How Do Our Judges Conceive of Democracy?



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Dahl R. A., A Democratic Dilemma: System Effectiveness versus Citizen Participation, Pol. Sc. Quart., 1994, 31-32.

2 The doubt that the German Constitutional Court displays in regard to the violation of the democratic principle in the process of Community integration stems from the original terms of the Brussels forms of government and from the fact that European Parliament is not capable of substituting - at least at the moment - the functions assumed by national parliaments: “Damit würden das demokratische Prinzip und das Erfordernis der Gesetzmäßigkeit der Verwaltung in ihr Gegenteil verkehrt, weil die Verwaltung, die die Gesetze vollziehe, sich die Gesetze selbst gebe.” BVerfGE 89, 155 (166). It’s interesting to stress, also, the particularity of this judgment, since it was a Verfassungsbeschwerde, i. e. a direct claim of a german citizen assuming the violation of the democratic principle.

3 ECHR, February 18, 1999, Matthews v. United Kingdom, par. 48

4 Id., to par. 52; the same judgment concludes: “The Court thus finds that the European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Articles 189b and 189c of the EC Treaty, and is  sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the ‘legislature’ of Gibraltar for the purposes of Article 3 of Protocol No. 1.” (par. 54)

5 According to Ress G., Democratic Decision-Making in the European Union and the Role of the European Parliament, in Curtin D. e Heukels T., Institutional Dynamics of European Integration, Essays in honour of H. G. Schermers,Vol. II, Dordrecht, Martinus Nijhoff Publishers, 1994, 159, the role of the parliamentary body in representing the peoples and the respect for the separation of powers are the basis of democracy, in that diverse juridical traditions assimilated these attributes in different ways.

6 It will be clear in our analysis that the European Court of Justice is particularly aware of the historical context within which a given controversy inserts itself. This statement corresponds to an observation of a general nature according to which “our very concern with democracy and legitimacy cannot be considered in isolation from the integration forces which have generated and shaped the community” (Craig p. e De Burca G., The Evolution of EU Law, Oxford University Press, Oxford, 1999, 50).

7 That the Court may be numbered among so called political subjects is similarly a well-known problem for the Member States: let’s give an example. In 1992, the text of the Maastricht Treaty was debated in Germany in front of the Bundestag in the course of planned ratification procedures and was ratified by a wide majority of delegates: thus, there did not appear to be significant obstacles to a tighter European integration in German territory. Later, however, it was learned that the Bundesverfassungsgericht was occupied with the Treaty, considering a direct constitutionality action (Verfassungsbeschwerde), and at that point, the President of the Federal German Republic decided to suspend the ratification procedure and await the Court’s decision. What can we learn from this case? That, if we want to really enter into the merits of the democratic debate in Europe, judiciary power appears to be, at least at the moment (and if you will, paradoxically), a privileged interlocutor, a concrete starting point for understanding the affirmation of democratic principle in European integration. And in fact one may note how the intervention of jurisdictional power in this arena may be strongly required, and above all in the workings of the Parliamentary body, thus revealing an “institutional” dimension in the concrete case. We should also add that such an intervention is not only appreciated by other institutions, but in a certain sense is requested by the very nature of the ambitious integration program that in order to succeed needs the support of all the governing bodies, not excluding the judiciary: Zuleeg M., Demokratie durch Rechtsprechung, in Krämer l., Micklitz H.-W. e Tonner K. (eds.), Law and Diffuse Interests in the European Legal Order, Liber amicorum Norbert Reich, 1997, 1: “die Idee, die rechtssprenchende Gewalt für ein öffentliches Interesse nutzbar zu machen, drängt sich auf.” Dehousse R., Integration Through Law Revisited: Some Thoughts on the Juridification of the European Political Process, in Snyder F. (eds.), The Europeanisation of Law: the Legal Effects of European Integration, Oxford, Hart Publishing, 2000, 20: “To an increasing extent, the ECJ has thus been called to set itself up as an arbiter of institutional conflicts, something that naturally exposes it to more sustained attention by political actors and public opinion.”

8 For a critique of the utilization of the parliamentary model for European government, see Dehousse R., Constitutional Reform in the European Community: Are There Alternatives to the Majoritarian Avenue, in Hayward J., The Crisis of Representation in Europe, F. Cass Ed., London, 1995, 134: “this model, because of its majoritarian aspects, is ill-adapted to the needs of a hybrid creature like the EC, characterised by great diversity and by strong national feelings.” For an accurate analysis of European Parliamentalism today see Dann P., Looking through the Federal Lens: The Semi-parliamentary Democracy of the EU, Jean Monnet Working Paper 5/02, in particular in the moment in which he contends that the special form of parliamentary democracy that exists today in Europea must be read within the structure of executive federalism, according to “This system of an executive federalism, shaped most fundamentally by its interwoven competencies, entails a need for executive cooperation and consensual decision-making.” (45).

