The Jean Monnet Program
European Union Jean Monnet Chair
Jean Monnet Working Paper 10/03
How Do Our Judges Conceive of Democracy?
The Democratic Nature of the Community Decision-Making Process under Scrutiny of the European Court of Justice
NYU School of Law New York, NY 10012
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No part of this paper may be reproduced in any form
without permission of the author.
© Stefania Ninatti 2003
New York University School of Law
New York, NY 10012
Public Law Institute
University of Milan
Via Festa del Perdono 7
20123, Milano, Italy
How Do Our Judges Conceive of Democracy?
The Democratic Nature of the Community Decision-Making Process under Scrutiny of the European Court of Justice
A Theme Dear to the Courts: Institutional Balance as a Fundamental Part of the European Democracy………………………………………….....3
Consultation of Parliament at the Center of Institutional Balance in the Era before Maastricht…………………………………………………....6
A Premise on Method……………….………………………………….…6
The Roquette Frères Judgment as the First Occasion for Reflection on the Democratic Principle…………………………………………………..…9
Democracy Put to the Test of Court Politics…………………………… 15
Consultation of Parliament after Maastricht: from Institutional Balance to Interinstitutional Dialogue……………………………...……23
Loyal Cooperation in Interinstitutional Relations……………………….23
Politics and Law in Community Decision-Making Processes…………...27
The Court of First Instance and Participative Democracy, namely Functionalism in Community Decision Making Process…………..……....32
Conclusions in Perspective: not a Democracy, but Elements of democracy….………………………………………………………………......39
This paper examines the ECJ case law on the democratic nature of the community decision-making process and is an attempt to draw a file rouge from this line of judgements, even if the fact that the Court fluctuates “between highs and lows”, following the path not only of specific individual cases, but also of the institutional historic moment, makes this task a difficult one.
The paper shows us that the democratic principle used by the ECJ judges seems, at least initially, to need to rediscover itself in the constitutional traditions common to the member States. A sign of that osmosis occurring between the Community level and the national one: the Court finds supports in the classical theory of representative democracy as the living experience of the legal orders of the Member States. This study also argues however that, at the moment, the Court doesn’t linger too much – except in rhetoric – on the problematic of popular representation but, rather, focuses its attention on the principle of institutional balance limiting, in the end, the democratic process to within the boundaries of the institutional relationships.
The starting point for the democratization of the Community decision-making process seen in the jurisprudence of the ECJ has been until now, the strengthening of the role of the European Parliament. It is clear however that the ECJ does not view this as sufficiently encompassing and continues to seek alternatives to fill the perceived democratic deficit. It is these alternatives which the author will explore and consider more fully.
“…except for the European Union
no transnational structures exists
with even the semblance of a democratic process”1
How Do Our Judges Conceive of Democracy?
The Democratic Nature of the Community Decision-Making Process under Scrutiny of the European Court of Justice
A Theme Dear to the Courts: Institutional Balance as a Fundamental Part of the European Democracy
On October 12, 1993, the German Constitutional Court, with particular audacity, raised the problem of democracy in the context of the European community (Maastricht Urteil). On that occasion, the German Supreme Court investigated – perhaps for the first time before a Court - the democratic nature of the community decision-making process, questioning in particular the continued transferal of competence from the federal level to the supranational level and the possible democratic deficit inherent in this: if in fact the real European legislative body is the Council leaving the European Parliament with merely consultative powers, at first glance it would appear that the democratic principle wavers.2
A more recent sentence from the Court in Strasburg (Matthews case, February 18, 1999) changes the thrust of the argument, sustaining that it is not possible to consider the European system of government according the traditional categories of national public law, with their more or less strict divisions of power, and in particular with classic distinction between executive and legislative powers. The sui generis nature of the European Union is reflected first and foremost, in the very structure of the European decision making process, established by the strict co-participation of the European Parliament, the Council, and the Commission.3 In a system so articulated, the Strasburg judge believes, while recognizing the evident lack, that the role of Parliament is essential (and sufficient) with a view to guaranteeing the democratic principle of the European Union: starting from the fact that Parliament derives its legitimacy from direct elections held under universal suffrage, this:
“must be seen as that part of the European Community structure which best reflects concerns as to ‘effective political democracy’” 4
It certainly cannot be said that the Judge of Luxembourg, for his part, is new to this theme. On the contracty, having - perhaps more silently than the courts- contributed directly to the configuration of a more solid parliamentary institutional position in the European government: if in such cases the impetus is (as often is) the protection of correct legislative procedure in its multiple aspects and, by extension the guarantee of the role of Parliament in representing the peoples of Europe, the reasoning appears to be rather the juridical application of democratic principle. The cardinal principle of such a series of decisions, around which the defense of democratic principle revolves, is the existence and the maintenance of institutional balance, which constitutes the true factor guaranteeing the realization of European democracy, analogously to what happens at the national level through the principle of the separation of powers. 5
Both similarities and differences, therefore, link the affirmations of the European Supreme Courts. It is immediately evident that, in the Courts, the debate on the state of democracy in the Union finds its ideal referent in the role of Parliament, a sign, above all, of juridical continuity with the parliamentary traditions of the member states of the European Community. Consequently, this easily explains the perplexity perceived by the highest Courts regarding the excessive imbalance of the decision-making pole in the area specific to executive power - the so-called “executive dominance issue” - which does not seem particularly compatible with the classical Parliamentary model.
Dwelling in a more pointed fashion on the ample case law of the European Court of Justice can, therefore, constitute a helpful angle from which to understand the evolution of the affirmation of democratic principles in the European Union. This is true also because, often, jurisprudential affirmations appear to prefigure those normative reforms to which the treaties have conformed throughout the history of European integration.6
In this sense, the Court undoubtedly appears as a privileged “political” agent in the study of European constitutional evolution.7
Within the guarantee of institutional balance, a singular axis is formed between the Court and the European Parliament, by which the latter identifies the judge of Luxemburg as the subject invested with the power to defend his prerogative as the democratic body par excellence in the European government. That Parliament (often) sees in the Court an ally is surely a peculiar hallmark of the Community organization and shows the limits of comparison with the typical parliamentary legal traditions of the Member states.8
At times the motivations of Parliament in calling the Court to the protection of its role sound rhetorical and in cases like these, in which the affirmation is more a question of style rather than inherent to the real configuration of the case, the Community judge tends not to dwell on them and enters more specifically into the merit.9 At times, instead, the request for protection by the “democratic” body is by definition more articulated and internal to the problematic of the evident constitutional matrix; thus, in order to seize the importance of the Court’s role to the representative body of the peoples, it can be useful, for example, to bring the intervention of Parliament back within the viewpoint of the Court n. 1/92. In such a situation, the European Parliament laments the limitation of powers conferred upon Community judges in the future institutional structure of the European Economic Area, so that it does not grant adjudicative power an eventual defense of the parliamentary role in the decision-making process: from all this derive the (reduced) competences attributed to the Court of Justice as that agreement contradict the democratic principle established in the Preamble.10 Firstly, we can deduce from such observations the principle according to which the democracy of the European Union is possible only under the conditions that all of its bodies are able to develop the functions attributed to them according to the institutional balance established by Treaties. Perhaps however one can go further and see in the Court, Parliament’s primary interlocutor in the battle for the affirmation of democracy in Europe. Let us therefore note this “strange” alliance between Court and Parliament, almost unknown to the traditions of the member States.11
Consultation of Parliament at the Center of Institutional Balance in the Era before Maastricht.
