emocratic Legitimacy Formally Closer

to the Optimum, But Socially Not Widely Accepted

Despite all the measures, aimed at enhancing the democratic legitimacy of the

European Union190 and bringing the Union closer to the democratic optimum,191 the

debate did not end. In the words of Craig: “The problem has been alleviated but not



183



 Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of

the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and

European Law, 5.

184

 E.g., in Article 11 TEU.

185

 See on this Chap. 2, Sect. 2.5 of this book.

186

 As explained by Deirdre Curtin, Challenging executive dominance in European democracy. In

C. Joerges & C. Glinski (Eds.), The European crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance (pp. 203–226), Hart Publishing,

2014.

187

 Raya Kardasheva, Trilogues in the EU legislature, King’s College London, Department of

European and International Studies, Research Paper, 30 April 2012.

188

 Chapter 10, Section 10 refers to the trilogue concerning the General Data Protection Regulation.

189



On 26 May 2015, see: http://www.ombudsman.europa.eu/cases/correspondence.faces/

en/59978/html.

190

 Further read: Koen Lenaerts and Piet van Nuffel, European Union Law, Third edition, Sweet &

Maxwell, 2010, Chapter 20. An interesting read is the Lisbon ruling of the Bundesverfassungsgericht

(2BvR 2661/06, 6 July 2009, at 276–297). It formulated strong arguments against the level of

legitimacy of democracy in the EU, and in particular against the democratic control by the

European Parliament, emphasising that the European Parliament does not represent European citizens, but the peoples of the Member States.

191

 Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3,

pp. 617–703, 2008, at 690.



4.10  Four Arguments Relating to a Lack of Legitimacy of EU Action



161



cured by changes made by the Lisbon Treaty.”192 In short, neither the European

Court of Justice nor the Commission can be held (fully) accountable,193 whereas the

roles of the Council and the European Parliament194 are still imperfect. For obvious

reasons, it remains to be seen whether the Council representing national governments will ever be able to qualify as a fully democratic institution, but also about the

democratic nature of the European Parliament there is no communis opinio. The

Lisbon ruling of the German constitutional court illustrates this: it classifies the

European Parliament as a representation of the peoples of the Member States, not of

EU citizens, and not based on equality of votes (“one man one vote”).195

This leads to a basic distinction in the understanding of democratic legitimacy. It

can be understood as a more formal concept, meaning either that a system rests on

some democratic foundation196 or – stronger – that it is based on a directly elected

parliament with full powers.197 In addition, a more social concept of democratic

legitimacy is used which refers to the evidence of wide acceptance in society.

One can argue that in the successive Treaty changes and in particular in the

Lisbon Treaty – albeit imperfect – solutions were found for issues relating to the

formal aspects of democratic legitimacy.198 However, this does not necessarily

diminish what Weiler called the crisis of social legitimacy.199



192



 Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law (Second

Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 36.

193

 Of course, in a democratic system the highest court should not be held accountable. The observation is related to the supposed role the CJEU played in the European integration process. As to

the accountability of the Commission, under Article 234 TFEU the European Parliament can adopt

a motion of censure requiring the Commission (as a whole) to resign.

194

 Bundesverfassungsgericht Germany, ruling of 30 June 2009, 2 BvE 2008, at 276 et seq.

195

 This relates to the discussion between Moravcsik and Weiler c.s. whether electoral accountability is a prerequisite for democratic legitimacy (see Sect. 4.8 of this chapter).

196

 Wording taken from The Constitution of Europe, “Do the new clothes have an emperor?” and

other essays on European integration, Joseph Weiler, Cambridge University Press, 1999, at 80.

197

 This is what Majone calls a pure majoritarian or ‘Westminster’ model. See: Giandomenico

Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol.

4, No.1, pp. 5–28, March 1998, at 10–11.

198

 This does not necessarily mean that these solutions address all concerns. E.g., the German

Bundesverfassungsgericht ruled in its ruling on the Lisbon Treaty (30 June 2009, 2 BvE 2008, at

276 et seq.) that control by the European Parliament as such does not result in full democratic

legitimacy.

199

 The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on

European integration, Joseph Weiler, Cambridge University Press, 1999, at 84.



162



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



4.11  T

 he Background According to Weiler: The Crisis

of Social Legitimacy

Different perspectives, or “different views from the cathedral”,200 explain this ‘crisis’ of social legitimacy. First, the consecutive Treaty changes attributed tasks of a

different nature to the European Union than the original functions of the Union

(more precisely the EEC). Besides the perspective of the single market, the Union

now also offers its citizens an area of freedom, security and justice without internal

frontiers.201 Article 6 TEU and the Charter also entrusted the Union with general

responsibilities on fundamental rights. Second, opposition grew against the incremental way of extending the Union’s powers, sometimes defined as jurisdiction

creep,202 and against what is sometimes felt as an extensive exercise of the Union’s

legislative powers.203 Finally, and most importantly, the ‘crisis’ is caused by what

Weiler describes as the absence of a European demos.204

Within Europe the principal focus of collective loyalty is not with the Union.205

Democratic legitimacy is difficult to obtain when the primary loyalty is not with the

Union as a whole but with a part of it, usually a Member State. This has become

clear in situations where citizens in more prosperous Member States were asked to

contribute to the welfare of less prosperous Member States. The resistance within

Northern Europe against contributions to the bailout of Greece during the financial

crisis is the obvious example.