9 This is the case, for example, in a decision by the Court regarding the resolution of Parliament on the seat of institutions and the principal place of work on the same, in which this body justifies the adoption of the contested act “on the grounds of the increase in its workload and its democratic responsibility, especially since the entry into force of the Single European Act” (Judgment of the Court of 28 November 1991, Luxembourg v. European Parliament, Joined cases 213/88 e C-39/89). The decisions appears interesting in regards to institutional conflicts and it was preceded by a series of cases on similar issues, in which the Court clarified the outlines of the reciprocal rights and obligations amongst institutions and Member States: see judgment of the Court of 10 February 1983, Luxembourg v. European Parliament, Case 230/81; judgment of the Court of 10 April 1984, Luxembourg v. European Parliament, Case 108/83.

10 See Opinion of the Court of 10 April 1992, pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty, Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, par. V.

11This hypothetical alliance between Parliament and the Court of Justice is confirmed, in particular, by Mancini F., Democracy and the European Court of Justice, in Id., Democracy and Constitutionalism in European Union, Hart Publishing, Oxford, 2000, where, however, it is normally the Court-Commission axis which is underlined, as a critique to Mancini, see Harlow C., Citizen Access to Political Power in the European Union, EUI 99/2.

12 Amato G., Costituzione europea e Parlamenti, Nomos, 2002, 13.

13 Of this nature is the critique (shared by others) of Ieraci G., Contemporary Democracies. A Dichotomous Pattern for Comparative Politics, Quad. Sc. Pol., 2/2002, 258 ss., on the analysis of the form of European government as developed, for example, by Lijphart A., Patterns of Democracy. Government Forms and Performance in Thirty-Six Countries, New Haven – London, Yale University Press, 1999, 42 ss. Lijphart inserts the European model into the category of consensual democracies with two legislative branches (Council and Parliament) and an executive branch (Commission) within a context destined to become federal. In regards to the utilization of the consensual model for European democracy it is also interesting to recall the criticism of Harlow: “This is, however, the consensus of diplomacy. If we define a consensual democracy as one in which the question ‘Who governs?’ receives the reply ‘As many people as possible!’, then Europe is not on course.” (Harlow C., Citizen Access to Political Power in the European Union, cit.).

14 Lastly, Kirchhof P., Die Gewaltenbalance zwischen staatlichen und europäischen Organen, Paper of 5. 25. 1998 at the Humboldt Universität of Berlin, in FCE 2/98; see also Kirchhof P., Der deutsche Staat im Prozeß der europäischen Integration, in Isensee/Kirchhof, Hdb. des Staatsrechts, 1992, 855 ss.

15 Preuss U., The Constitution of a European Democracy and the Role of the Nation State, Ratio Iuris, 4/1999, 418: “Although a general consent of the national parliaments to the transfer of sovereignty to the Community has been given in the past through ratification of the EC Treaty and its numerous amendments, this is hardly sufficient for democratic legitimation of the huge number of regulations which are issued by the Community’s organs.” Thus Amato G., Costituzione europea e Parlamenti, cit., 15, urges us to propose an alternative—at the national level—to the use of the law of ratification: “Quando si ratificano i trattati internazionali, in genere si ratificano quelli che disciplinano le relazioni esterne. Quando si ratifica una modifica dei trattati comunitari non si ratifica una decisione che attiene alle relazioni esterne, ma una decisione che attiene al governo degli affari interni. Il processo di ratifica così come è congegnato è allora del tutto inadatto ad assicurare ai Parlamenti il ruolo che ad essi spetta rispetto agli affari interni. (...) Più andiamo avanti, quindi, più ci accorgiamo che qui abbiamo bisogno di qualcosa che deve andare – comunque chiamiamo i trattati comunitari – il più possibile nella direzione dei procedimenti di revisione costituzionale.”

This observation becomes more and more urgent at the current stage of European evolution: with the enlargement, in fact, European Union would risk being “blackmailed” by the ratification acts of every single member state: See Wallace W. and Smith J., Democracy or Technocracy? European Integration and the Problem of Popular Consent, in Hayward J., The Crisis of Representation in Europe, F. Cass Ed., London, 1995, 154.