A premise on method
“La democrazia è una cosa complicata, guai a chi cerca di semplificarla più di tanto:”12. Above all one must submitt successive analysis that Amato’s realistic affirmation risks ulterior complications in this case, given the uncertainty of the juridical nature of the European Union itself. Indeed, before taking up any analysis regarding the affirmation of the democratic principle in the Community ambit, it would be necessary to say that one can find a system of a State or international nature. It is very different, indeed, to argue democracy as the connotation of a State organization rather than a supranational one (and in this sense, perhaps, even the observations on the democratic deficit would often need to be contextualized). As it is not the task of this work to go into detail on the problematic of the European Union’s statehood (or lack thereof), we will start, more simply, from the given fact according to which the European Union (still) cannot be defined as a classically understood State.
Consequently, the legal debate on democracy in Europe has been vitiated through a general ambiguity, due to the “double face” of the European Union: the international side of the Community is at the origin of an(initial) silence by the Treaty on this topic, its evolution towards a new form of statehood create and urgency to address this.
Notwithstanding, it seems additionally difficult to mechanically transport observations and theories of democracy at the supranational level (given that at such level this problematic must be treated with greater caution and engender greater uncertainties, as they have fewer points of reference) if not actually different, compared with the state level as they are still in full evolution. Therefore, for example, if it is a common affirmation that the internationalistic origin of the European Community is such that it is impossible to classify it as a majoritarian democracy, being characterized by a decisional and legislative process of a consensual type, nevertheless the differences are such to permit the use of this kind of terms only sparingly.13
While starting from the observation by which the Union cannot be considered a State, the problem of democracy at the Community level manifests itself, and this cannot be relegated exclusively to national experiences. The need for what is called “Eurodemocracy” is felt, justly, as a mandatory step in the history of European integration, since the transferal of competences at the Community level - which then, in function of the principle of direct effect and of the supremacy of Community law, has shattering effects within the single member states - requires the legitimization of the power exercised at the Community level and therefore the formulations of a nexus between European government and citizens. If national parliamentary support at the moment of ratification was once considered sufficient to these ends – a case in point was Kirchof’s analysis, that indicated in such law the “point of passage” of the Community norm within single state order14 - now more and more doubts arise about whether this can still be considered an adequate instrument for covering the entire Community phenomenon.15 The European Union thus launches a double challenge: on the one hand the democratization of the supranational level, but on the other hand, the member states cannot allow themselves to lower their guard, and are themselves essential and irremovable to the ends of the European democratic experiment.
One can therefore perceive, albeit with evident limitations, how the democratic question is trying to impose itself ever more directly at the supranational level. None other than the result of an osmotic pressure created by the ever tighter integration of the member nations, in regards to which - be it said incidentally - it would also be interesting to verify how the Community construction has, on the contrary, influenced those same state democratic structures, effectively making them correspond to a model ever more homogenous in Western Europe.16 We are therefore in front of a new democratization process, comparable only in a general sense with the other existing forms of state and that is supported willingly by a double level of democracy: not only that of its member states, but also, distinctly, that of the very Community machine as expressly decreed by articles 6 and 7 of the Treaty.17
The interest in probing possible paths to the democratization of the Union is derived from the asserted need of a stronger democratic support for the Community construction. A study on the position of the Court in this matter may appear to be a detail, and yet such an approach constitutes a precious, concrete and realistic visual angle on the present state of democracy in Europe.
b. The Roquette Frères decision as a first occasion of reflection on the democratic principle.
The cornerstone of the successive case law on the subject, and a first step towards a jurisdictional guarantee of the democratic principle at the Community level, is a ECJ decision concluding with the annulment of a regulation on the common norms for the production of isoglucose: we are in 1979, the year of the first direct election of the European Parliament.18
How the historic fact – contemporary to the dates in question - touched upon the comportment of the Court, is implicit in the tenor of the affirmations of the judges in regards to the democratic principle, and to the subsequent resolution of this case.
The case arose following a request for a parliamentary opinion on the part of the Council that, due to the entering into force of that act starting July 1 1979, which was requested during the April session. Not only was the issue not discussed in Parliament during the April or May sessions, but it was further postponed due to the imminent taking office of the new (and first) Parliament elected by universal suffrage, the reason for an interruption of the session until the month of July. On June 25, 1979, the Council, without requesting the urgent consultation of Parliament, adopted the new regulation on the matter (n. 1293/79). This is precisely the object of the present challenge.
There are various points of particular interest in this sentence. The central point of the motivation of the Community judges resides in the violation of the obligation of consultation provided for the adoption of the said regulation, because:
“the consultation (...) is the mean which allows the Parliament to play an actual part in the legislative process of the Community. Such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly.”
In the case in question the simple request of an opinion without having exhausted all the means necessary to obtain it, is not sufficient to avoid the breach of an essential procedural requirement of the act. Given that in order to have a declaration of nullity of the act the breach of the law must be of an essential nature, the Court is obliged to found its reasoning - however slippery the affirmation of reality may be - on the remark that the absence of an opinion from Parliament configures a potential violation of democratic principle. Moreover, the Advocate General, in instructing the case remarked how the confrontation between parliamentary structures with national parliaments is seriously limited and the further reduction of the previous opinion of the European Parliament to a simple request would be equivalent to making the participation of the peoples of the Member States practically inexistent in the legislative process. In general, in fact, using the words of Advocate General Reischl, one may consider that the consultative power of Parliament in the era constituted:
“The most important means of involving the peoples of the Community in the drafting of Community legal measures.”th
The historic affirmation of the Court in the Roquette Frères sentence will constitute the dominant refrain of the European Court of Justice’s cases in such matters, and is fundamentally based on two principal elements in the definition of democracy, evidently two sides of the same coin: on the one hand the necessary presence of Parliament within the legislative procedure as an element of institutional balance provided for by the treaties, and on the other hand, the participation of the peoples in the supranational decision-making process. To the classical conception, whereby a government is considered democratic in the measure in which its institutions are (at least in part) accountable to popular elections, the liberal-democratic or Madisonian theory19 is joined, according to which democracy is constructed on a sort of platform of reciprocal powers and controls divided amongst single governing bodies, thereby effecting a system of checks and balances. It is easily discernible that the two levels are closely connected, as, in the long run, the theory of checks and balances is destined to exalt popular participation as one of its elements: and in this sense such a theory seems, in its current state, less fictitious than the theory regarding popular participation in the European government. In a recent conclusion, Advocate General Geelhoed affirms this nexus between the two democratic principles:
“Institutional balance plays an important role in the decisions of the Court. In this, however, the Court establishes a direct link with the prerogatives of the European Parliament and the democratic principles underlying them.”20
While the Court can base the affirmation of the balance of powers on previous decisions and on textual foundations (art. 4), with regard to the democratic principle understood as the participation of the peoples in the decisional process the textual foundation is truly minimal in the Treaties. Clearly, there is the norm regarding the composition of European Parliament that qualifies its members as representatives of the peoples of the States united in the Community, but the Court undoubtedly tends to go beyond this affirmation. The democratic principle that the Court draws on appears to need to rediscover itself in the constitutional traditions common to the member States, a sign of that osmosis occurring between the Community level and the national one: the Court finds support, at least initially, in the classical theory of representative democracy as the living experience of the legal orders of the Member States.21
A further observation regarding the use of the plural “peoples” (an expression found in the Treaties as well), and the generic recalling of the representative nature of the parliamentary body: the Court’s insistence on this point appears to originate from the need to individuate an outlet to the principle of popular representation, traditionally understood as a bench-mark of every democratic ordinance: if, in the process of European integration, the national parliaments tend to lose importance, the peoples of the member States must find another level of representation (the supranational one), otherwise the system could not be defined as democratic. 22At the same time, the fact of not representing a single people, but rather, peoples makes this form of representation sui generis and makes the European Parliament a body not comparable with national Parliaments: starting from this observation there have been those who sustain that the heart of democracy in Europe is not so much the right to be represented as the right to participate in the process by which European government is chosen.23 The European Parliament is of a strange breed: on the one hand it is the Community body that is apparently most comparable to its national equivalent, while on the other hand, every attempt to assimilate it crashes on the rocks of an evident functional difference. Even if -be it said incidentally -, at present, it’s difficult to find a “classical” parliamentary system also in the national experience, since it is more and more evident a general trend towards an executive dominance at this level too. But - to remain on the community problematic - the international origin of the Community structure weighs decidedly on the Community system: the problem, therefore, is more serious than a simple representative deficit in the decision-making process. Even more worrisome, in fact, is the deficit that is perceived at the level of the separation of powers with the tilting of powers toward the executive pole, which is one of the more immediate consequences of the integration process.24
This latter observation leads us to the second concern manifested by the Court, which is that of maintaining institutional balance - a preoccupation present as well in many preparatory documents for the intergovernmental conference and in reform proposals.25 The Court is thus driven to analyze the form of European government in its entirety, referring to the existence of a system of checks and balances by which the government can be considered democratic if the pre-established equilibrium amongst the individual institutions is respected: competences, therefore, but controls and limits as well. Furthermore, it must immediately be noted that it would make little sense to translate the Court’s expression “institutional equilibrium” into the classical principle of the separation of powers.26 If the institution’s reasoning is similar - to protect the Community organization from the monopoly of power held by a single body, and in this sense the instrumental nexus is easily identifiable with democracy -, one cannot imagine the principle of the separation of powers to be simply transported to a higher level. The Court always speaks of balance (and not division of powers), precisely in order to clarify that within the Community an equilibrium takes place, implying in primis an institutional cooperation rather than a subdivision of tasks.