This loyalty issue also plays a role where the level of fundamental rights protection is at stake. The legislative procedure on the General Data Protection Regulation

provides a good example. Various views coming from Germany206 were founded on

the perception that a considerable reinforcement of the level of data protection in the

European Union should not adversely affect any specific existing measure of protection in Germany. The absence of a European demos is also relevant in relation to

200



 Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second

Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp 28–29 and the overview of literature in footnote 35 of Chap. 2.

201

 Article 3(2) TEU.

202

 See Micossi in: Stefano Micossi, Gian Luigi Tosato (eds.), Europe in the 21st Century:

Perspectives from the Lisbon Treaty, CEPS Studies, 2009.

203

 A good example is the letter (in Dutch) of the Dutch Minister of Foreign Affairs to the Dutch

Parliament of 19 February 2014, Staat van de Europese Unie 2014 (33887). “The Netherlands is

convinced that the time of an

‘ever closer union’ in every possible policy area is behind us.”, see: http://www.economist.

com/blogs/charlemagne/2013/06/netherlands-and-eu

204

 Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second

Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 15.

205



Wording from Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of

Standards, European Law Journal, Vol. 4, No.1, March 1998, at 14.

206

 These views are not exclusively German, but were mostly brought forward by German representatives in the Council. See: Update on the General Data Protection Regulation, on http://www.

kwm.com/en/de/knowledge/insights/update-on-the-general-data-protection-regulation-20140424.



4.11  The Background According to Weiler: The Crisis of Social Legitimacy



163



the democratic accountability of data protection authorities and networks of authorities. According to Bignami,207 informal networks of authorities require, in order to

be legitimate, particularly a public that reacts, be it through the press, elections,

lobbying or other avenues.

The rejection of the Constitution for Europe in referendums in France and the

Netherlands and the low turnout at European Union elections, as well as the fact that

EU elections are dominated by national issues, or at least channel eurosceptic

sentiments,208 are examples of the crisis of social legitimacy. The rejection of the

Constitution led to the Lisbon Treaty which is in substance quite similar to the

Constitution, but without the form, language and symbols of a European

Constitution.209

Van Middelaar210 describes the European integration as a quest for visibility with

an audience that supports the integration. In short, the European Union is not perceived as an institution of the citizens. European leaders speak in name of the people211 whereas many people are not aware that their leaders are speaking in their

name. Even stronger, the Union may be perceived as interventionist or as a foreign

occupational power. Although this book is not about the social legitimacy of the

European Union, Article 16 TFEU provides for a wide mandate for the Union in the

area of privacy and data protection, with a direct impact on EU citizens. The exercise of this mandate necessarily takes place against the background of shortcomings

in social legitimacy, without a – or without a sufficiently – supportive audience and

without a – or without a sufficient – perception that people are being represented by

the EU institutions.212

This background plays its part in justifying the European Union’s role under

Article 16 TFEU. One could argue that the shortcomings in social legitimacy plead

against a further role of the Union in relation to the fundamental rights of privacy

and data protection. This is in line with the reasoning of Menon & Weatherill who

argue that the solution for the absence of a European demos does not lie in making



207



 Francesca E. Bignami, Transgovernmental Networks vs. Democracy: The Case of the European

Information Privacy Network, Michigan Journal of International Law, Vol. 26, 807–868, 2005, at

858.

208

 One could argue that the European Parliament elections in 2014 were dominated by EU issues

in a number of Member States, but with the result that Eurosceptic parties won.

209

 Further read: Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45

CMLR, Issue 3, pp. 617–703, 2008.

210

 Luuk van Middelaar, 2009, De passage naar Europa. Geschiedenis van een begin (published in

English as: The Passage to Europe: How a Continent Became a Union), Historische Uitgeverij,

part III.

211

 A good example is obviously the preamble of the TEU, where it speaks about continuing the

“process of creating an ever closer union among the peoples of Europe”. The ‘closer Union’ is also

mentioned in Article 1 TEU.

212

 Dougan explains that the Lisbon Treaty succeeds in terms of effectiveness (“Europe of results”),

but not in terms of understanding and acceptance; Michael Dougan, ‘The Treaty of Lisbon 2007:

Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008, at 702.



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