16 More precisely, Blondel J. and Battegazzorre F., «Majoritarian» and «Consensus» Parliamentary democracies: a Convergence towards «Cooperative Majoritarianism»?, Quad. Sc. Pol. 2/2002, 251, observe: “Specifically, the influence of the ‘Europeanisation’ process can only have the effect of reducing further in the future hitherto strongly-felt division within the individual States of the Union and thus lead governments in each country to seek arrangements with other political and social forces in order to strengthen their position vis-à-vis the governments of other member states.”. According to the authors such a trend unequivocally favours a trend among Western European governments to shift towards forms of cooperative majoritarian democracy. Analogously Chrissochoou D., Democracy and Symbiosis in the European Union: Toward a Confederal Consociation?, West European Politics, 1994, 3, point out that “The new ‘politics of symbiosis’ – itself an essential reinforcement of the system’s consociational character – has further facilitated the recentralisation of national governmental power in favour of executive-centred elites and, inevitably, at the expense of traditional representative institutions which find it all more difficult to sustain sufficient levels of political responsibility over their respective executive agents.”

If this reading is correct, one could read it as a sign of the federalization of the European Union since, as affirmed by Díez-Picazo L. M., What does it mean to be a State within the European Union?, Riv. It. Dir. Pubbl. Com., 2002, 655 “the normal situation in contemporary experiences of federalism is that belonging to the federation involves a notable constraint on the political structure of the component units”. And this would happen, furthermore, in a sui generis fashion (by an osmotic process) because it would be precisely the absence in the Treaties of a norm on the political structure of Member States that would distance the latter from the classical federal constitutions, that, instead, albeit in a general way, always include a clause on the matter: as seen in art.4, c. 4 of the U.S. Constitution and art. 28 of the Grundgesetz. Thus the emphasis of Pernice is extremely interesting, according to which art. 6 of the Treaty would be “requirement of a minimum constitutional homogeneity in the Member States, comparable to that of Art. 28 (1) of the German Constitution concerning the constitutional order of the Länder” (Pernice I. Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making revisited?, CMLR, 1999, 726).



17 That the level of democracy of the Member States of the Union be considered with different criteria and parameters is analyzed in a study by Cannizzaro V., Integrazione Europea e Democrazia degli Stati Membri, in Amorosino/Morbidelli/Morisi, Istituzioni Mercato e Democrazia, Liber Amicorum Predieri, particularly 79.

18 While the case (de facto) is unique, there are two decisions, corresponding to two identical claims, one on behalf of Germany and one by France: Judgment of the Court of 29 October 1980, SA Roquette Freres v Council of the European Communities, Case C-138/79, ECR, 1980, 3333, and Judgment of the Court of 29 October 1980, Maizena GmbH v Council of the European Communities, Case C-139/79, ECR, 1980, 3393. This issue was not new for the Court of Justice which has just declared invalid a preceding regulation of the Council’s on the matter: (Judgment of the Court of 25 October 1978, Royal Sholten Honig Ltd et al v Council of the European Communities, Joined Cases n. 103 e 145/77, followed by the declaration of nullity of regulation n. 1111/1977) giving to the same body the task of adopting all the necessary provision and assuring the good functioning of the sweeteners’ market. Within a few months, in order to cover the normative gap, the procedure for generating a new regulation was reactivated, and the case cited developed from this procedure.

th Opinion of Mr. Advocate General Reischl delivered on 18 September 1980, Case 138-139/79, ECR 1980, 3363, 3375. Since Parliament is the only body not admitted to participate in the Council’s sessions, one can understand how the procedure of consultation becomes an indispensable instrument in order to make possible the participation of the European peoples (represented in Parliament) in the formation of the acts. For a reduction of the scope of this judgment, see Beutler B., Anmerkung (EuGH 138-139/79), EuR, 1981, 58, who recognizes the important of this judgment on the part of the Court in order to consolidate the democratic principle in the Community Organization, but who points out however that the consequences that this body can extract from this affirmations are, in any case, limited: “In der Auseinandersetzung um die grundsätzliche Positionsbestimmung des Parlaments hat die Entscheidung des Gerichtshofes insoweit eher die Bedeutung der rechtlichen Bestätigung einer vom Parlament gefordeten Mindestposition”. On the essentiality of such a violation, not without a critical streak, see Hartley T., Consulting the European Parliament, E. L. R., 1981, 183.

19 This conception recalls the so-called. Madisionian democracy, that corresponds to an “effort to bring off a compromise between the power of majorities and the power of minorities, between the political equality of all adult citizens on the one side, and the desire to limit their sovereignty on the other.” (Dahl R. A., A Preface to democratic Theory, Chicago, The University of Chicago Press, 1956, 4).