However, this fact is intrinsic to the structure of the Community organization, which lacks a detailed set of regulations regarding the powers of individual institutions. 27 The need for a guiding principle in cases of doubt regarding functional interferences is born from this very vague rule taken from the Treaties: in this context one must understand the institutional balance that the Court raised up as one of the constitutive aspects of the Community form of government.28
Immediately following the taking of office of the first European Parliament elected by universal suffrage, these are, therefore, the theoretical elements on which the affirmation of democracy in Europe is founded. Following this, successive decisions will base itself on them in order to constitute29 a European decision-making process that can define itself as (ever more) democratic.
Such elements take the problematic under scrutiny without half-measures: if, on the one hand, the international origin of the European Community made it such that the issue of democracy was not written into its political agenda - according to the works of a noted Advocate General “shocking thought it may seem the Community was never intended to be a democratic organization”30 - on the other hand, this question emerges progressively along with the evolution of the Community structure, and, in the first place, with the initial affirmation of the role of Parliament. 31
In this fashion, while in other historical experiences the democratic principle has been affirmed as a founding principle of nation-states or federations, here this appears rather as an identifying element of a European common ground, to be maintained as a common nucleus of identity.
c. Democracy Put to the Test of Court Politics
If now, however, we consider what constitutes institutional balance, a first methodological consideration imposes itself: given that we are considering a principle of judicial matrix characterized by a significant indeterminacy which gives it a flexible definition, the Court proceeds in part (in a manner of speaking) between highs and lows, following the path not only of specific individual cases, but also the institutional historic moment. It is therefore difficult to understand, due to these continual oscillations, how much the democratic principle is really at the heart of the Court’s interests.
Almost ten years after the Roquette Frères decision - years during which democratic argumentation has been omitted, at least explicitly, from the texts of Community decisions - the thesis of institutional balance has been picked up again, in an impetuous manner, by Advocate General Mancini, for whom consultation would constitute “the heart of the system of checks and balances upon which the Community constitutional order is based.”32 The specific case relates to a regulation on invalidity insurance whose procedural adoption later required further modifications in the opinion of the Parliament. The question was related therefore to the need to consult Parliament about the new amendments.
The procedure used, as Advocate General Mancini clearly points out, is anomalous, and all those involved recognized this, but in regards to the need to re-consult Parliament in cases like this, both legal literature and previous cases were unclear.33 Mancini’s scrupulous examination bring us to the conclusion that there was a breach of essential procedural requirement and that the norm that stipulates the consultation of Parliament must be considered, more as a substantive provision than a procedural one (as it allows Parliament to participate in the legislative process), and therefore subject to a rigorously restrictive interpretation.
The Advocate General thereby considers the examination of the decision concluded, and the aforementioned point invalid due to an infringement of an essential formality.
The politics adopted by the Court literally distort the foundation proposed by Mancini, disregarding the examination of the type of the breach of essential procedural requirements of the act and focusing only on the possible contrast with the principle of non-discrimination on the basis of nationality.
Perhaps the examination of the issue was particularly clear and the policy adopted by the Court has to be considered simply as the result of a choice in favor of the “easiest” solution, nevertheless it is somewhat difficult to explain the silence of the Community Judges on the point of a breach of essential procedural requirement of the act, above all if one compares this to the following case on Titanium Dioxide, of 11 June 1991.34
We are following the course of another historical turn in European integration: the entering into force of the Single European Act in 1987 confirmed the way - taken up by the same Court of Justice - focused on reinforcing the democratic principle in European decision-making processes, as is evidenced by the adoption of the procedure of cooperation and the extension of the qualified majority voting within the Council. This is clearly the context in which the Court’s decision on Titanium Dioxide must be placed.
The object of contention between the Commission and the Council relates to the choice of the legal basis for the adoption of the directive 89/428 that is oriented towards establishing the modality of the harmonization of programs to reduce pollution provoked by the refusal of certain industrial establishments and in order to improve competition in the production of titanium dioxide.35 Following the adoption of the Single Europe Act, the Commission proposed article 100A (95 Treaty of Nice) as a legal base, and Parliament, consulted in this regard, deemed the Commission’s choice appropriate. The Council, in voting instead adopted the directive on the basis of article 130 (157 Treaty of Nice) with the respective utilization of the procedure of unanimous voting. The Commission’s action for annulment of the directive on the basis of invalid legal basis (with the sustained intervention of Parliament) stems from these facts.
It is to be noted that Article 100 A relates to the harmonization measures of the Member States in order to constitute an internal market, whereas article 130 is a norm specifically directed to the environmental sector: the Court itself does not fail to notice that both positions relate to the issue at hand, but stresses in this case an obstacle to the possibility of simultaneously inserting two different foundations as the legal basis of the act. It is no novelty that in certain areas the goals of harmonizing overlap with specific sector norms and the issues would not be problematic if the procedures for adoption coincided, but this is precisely not the case. On the contrary, here the procedures are in clear opposition above all exactly from the point of view of the democratic principle. These two norms represent instead, two different democratic models implicit in the different modalities in the adoption of the act: Article 100A foresees the use of the cooperation procedure and qualified majority voting in the Council,36 whereas article 130 prescribes the unanimous voting of the Council, and previous consultation of the Parliament. According to the Court, applying the joint legal basis in a case of this type would result in altering the cooperation procedure, effectively requiring the adoption of a unanimous voting in the Council, and this:
“The very purpose of the cooperation procedure, which is to increase the involvement of the European Parliament in the legislative process of the Community, would thus be jeopardized.”37
Thus the Court concludes in a lapidary manner, excluding the possibility of possible recourse to the dual legal basis and opting for the legal basis of Article 100A, with the consequent nullity of directive n. 89/ 428.