20 Opinion of Mr Advocate General L. A. Geelhoed, delivered on 10 September 2002, Imperial Tobacco Limited v Secretary of State for Health, Case C-491/01, par. 179. Thus the Advocate General continues on noting that with the choice for the co-decision procedure “the most stringent adoption procedure was chosen by which account may be taken of as many interests as possible. Considered from the aspect of institutional balance: if there is any procedure in Community law which is designed to achieve an optimum balance between different authorities that would appear to me to be the co-decision procedure.” (par. 180)

21 Democratic principle is a constitutional principle common to all European States, whereby it is worth considering the Community principle even prior to its express introduction into the Treaties: on this, see Ress G., Democratic Decision-Making in the European Union and the Role of the European Parliament, cit., 157 and, identically, Mancini G. F. e Keeling D. T., Democracy and the European Court of Justice, The Modern Law Review, 1994, 179, which further specifies: “There are of course limits on how far the Court may go with such an approach. It could hardly have invented a European Parliament if none was provided for in the Treaty. But since there was a provision in the Treaty – however limited – for a representative assembly to participate in the legislative process, the Court was able to stress the importance of the democratic element, elevate it to the status of a fundamental principle and strike down legislation not sanctified with even a whiff of democratic legitimacy.”

22 Weiler J. H. H., European Democracy and the Principle of Constitutional Tolerance: the Soul of Europe, in Cerutti F. and Rudolph E. (ed.), A Soul for Europe, Peeters Leuven – Sterling, Virginia, 2001, notes suggestively how “this fateful decision, welcome for its respect for the distinct identity and cultural and political richness of the States and nations which make up Europe, is at the source of the Union’s democratic dilemma”. Zuleeg M., Demokratie und Wirtschaftsverfassung in der Rechtssprechung des Europäischen Gerichtshofs, EuR, 1982, 22, further holds that the participation of the peoples via their own representatives is not indicative of the judiciary’s wanting to remake itself according to the vision of classical representative democracy: “Die «Völker» lassen sich in diesem Zusammenhang als Inbegriff derer auffassen, die von der Gemeinschaftsgewalt betroffen sind. Ihnen steht die Beteiligung an der Ausübung hoheitlicher Gewalt zu.”

23 More precisely the thesis of Zuleeg M., Demokratie in der europäischen Gemeinschaft, JZ, 1993, 1071, starts with the affirmation of a so-called “negative demokratische Kompetenz” of the EP: “Da ein Volk in Europa noch nicht besteht, sind die Einrichtung des EPs, seine unmittelbare Wahl durch die Völker der Mitgliedstaaten angeblich nur als Geste des guten Willens, als Reverenz an das demokratische Prinzip zu begreifen. Die verfassungsrechtliche Bedeutung des EPs sei daher gegenwärtig „en quelque façon nulle“. Ihm komme eine „negative demokratische Kompetenz“ zu, selbst anch dem Vertrag von Maastricht.” As a consequence, Zuleeg considers that the idea of hidden democracy in such an institutional configuration is rather that of a participative and non a representative nature: “Wer sich einer Hoheitsgewalt beugen muss, soll zumindest daran beteiligt sein, diejenigen zu bestimmen, die über ihn Hoheitsgewalt ausüben. Der selbstverantwortliche und selbstbestimmte Mensch ist die Richtschnur dieses Demokratieverständnisses (1072).

24 In greater depth, Curtin D. M., Postnational Democracy, Kluwer Law International, Boston, 1997, 45, observes: “much more serious than a lack of parliamentary representation at whatever level should prove most appropriate to the type of decision-making. Coming closer to the heart of the matter, we find there is a further deficit and this time at the level of the separation of powers and in particular the enormous empowerment of the executive which has been the very concrete result of the European integration.” Thus, too, one understands the recall to not separate potential reflections on the democratic theses applied to the European system from the origin of this order; Craig observes that if the domination of the Member States and of the Council, the impotence of the EP(at least until 1986) and the lack of transparency en participation make one think of a top-down (if not elitist) vision of democracy à la Schumpeter, nevertheless such characteristics are a natural consequence of the fact that the EU was initially created by States, and it is therefore natural that they have more power. (Craig P., Democracy and Rulemaking within the EC: an Empirical and Normative Assessment, in Craig/Harlow, Lawmaking in the European Union, London, Kluwer Law, 1998, 60). The preponderance of the Council is certainly the source of complication from the point of view of the democratic principle, because it represents States and not the people, by which a democratic legitimization passes though a mediated form. See Weiler J. H. H., Problems of Legitimacy in Post 1992 Europe, Aussenwirtschaft, 1991, 411 ss.: also on this point Bieber R., Democratization of the European Community through the European Parliament, Aussenwirtschaft, 1991, 164.

25 For an extensive development of this point see, (in regards to the IGC of 1996) De Burca G., The Quest for Legitimacy in the European Union, Modern Law R., 1996, 349 ss. De Burca brings to light (365 ss.) how the proposals on the issue of the democratization of Europe are truly diverse, sometimes in opposite directions: primarily one can individuate a supranational vision (federal) – that emphasizes the role of European Parliament and wants to strengthen the fields of intervention of the Court of Justice – and an intergovernmental - confederational ideal underlining the unanimous vote and the consequent role of the Council in negotiations. But there are many other currents (like the functionalist-regulative one that hopes for a greater role for independent agencies).
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