The reading of the decision does not leave room for doubt: the choice of what procedure to adopt had much greater weight, in the Court’s reasoning, than issues of a textual nature related to competence. The Community judiciary, this time, clearly intends to respond to Advocate General Tesauro’s invitation, according to whom the issue should be considered on the procedural level, since this was the point along which the norms diverged in a fundamental manner. 38Tesauro, furthermore had underlined with particular emphasis the historical moment in which the case took place, that is, after the Single European Act entered into force, noting that:
“it is well known that the most important innovations introduced by the Single European Act include the extension of majority voting by the Council and reinforcement of the Parliament' s participation in the Community decision-making process, by means of the cooperation procedure. These innovations rank as principles since they are intended, respectively, to accelerate the process of Community integration and to strengthen the democratic safeguards attached to the legislative process.”39
On the basis of this reasoning, the General Advocate sustains the thesis according to which it would not be possible to opt for a restrictive interpretation of Article 100A, which by nature is at the heart of this historical evolution: if this were to happen, it would compromise the relaunching of the process of Community integration to come
“through greater recourse to faster decision-making procedures and the enhancement of democratic guarantees through more effective involvement of the Parliament in the legislative process.”40
In the Titanium Dioxide decision one can therefore see - at a procedural level - a sort of frontal battle between the affirmation of a (attempt at a) form of supranational democracy and the persistence of a typical “intergovernative” logic: certainly the decision is a strong sign that the unanimous voting (with its feared possibility of a single State’s veto) does not appear to please the Court a great deal, and can perhaps be read as the reaction to the Council’s persistent praxis eager to obstruct the new cooperation procedure. The issue is confirmed in the language of a recent decision, according to which, generally speaking:
“interpreting the areas subject to the procedure of joint decision broadly reinforces the participation of the Parliament in the legislative process of the European Union, and that participation reflects, within the Community, a fundamental democratic principle, that the peoples should take part in the exercise of power through the intermediary of a representative assembly”41
The two animating spirits of the Community’s decision-making process thus emerge with clarity in the case under consideration: the affirmations of Advocate General Mancini are thus exemplary, while limited specifically to the approval of the budget, clearly establish the fundamental difference in the Parliament’s and the Council’s position:
“The Parliament strategy is inspired by the history of Western institutions (…) and a basic forecast: the greater its influence in determining the budget becomes, the less resistible will be its request for new powers and, by the same token, for greater democracy in the Community system. For its part the Council points to realities which, although unpleasant, are scarcely contestable; (…) with the exception of the ECSC levies, it is still the Member States which gather them in and place them at the disposition of the Community. In brief, it is they who are in fact the taxpayers and it is therefore they who, through the institution which represent them, are entitled to the greater share of the decision-making power on the extent of expenditure.”
If this, perhaps in rather extreme terms, may be considered the representation of two Community spirits, returning to the case under consideration, the solution taken by the Court was quickly criticized by legal scholars for its (perhaps overly) political connotations: it seems to be oriented towards the goal of Community integration via the reinforcement of the democratic principle rather than towards a systematic analysis of the treaty and of the competences designated in it. 42 It is also unusual for the Court to privilege the general norm of article 100A so blatantly, despite the existence of an ad hoc norm in environmental issues. The Court’s “political” decision seems therefore undeniable and - with al the distinctions of the case - its position seems very distant from the preceding dialogue with Advocate Mancini in 1987. Perhaps this is a sign that the days are mature for Maastricht’s Treaty, confirming at a normative level the road taken by Community Judiciary. Perhaps, in the solution of the case the norm in question has come into sharper focus: Article 100 A, on which the legislative harmonization in the creation of a single market depends, a norm which is at the heart of Community interests.43 In effect, the disposition of 100 A is explicitly analyzed according to this directive, some years later, by Advocate General Saggio. In this case the importance of the disposition is expressly reiterated, making explicit the connection between Art. 100A and the democratic principle:
“the Council may, in accordance with the co-decision procedure set out in Article 189b, reach decisions by a qualified majority, thereby ensuring greater efficiency and democracy in the decision-making process.”44
The legal basis issue therefore becomes another battlefield - along with the guarantee of consultation procedure - for the affirmation of the democratic principle at the Community level: despite being an apparently technical problem, in essence this allows another angle from which to re-establish the institutional balance established in the Treaties, since opting for an ad hoc legal basis in order to avoid the invention of Parliament would clearly allow a violation of what could be called Community “constitutional design”. The choice of legal basis thereby works as a sort of functional guarantee, in the absence of other instruments of democratic control over the legislative process. 45
The highs and lows of the Court in the protection of the democratic principle are therefore diverse. For the sake of completeness we must also acknowledge two other decisions in which the Court does not follow the reasoning given by the Advocate Generals in favor of the protection of the democratic principle. These decisions would be extremely interesting in themselves given that the issue is the decision-making process in an “expanded” perspective, that is, including active participation of national parliaments. This time, the discussion turns on the horizontal direct effects of the directives and concerns a possible worsening of the democratic deficit in the arena of the Community legislation “where national parliaments are by-passed when directives are implemented.” 46But, yet again, the Court remained silent on this problematic in making its decision.
Therefore the path followed by the Court over these years is not a clear one, and the democratic problem is often confused with other reasoning, making it difficult to perceive the fundamental thinking in this matter on the part of the Community judiciary.47 After the historic Roquette Frères case, Advocate Generals have attempted on various occasions to bring reflection on the protection of democratic principle forward, but the Court has not always responded to the invitations in its conclusions in this regard.
To conclude and continue on to the next phase, a clarification regarding Parliament’s claim to the Court seems opportune: albeit the Community judiciary never writes the word “democracy” in its decisions on the capacity of the Parliament to bring an action for annulment in front of the Court, it has been sustained that even these cases could be considered part of this line of cases, due to their fundamental common motivation in favor of reinforcing the parliamentary role in the institutional design. It is in this sense that the decisions on the Parliament’s right of action - in the moment in which they seek to re-equilibrate the position of Parliament in regards to other powers in the procedural field - might be considered, albeit in a less direct manner, part of the democratic evolution of the Community government.48
And, yet, the omission of the word democracy in the aforementioned cases does not seem accidental:49 the nucleus of this creative law making locates itself on the particular sector of jurisdictional guarantee of parliamentary prerogatives and on the need to assure a coherent jurisdictional system, rather than on institutional balance in itself and the democratic principle. Such a position, furthermore, presents the advantage of preserving the nucleus of the theory of checks and balances that otherwise would risk finding itself constrained by a law created through the judicial system in spurts.
The consequences resulting from this case law, however, certainly come to bear on the future interinstitutional dialogue, and, therefore, on the evolution of the democratic process in Europe. The battle taken up by Parliament to obtain an extension of its right to intervene in proceeding before the Court can be easily explained by the fact that the conflict between institutions in front of the Court has become, over time, one of the central points of political discussion and to be excluded is synonymous with having little weight within Community affairs.50 It is not a coincidence that it was the direct election of European Parliament itself which opened the season of institutional conflict before the Court. As Advocate General Darmon makes clear, referring specifically to the representative assembly of the peoples:
“It must be pointed out that the cases involving the European Parliament arose almost entirely during the 1980s, after its election by direct universal suffrage. That does not mean that I am saying post hoc, ergo propter hoc . However, one cannot fail to note that the European Parliament’s desire to be more closely involved in the Community decision-making process acquired a new dimension with the impetus provided by its new legitimacy”.51
This is a fundamental point, because the possibility of really participating in the constitutive dialogue of the Community decision-making process will become, after Maastricht, the dominant note of the reasoning of the Court of Justice for the protection of democratic principle.
Let it be it noted, in conclusion, how these steps on the part of the Community judiciary on the action of European Parliament to the Court were then ratified in the subsequent Treaty, thereby recomposing that contrast between legislature and judge that the legal scholars and the same Court had highlighted as the first difficulty in the cases aforementioned.52
3. Consultation of Parliament after Maastricht: from Institutional Balance to Interinstitutional Dialogue
From the obligation of consultation to loyal cooperation in interinstitutional relations
As has been noted, the Maastricht Treaty marks a point of epochal development in the history of European integration, and this is reflected to a large extent even in the theme here under scrutiny.
In the period following this Treaty the tenor of decisions changes completely, and even the resolution of cases is not so predictable. It is certainly possible that the introduction in the Treaty of new cooperation and co-decision procedures influenced the change in the Court; these procedures on the one hand reinforced the position of Parliament within the decision-making process, while on the other they required the Community judge to delineate more clearly the outlines of what has been referred to by many authors as a procedural labyrinth, and thereby also provide a more precise image of the very procedure of consultation.53 From the following decisions it again emerges that the core of this case law on the democratic principle is focused on the protection of institutional balance, that the Court furthermore interprets in a new manner. There is a passage, in fact, to a type of scrutiny different from that formerly utilized by the Court, focused on examining the real state of the relationships amongst the individual institutions. No longer, therefore, a verification of the essential breach of law merely from an objective point of view, but also from a subjective one, implies a control of the overall behavior of the institution in the legislative process.
The consultation procedure is still at the center of the attention of the Community judge: however, also following the Maastricht Treaty’s entering into force, more than half of the acts in whose formulation Parliament participates are adopted with the aforementioned procedure that thereby remains central for the analysis of interinstitutional relations.54 And therefore, it is not by chance that, in a little less than six months, the Court intervenes at full tilt on this proceeding with a closed dialogue between judges and Advocate Generals. We are at the end of 1994, and the relationships amongst the individual institutions are put to the test in the light of the newly written norm.
Decision 65/9355 relates to a case in which the Council decides to adopt a regulation on the matter of preferential tariffs despite lacking parliamentary support, as it was evident that Parliament would never express itself on the subject before the expected coming into force of the regulation itself. The Council, in order to justify such a choice, based itself on the exceptional nature of the case, due to the fact that that act deals with the particular matter of previous international agreements of the Community’s, which must have added the urgency of making the aforementioned sector conform to the imminent introduction of the single market; furthermore, the Council declared that it had done all it could to obtain the opinion of Parliament.56
The Court’s response completes - or perhaps it would be better to say, furthers, the reasoning followed in previous cases concerning the adoption of the acts subject to the previous opinion of Parliament: in fact, after having recalled the essential nature of opinion in order to realize correct legislative procedure, the Court affirms:
“However, the Court has held that inter-institutional dialogue, on which the consultation procedure in particular is based, is subject to the same mutual duties of sincere cooperation as those which govern relations between Member States and the Community institutions.”57
Therefore, yet again, the reasoning pivots on institutional balance, but this time it is specified that we are not dealing with something of a static and defined nature, rather, it is achieved through a sort of reciprocal “good behavior” on the part of the institutions themselves. And the Court seems to indicate, in order to verify the loyal collaboration amongst institutions; its control may extend to the matters of their internal choices. It is not only question, therefore, of respecting individual norms related to the procedure (an objective approach), but also that of fulfilling the obligation of a sincere cooperation (a subjective approach). The closing remarks of the case on the part of the Community judge is noteworthy: Parliament’s claim is rejected as a sort of retaliation, as the Court considers that the lack of observance of the essential requirement of consulting Parliament is justified by the lack of observance on the part of that institution of its obligation to loyal cooperation with the Council. 58
The principle of loyal cooperation amongst Community institutions was originally born from the discipline of the budget approval. This area is particularly interesting in capturing the real state of interinstitutional relations and, therefore, for the realization of the democratic principle within the decision-making process: to tell the truth, it is rare in such cases for the Court to speak of democracy in an explicit manner, in part due to the technical nature of the matter, in part because the Community judges strongly heeds the limits of their own intervention in an issue of such an evident political nature.59 One can say that it is the very structure of the decision-making process in the budget affairs that is marked originally by a strict collaboration amongst institutions: according to the treaties, in fact, Commission, Council and Parliament should work together, and in particularly, this axis of strict collaboration is established between the so-called “budgetary authority” (Parliament and Council). To settle the possible interinstitutional contrasts in this arena, European Parliament, the Council and the Commission adopted a Common Declaration on June 30, 1982 (that, for its part, constitutes the result of an agreement in order to resolve in an extra-judiciary way a claim pending before the Court) where, for the first time in the history of the Community, the “harmonious cooperation between the institutions is essential to the smooth operation of the Communities” was established.60
Going back therefore to the merits of the case under scrutiny, the Court did not want to follow the more rigorous line proposed by Advocate General Tesauro, and also out-stepped him, in the end, on the very configuration of institutional balance. For the Advocate as well, the problematic aspect of the argument revolves around this point but, individuating in the Parliament’s opinion a norm of constitutional character, he affirms that it is not possible to intervene on the subject except in a legislative manner, that is to say, through the procedure of treaties revision.61
The constitutional aspect of the questions would therefore impede any alteration of the norm through creative law making, and in a categorical way.62 Although in the judgment one does not find any trace of this problematic raised in the Advocate General’s opinion, in reality this is a recurring concern, in a more or less explicit fashion, in many decisions of the Court, as it resounds a typical need of any democratic state, most commonly noted under the title of the (difficult) relationship between constitutional review and legislative discretion.63
A final question remains regarding the analysis of the case: to be honest, the regulation adopted by the Council was published in the Official Journal, owing to a major delay, after the meeting in which Parliament offered its opinion (with the connected requests for amendments). The Advocate sustains that it would be “strange” to allow Parliament’s delay as justification for the adoption of the act, and to then let it pass that a delay of administrative nature (the publication of the act) effectively made the urgency of the opinion irrelevant. For the Community judge the question has no relevance to the goals of the dispute of the facts, but for the reader, a question may arise: if, for the Court, the Council cannot be justly held accountable for the delays in publication and, therefore, for the anomalous procedure in the adoption of the act, who then is responsible?64
In this case one understands the general objection according to which it is not so much an issue of democratic deficit as the lack of participation on the part of the European peoples’ representative institution in the decision making process - and, in effect, all these cases reveal a dialogue, more or less halting, amongst the Community institutions - as a gap in the circuit that usually follows the decision-making process (as, for example the existence of control and responsibility mechanisms) that results in a “lack of completion in the democratic process circuit.”65
b. Politics and Law in the Community decision-making processes
The problematic raised in sentence 65/93 finds itself expanded, after a brief period of time, in two other judgments: the loyal cooperation amongst institutions, in facts, comes to situate itself, for its very nature, in a border area between politics and law and the judge in this case begins to question the convenience of his own intervention. In case 417/93 a regulation with the object of prolonging the so-called TACIS program (providing technical assistance for economic reforms taking place in States of the former Soviet Union) for another three years and extending it to the Mongolian State is discussed.
The European Parliament principally deplores the fact that even before asking its opinion on this act it was already on the agenda for the Council’s meetings and that the debate was thus in such an advanced state as to effectively make the consultation “a mere sham or fiction.” 66 This argument reechoes an evident unease of Parliament relating to the conduct of the Council which often and voluntarily seems to decide immediately, obtaining an opinion only in a pro forma manner, in reality having already taken a definitive position on the matter independent of parliamentary intervention. And effectively, even the Court perceives that in the seating of March 24, 1993, the Council found “a wide convergence of views within the Council”,67 despite later adding that a definitive position had to wait for the opinion of the Parliament. This last affirmation is enough for the Court to salvage the correctness of procedure, but well-founded suspicion emerges that in reality the wide-ranging political convergence in the Council seat may count much more than the subsequent re-examination after Parliament’s consultation. And it is this practice which, in the final analysis, is at the origin of Parliament’s claim:68 the Court, nevertheless, gives no weight to this order of motives and approves the conduct of the Council.
Less than a month afterwards, however, the Court intervenes in an opposite direction (case 21/94), annulling a directive on the matter of transportation due to the lack of re-consultation of the EP. 69
The Court resumes, above all, Advocate General Léger’s observation according to which consultation must be real; the Council’s defensive proposition in considering that it was already “sufficiently well informed as to the opinion of the Parliament on the essential points at issue” (par. 24) therefore cannot be accepted: in other words, it is not enough that the Council be aware of the Parliament’s opinion on the matter because, as affirmed also in previous cases, the right to be consulted constitutes a prerogative of the parliamentary body and therefore must develop according to the established procedures. To allow the Council’s thesis would lead, according to the Court, to:
“in seriously undermining that essential participation in the maintenance of the institutional balance intended by the Treaty and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in question.”
In this case the Court therefore comes to analyze the extreme hypothesis: if the decision making process is elastic70 and governed by a sincere cooperation by the parts, why not allow that the awareness of European Parliament’s desiderata can be enough to safeguard procedural correctness?71 The Court, perhaps, is beginning to fear that such a line of thinking could lead to a distortion of the norm of the consultation of European Parliament and that the democratic principle risks being trapped in this flexible consultation procedure.
And yet, the issue is not so obvious if after two years it is re-proposed in virtually the same terms, possibly an indicator of a real problematic within interinstitutional relations. Case 392/95 seems particularly interesting, also because of the matter it bears upon: in discussion is the adoption of regulation n. 2317/9572 that establishes the nationality of the citizens of third countries subject to visas in order to enter the external borders of Europe. The problem id decidedly one of the most argued in Europe and the impassioned intervention of a government (French) in support of the Council therefore does not surprise. This type of judgment in front of the Court has also been seen, over the course of the years, as a good showcase for the governments of Member States to illustrate and attempt to make their own position important in front of the Court and the other Community institutions.
In the specific case, Council adopted a regulation visibly different from the previous text without reconsulting Parliament, whose previous opinion was antithetical to the definitive regulation. Parliament’s action against the violation of an essential procedural requirement of an act inevitably followed.
First and foremost we must note the point that was fundamentally modified: the regulation’s initial text fixed a brief transitional period at the conclusion of which it would be necessary to establish a Community list, including all the third countries subject to visas, whereas the definitive text provides for an undetermined period in which each country would be able to have its own list in addition to the common one. The substantial modification of the act is therefore evident, as is the diverse nature of the interests that the institutions want to privilege: supranational and intergovernmental interests clash diametrically here, becoming almost a text-book case of the difference in the politics supported by the Council and that of Parliament. The thesis of the Council is, in its way, coherent, because it was “well aware”73 of the fact that Parliament preferred the preceding text with a brief transition period and the subsequent adoption at the supranational level of a mandatory list of countries subject to visas, it was unnecessary to re-consult Parliament.
The Advocate General Fennelly brings to light not only the divergences in the texts, but also the fact that the Council itself seems to openly admit the substantial modification in the act. The thesis of the Council, however, would be that in the moment in which it is clear on the Parliament’s opinion on the subject (whether it be in agreement with the Council or not), to proceed on to a new consultation would have the exclusive effect of delaying the adoption of the act. To sustain even in such cases the need for a re-consultation would turn parliamentary consultation into “a purely formal obligation”. 74 In these affirmations one can read in sharp relief Parliament’s real weakness, for the Council seems to allude to a tacit practice whereby, once a position is adopted within the Council, it is rarely willing to retrace its steps: one might also ask if the already cited complaint of Parliament (in regards to a consultation merely formal or fictitious) is not really founded. The Advocate’s opinion does not allow for a middle ground: to present the pretext of prior awareness of the point of view of Parliament in the matter is unacceptable and ends in denying the utility of the very procedure of consultation.75
In this regard, may it be noted that the Court of First Instance never intervened on the question of the obligation of consulting Parliament, except for two brief admonitions in cases of a more specifically technical nature that are traceable to such kind of issues. The first of these is from December 1, 1999 (joint cases 125/96 and 152/96) and explains, in part, the absence of this judiciary body from the disputes on the procedure of consultation. The case is related to an action for annulment of directive n. 96/22 on the part of pharmaceutical industries. One of the objections that the appellants pose to the Court in this case regards the modification of the act (namely, the adoption of a directive rather than a regulation) presented after the consultation of Parliament: the doubt that it concerned a modification of substantial nature seems, therefore, founded in some part. The Court, after having verified that modifications that could be considered substantial had not been added, examined the modification in the form of the act, considering that
“that amendment to the form of the measure does not any alteration in the actual substance of the text on which the Parliament was consulted (…) nor has it been called into question by the Parliament itself”
The affirmation is particularly interesting because it seems to allude to the fact that a violation of the obligation of consultation that is not claimed by the Parliament itself has no reason for existence. Which is to say, that if Parliament did not protest to the Court, it means (implicitly) that the modification was in line with its desires and, in line with previous cases before the Court of Justice, in such cases we are not dealing with a violation of the norm of parliamentary consultation. Which provokes a further question: the obligation of consultation is a requirement for legitimacy or a right at disposal of the Parliament?
The cases in question add another observation to this one, of no less importance, on the adequacy of the judicial instrument for solving interinstitutional conflicts: returning to the specific case, Advocate General Fennelly maintains, in effect, that there might exist cases in which the opinion of Parliament is:
“so clear that, at least politically speaking, it is well understood that the Parliament and the Council hold conflicting views, that fact would, on a legal level, be irrelevant.”
Thus, the issue of the limit of jurisdictional intervention returns in a new manner to this scenario: the Advocate General, in fact, seems to want to re-emphasize to the parties (and to the governments) the distinction between politics and law in cases pending before the Court and the indifference on the part of the judge to motivations of a political nature. It is clear that the evolution of this type of judgments on interinstitutional conflicts in the period following the adoption of the Maastricht Treaty has made the problem of excessive political interest emerge, but at the same time one may ask how separable the two fields really are in the cases in point. An intervention like that of the French government - which chose to underline “the politically sensitive nature of the process of determining the third countries whose nationals should be obliged to obtain visas”76 and to reiterate, in front of the Court, above all the need to adopt a determined political strategy (in the specific case, that of small successive interventions and a common minimum, but not exhaustive, list) - reveals the origin of the Court’s concerns, which correctly turns to stress the boundaries of its intervention in defense of the democratic principle.
In conclusion, one can affirm that the cases examined show clearly how in the cases under scrutiny various issues intersect in practice. The Court seems trapped between different needs, like the rigorous respect for the democratic principle or the admission of exceptions in order to avoid excessive burdens on procedure and subsequent legislative inefficiency. “To balance the tension between democracy-oriented value and that of efficiency”77 is a notoriously difficult and delicate affair (also at national level!). European Parliament has certainly not always given proof - at least in these cases - of responding punctually to the requests of the Council. And yet the Council, for its part, has incremented the adoption of a practice tending towards (in effect) minimizing parliamentary intervention.
The Court thus comes to assume an highly complex role in regards to the protection of democracy in the decision-making process: if, in fact, textual comparison (objective criteria) is no longer sufficient for resolving the contrasts amongst Community governing bodies but it is necessary to consider also the sincere interinstitutional cooperation (subjective criteria), maintaining institutional balance as outlined by the Treaties becomes an extremely delicate task. And yet it is precisely to the maintenance of institutional balance that the Court entrusts the guarantee of the democratic principle.
A final doubt: why, all things considered, should we insist on the principle of institutional balance when the situation (at least in the “real world”) so clearly favors the Council-Commission axis? Can the theory of checks and balances be truly efficacious in a context that differs so greatly from the classic examples where it is usually applied? The doubt remains, even if in the attempt at “parliamentarization” of the Union one cannot see what other instrument the Court could have used in order to reinforce the democratic tenor in the organization of powers.
4. The Court of First Instance and Participative Democracy, or the Functionalist Method in the Formation of Community Acts
If what we have thus far described is a decision-making process according to model which is, in general terms, comparable with the parliamentary one of federal States, we must also note the co-existence in the Community law of legislative processes that are highly distinguishable from such a method, characterized instead by a marked functionalist and sectional character: one of these processes was examined by the Community judge and obtained a decidedly interesting solution.
More precisely, the case that opened the season of interventions by the Court of First Instance in defense of the democratic principle concerns an action for annulment brought by a European association representing the interests of small and medium-sized undertakings at the European level (UEAPME) which was then joined by related associations from many other member States. At the origin of the claim there was the fact of not having been called to participate in the negotiations (ex. At. 4 of the Agreement on Social Politics) following which the directive 96/34 on parental leave was adopted: more precisely the aforementioned association protests the “infringement of its right to participate in the collective negotiation of framework agreements at European level.”78
This issue turns out to be a major one, because the act in question is the first to be adopted according to the new discipline provided for by the 1992 Agreement on Social Politics; and it is even more interesting if one considers that this rule was then incorporated - yet again it seems that judiciary and legislature proceed at the same pace - within the Treaty of Amsterdam.79 This particular form of normative production, furthermore, follows previous attempts at formalizing a process by which social parties could intervene in the formation of acts (see for example art. 118 of the Single European Act). And digging deeper for the origin of the rule, we come across the legal tradition of the Member States concerning the erga omnes extension of collective contracts, with the diverse evolution that the individual Member States then registered. The problematic in questions falls, therefore, within the field of a form of legislative production of a neo-corporative type in which the first agents of the process are the workers’ unions and employers’ associations.
In this case, one can easily say that the adjective “alternative” that the tribunal uses in describing the formation of the acts takes on a double meaning: on the one hand, it indicates the substitutive decision-making process for the social politics sector, on the other hand it also indicates a certain critical connotation representing the unusual nature of the affair, its special nature.80
The problematic aspect that the Social Politics Act of 1992 raises concerns the fact that in this specific sector not only can the Commission promote the consultation of the social parties at the Community level (art. 3), but the social parties themselves have the possibility of proposing (within such consultations) the start of the procedure as provided for in art. 4. Any agreements established amongst the aforementioned social parties, if voted by the Council (by a qualified majority or unanimously depending on the matter), can then lead to a legislative act.
If this is in a few words, the legal context, one can nevertheless, along broad lines isolate similarities and differences in regards to the ordinary legislative process. In a certain sense one can, in fact, say that the proposal always originates with the Commission, or better said, it begins on the Commission’s initiative. The social parties, for their part, can take control of the process only within the consultations initiated by the Community institution directed towards a possible Community action in the sector. Therefore, technically, there is a certain analogy with the Commission’s right to legislative initiative. The difference, however, immediately appears because the act takes its form from the agreements of the social parties, and to these the Community institutions cannot affix amendments, but only reject or approve them (more precisely, the final approval of the text is the Council’s duty): this final passage is fundamental because it makes it such that the act assumes a binding form. One could say, in conclusion, that the opening and closing of the process is a competence of the Community institutions.
Significant absence: Parliament.
Major players, instead, are the social parties. And here opens the sore point of the affair, which is the origin of the complaints, because the associations initially consulted by the Commission do not necessarily take part in the following phase of the negotiations as well. And even if the Commission has instituted a list (constantly updated) of associations that satisfy the criteria of representativity, in practice those associations that ask the Commission to utilize procedure ex art. 4 can keep the others out. The Commission, however, affirms that it is not its task to decide who should participate in the negotiations, considering it an internal issue for the social parties themselves.
In the specific case in question the negotiations were initiated and held by three associations, UNICE (Union of the Confederation of Industry and Employers of Europe), CEEP (European Center for Public Enterprise), and CES (European Confederation of Unions, together with its related unions). UEAPME claims, for its part, not only its greater representativity in regards to small and mid-sized businesses, but also the fact that in the Commission’s 1993 Communication on the Application of the Agreement on Social Politics, it had been recognized as a representative association, from which fact it should have been able to achieve its right to participate in the negotiations. In brief, UEAPME complains that, despite having participated in the consultation, it was later systematically excluded from the negotiating phase of the act.81
This is, in synthesis, the case and the questions that it poses to the democratic principle are numerous and relevant. The fundamental point around which the case revolved around is that of the representativity of those signing the agreement, because it is their job to substitute - if one can put it this way - Parliament’s intervention in the classic decision-making process: and this point, as we also know from the analysis of the Court’s case law, is particularly delicate, because it absolves the task of permitting the participation of the peoples of the Member States in the Community decision-making. This element thus becomes a sort of essential requirement, in the absence of which the process cannot be considered equivalent to the ordinary legislative one (with all the related consequences on the democratic nature of that process). 82
However, this affirmation goes to the heart of democratic principle: in order to talk about democracy, the first requirement is that the derivation of authority from popular will must be - in some way - constantly reevaluated. Classical legal literature has long indicated that the distinctive point for the construction of a democratic system is represented by the so-called “ununterbrochene demokratische Legitimationskette”, 83that is, that a sort of “backwards” legitimization must be constantly recovered which, together with the operating of further juridical devices, makes possible and effectively maintains a continuous relationship between public action and citizens. Thus it is not by chance that Sartori emphasized how it is the very “cinghie di trasmissione del potere”84, that is all those instruments set up in order for the people to be able to influence the decision-making process - like elections and representation - that constitute the decisive channel of every democratic organization. If all the passages of conversion of power from low to high are not respected, a democratic deficit in the process of formal legitimization is inevitable.
How does the Court respond to this provocation on the representativity of the associations that stipulated the act?
The Community judiciary utilizes the criterion of sufficient cumulative representativity. According this criterion, it is not necessary that a given association be representative in itself, but it is enough that the set of associations, taken as a whole, reaches a sufficient level of representativity: and here, it is important to note that what is required is precisely, a sufficient level, not an absolute one. And to separate the question of what can be considered “sufficient” the Tribunal adds that the number can be considered but that it “cannot be regarded as decisive”;85 for the Court, instead, a factor of greater importance seems to be the fact that the representativity of the partiers be considered in relationship to the contents of the agreement, an unusual, if not dangerous, affirmation, because it means measuring representativity on the basis of a single (sectarian) interest.86 And in general, in regards to this problematic, the warning of legal scholars on the possible risk for the democratic principle of excessive slipping “from government to governance” is always important.87
The Court concludes its examination observing that the associations participating in the process of the formation of the act possess a cumulative representativity sufficient in the light of the contents of the framework agreement, keeping in mind the fact that they were cross-industry organizations and with a mandate of general nature.88 To tell the truth, without going into details of the labour law field, a preliminary reading of the judgment shows that the verification of the criteria for satisfying the representativity of the businesses is still an unclear matter in positive and terms and jurisprudential ones.89 The decision initiates, therefore, more than one doubt in relation to the respect of democratic principle and the possibility to compare this procedure with the ordinary legislative one. According to the Court, in fact:
“the principle of democracy on which the Union is founded requires - in the absence of the participation of the European Parliament in the legislative process - that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement which is endowed by the Council, acting on a qualified majority, on a proposal from the Commission, with a legislative foundation at Community level.”90
But if it is really like this, in the final analysis, it is unclear by what means associations equally representative to those signing and recognized by the Commission can be excluded from the list of those social parties formally admissible in the negotiations. If the point is an equivalence of the processes based on the concept of representation (and if this aspect is fundamental in guaranteeing the democratic principle), it is not clear why it would be employed in a declining manner, allowing a minimum level of representation: assuming a minimum level is reached, since in this case one might also wonder if all the workers are really represented in the act in question. An observation on the general nature of neocorporative procedures at the Community level is therefore opportune: this procedure “doesn’t replace Parliament and other institutions and processes of pluralist democratic government, but simply side-steps them in reaching the fundamental public choices of the polity.” 91
Here, therefore the debate in regards democracy gets complicated: on the one hand, in fact, the process was conceived in function of a expanded participation by subjects that are external (but extremely interested) to the classical decision-making circuit, while on the other the Court itself seems reluctant to completely abandon the logic of representative democracy and its partial application to the case in point ends up confusing the plans. If the democratic nature of the process is founded on the role of social parties, the question of which subjects are allowed to participate remains open. In other words, the problem shifts to the criteria of representation admitted within a form of participative democracy. Perhaps, it seems possible to say, it would be simpler to maintain a greater distinction in the plans of representative and participative democracy and see them as complements rather than alternatives.92
These affirmations intend to be critical neither in regards to the dialogue with the social parties, nor to question the utility of such a process. Nevertheless, it seems to point out a certain difference between the historical origin and the (actual) function of the social dialogue at the European level93 and the affirmation according to which such procedures can be considered a surrogate for the ordinary legislative process.
A final observation: the task of verifying sufficient representativity for the Commission and the Council (and potentially for the Court) is therefore arduous, because the protection of the democratic principle depends on it.94 The breadth of the examination can certainly be justified by the delicate nature of the matter, and at the same time the issue is not without problems: the Council in fact has expressed doubts on the depth of the Court’s intervention in one arena, namely that of social policy, in which the Council enjoys legislative discretion and the very social parties might fear for their own autonomy.95 One thus wonders if issues of this nature find their proper interlocutor in the judiciary.
Instead, the intervention of the Court does not seem to raise problems in two other related cases concerning a possible application of participative democracy. One is the Atlanta AG judgment of the Court of First Instance (and the consequent appeal to the Court of Justice), judgments that form part of the well known “banana saga”.96 The aspect that stands out in this case is the appellants’ attempt to claim a violation of defensive rights as the result of not having been consulted in the Community legislative process. It was easy for the Court to show that the only consultation requirements that the Community legislator must respect are those provided for by Treaty: it is still interesting to note how the parties attempt to base their right to be heard on the transposition of the right typical of administrative processes (especially in the antitrust field) within the Community decision-making, which is perhaps an indicator of a legislative process seen as more open in comparison with the national ones, but may also be a real need for greater participation in an arena that for its nature is more distant that the national one.97 But the Court retorts that:
“the Commission was under no further obligation to consult the various categories of traders concerned by the Community market in bananas. It is quite feasible for the Community legislature to take into consideration the particular situation of distinct categories of traders without hearing them all individually.”98
In this case both the Court of First Instance and the Court of Justice re-emphasize the ordinary legislative nature of the process, that does not allow the use of other types of procedures within it.99 The Community judge is particularly clear on the prohibition of analogies even in a case in which the parties tried to expand the obligation of consultation to bodies other than Parliament: within the complex affair on State aid to an Irish business, the appellant had recalled the fact that the Commission, after having regularly requested the opinion of the Consulting Committee in the senses of art. 95, had issued the definitive decision with a few modification without the Committee being consulted again. The analogy with the consultation procedure of the Parliament, in this case as well, is sharply refuted by the First Tribunal.100
5. Conclusions in perspective: not a democracy, but elements of democracy
If this is the conclusion per Scharpf’s analysis,101 the question on the current state of the European democratic regime is still open.
The present analysis has shown in broad lines the path followed by the Court of Justice: the starting point for the democratization of the Community decision-making process was the strengthening of the Parliament’s position, thus following (or anticipating) the general process of “parliamentarization” of institutional balance also in progress at the institutional level.102 This was, perhaps the most immediately accessible path in starting to fill the gap in the clearly seen democratic deficit within the Community structure, and, in a certain sense, the inevitable consequence of the process of integrating States.103 However this choice was not a foregone conclusion: in fact, as we mentioned at the beginning of this analysis, the BVerfG in the Maastricht Urteil focused its attention on the role of the Council in order to found the democratic nature of the community decision-making, whereas the Court of Justice stresses the Parliament’s role for the democratization process of the European Union system.
At the same time, the evolution of the parliamentary institution, with its highs and lows, is certainly not considered the final point of the process of Community democratization but other possible alternatives have been examined, considering decisional circuits “similar” to representative ones.104 And if these last decisional processes seem to underline the functionalist spirit of the Community structure - with the shifting of the decision-making axis in favor of autonomous bodies of a technical-economic nature - in the opposite way, the strengthening of the parliamentary role would make a federal evolution (already in progress) emerge: these two distant spirits manage to cohabit without problems in the Court of Justice’s cases.
At the moment, instead, the Court does not linger much - except in rhetoric - on the problematic of popular representation but, rather, focuses its attention on the principle of institutional balance limiting, in the end, the democratic process area within the boundaries of the institutional relationships.105 Whether this is all that constitutes democracy is an open question. Even staying within the same thesis of institutional balance, the Court is constrained to scale a slippery wall, for it is difficult to reason on the separation of powers in the presence of balances which are still so unstable: the Community system presents itself, in fact, far from defined, it is dynamically in evolution. To attempt to hold onto a coherent line in this system seems like an arduous task, and one wonders if such a task is even the responsibility of the Court.106 In this sense it will be interesting to follow the development of this great jurisprudential thread, because in this arena one can more easily grasp the possible political role of the Court, an issue that brings us back to a typical problematic from the last part of this century, particularly in regards to constitutional review.107
From the analysis of the judgments furthermore, one cannot grasp how much this principle has already started to become part of the Community’s genetic map and how much it should still be considered as “prolonging” the constitutional traditions of the member States. Nevertheless the examination of Community case law has allowed us to grasp a real effort of the Court - the motor of Community integration par excellence - in order to highlight of the possible instruments aimed at guaranteed a democratic decision-making process in Europe. It will then be interesting to see if a recent statement by General Attorney Mischo in regards to the European Charter of fundamental rights will be confirmed also by the Court of Justice:
“The Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order.”108
A celebratory statement on style or a judgment on the method of the Convention as a possible road for a more democratic decision-making process?
Yet again the dimension of the concrete case and the institutional one overlap, and with these two, the historical moment. Certainly the procedure utilized in the formulation of the Charter is new, and clearly distances itself from the method of the intergovernative conferences in the sense of privileging the democratic components in the process of the formation of an act: there are, however, those who have pointed out critically that with this, yet again, no attention has been paid to “European democracy” but rather to creating a European system for safeguarding rights. In a manner that is perhaps overly pessimistic and limited to the individual case, one could also repeat with Fioravanti that “con la Carta i diritti si candidano sempre di più a collocarsi sul piano sovranazionale, ed a beneficiare di modi di tutela che sempre più sono concordati sul piano sovranazionale, mentre la democrazia sembra essere condannata, quasi per sua natura, a rimanere ancorata alla dimensione nazionale, come se contenesse qualcosa di difficilmente allontanabile dall’origine.”109
In addition, it is evident that the constitutional traditions common to the member States have influenced the Community evolution much less in regards to public organization than in regards to fundamental rights. Where there has always been - be it in a jurisprudential or a positive manner - a direct reciprocal influence between the two levels of protection of fundamental rights, organization have suffered from its international origin, thus remaining safe from possible interferences from the national level. The fact that the debate on democracy has begun to invade the territory of international organizations, can be explained, as a perceptive German internationalist notes, in the evolutionary parable of international law, starting from the affirmation of rights but noting an ever more pressing “invocatio der Demokratie.” In other words, one starts with rights and ends up (perhaps) in public organization.110
Today as never before, the issue of the democratic status of the European Union appears to be in evolution, proceeding by approximations, almost drawing closer to an ideal which, like democracy is always improvable.111