How Do Our Judges Conceive of Democracy?

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26 According to Craig P., Democracy and Rulemaking within the EC: an Empirical and Normative Assessment, cit., 43, this formula could be read as a rhetorical affirmation that allows the community to proceed in an incremental way. Craig, instead, suggests taking this affirmation seriously and verifying the idea of democracy that is behind it: a study on this shows that it has been “one of the central elements in the republican conception of democratic ordering, another being the idea that democratic deliberations should be designed to achieve the public interest rather than the narrow sectional desires”. And this affirmation can be easily repeated for the EU. Stressing institutional balance, according to Craig, recalls the republican idea that can be summed up as “the necessity to create a stable form of political ordering for a society within which there are different interests or constituencies.” (46)

27 From which follows a state of constant tension: on this, see Bieber R., The Settlement of Institutional Conflicts on the Basis of Art. 4 of the EEC Treaty, 21 CMLR, 1984, 505, who considers that “this particular situation leads to „institutional competition “for the major share in the policy-making process. At the same time there is competition between the Community and its Member States over policy-making power.” Contrary to dominant legal literature, Bieber sustains that “the legal basis for the institutional fluidity of the community Treaties is formed not by the maintenance of a balance which supposedly derives from Art. 4, but rather by both preservation of the identity of the institutions, to which specific reference is made in Art. 4 of the EEC Treaty and the obligation to cooperate, which may also be inferred from Art. 4.” (509). Così Prechal S., Institutional Balance: A Fragile Principle with Uncertain Contenute, in Heukels T., Blokker N. and Brus M., The European Union after Amsterdam, Kluwer Law International, The Hague, 1998, 293, observes that the term “Institutional balance” “is rapidly developing into one of these catchwords everybody uses without exactly knowing what it means or what it should mean. ... The notion may seem to be something very fundamental, as a constitutional feature of the Community, but in fact it has limited value. As a principle of interpretation it may function to a certain extent as a guarantee against the concentration of power within one single institution and as preserving the autonomous position of each of the institution within the Community institutional structure.” Even if the Community system explains in a particularly acute way the case of undetermined norms in matter of relations between institutional actors, it must be noted that this phenomenon is not unknown in national constitutions, that “specie quelle più risalenti nel tempo, dedicano scarne e generiche disposizioni alla ripartizione orizzontale dei poteri e alla disciplina del processo decisionale. L’esigenza di garantire flessibilità al sistema consiglia infatti di rinunciare ad una disciplina troppo rigida e completa delle relazioni tra gli organi costituzionali e dei procedimenti decisionali in cui questi sono coinvolti.” (Cattabriga C., La Corte di Giustizia e il processo decisionale comunitario, Milano, Giuffrè, 1998, 177)

28 Scholars agree on this point, exemplified by Bradley K. S. C., Maintaining the Balance: The Role of the Court of Justice in defining the institutional position of the European Parliament, CMLR, 1987, 41 ss.: “yet it is the very open-ended character of the relevant Treaty provisions which has enabled the Court of Justice to develop a coherent theoretical structure of inter-institutional relations in the Community decision-making process, based on the notion of the institutional balance intended by the Treaty.”

29 According to the expression used by Weiler to describe the evolution of the jurisprudential interpretation of art. 30: see Weiler J. H. H., La costituzione del Mercato Unico Europeo, in Id, La Costituzione Europea, Bologna, Il Mulino, 2003, being published.

30 Mancini F., Democracy and the European Court of Justice, cit., 31. According to Mancini, proof of this can be found easily in the preamble and in the first part of the Treaties, in which the word democracy is not even mentioned, where instead peace and freedom find a place as values to be defended. What seems even more surprising is that the constituents do not concern themselves with (expressly) reserving the admission of new States to the democratic principle, by which “any state” is spoken of generically (art. 237 EC), even if the new art. 49 (Amsterdam Treaty) specifies “any European States which respects the principles set out in art. 6(1)”. Proof of this is Stein E., Thoughts from a Bridge. A retrospective of Writings on New Europe and American Federalism, USA, The University of Michigan Press, 2000, 340, who observes that “In 1950, the European Coal and Steel Community was conceived as a technocrat regime: the so-called Common Assembly was added by Jean Monnet as an afterthought at the urging of the Dutch and others.” On the same note, Craig P. e De Burca G., The Evolution of EU Law, cit., 7, who underline that at the beginning “Democracy was, by way of contrast, a secondary consideration in a double sense. This was in part because it was felt that the best, perhaps only, way of securing the desired peace and prosperity was by technocratic elite-led guidance. It was in part because even when the attention was focused on the ‘people’ the notion of democracy was limited or attenuated. The essence of the discussion was on the way in which the success of the European enterprise would lead to a transfer of loyalty to and acceptance of the Community institutions. It was not directed towards the fundamental issue of whether democratic controls in the more normal sense of the term should form an important part of the Community order.” Such observations further reflect the position on the subject of neo-functionalist thought. See also Verhoeven A., The European Union in Search of a Democratic and Constitutional Theory, London, Kluwer, 2002, 57 ss.

31 The observations of Ferrera M., Decision making, competences, legitimacy,, 4, seem opportune in this regard. According to him, criticism in regards to the Community democratic deficit “tends to neglect the evolutionary dynamics, i.e. the mutual reinforcement that over time can link the various components of legitimacy.” The temporal factor and the concomitant osmotic process with the context of the Member States seem to reduce the criticism of the democratic deficit: like Zuleeg M., National Parliamentary Control and European Integration, in Heukels T., Blokker N. and Brus M., The European Union after Amsterdam, Kluwer Law International, The Hague, 1998, 304: “a living European democracy is gradually emerging. This evolution is no reason to be apprehensive of a corresponding loss of democratic structures in the Member States. Living democracies inspire each other as can already be seen in the Europe of today. The convergence of the protection of fundamental rights are an essential factor of a functioning democracy.”

32 Opinion of Mr Advocate General Mancini delivered on 13 October 1987, Mario Roviello v Landesversicherungsanstalt Schwaben, Case 20/85, par. 8: in the conclusive phase of adoption of regulation 2000/83 (that is, after having obtained the opinion of Parliament), the German delegation proposed to the Council to add a specific point for the application of that regulation in Germany, as a result of the difficulty in coordinating the new norm with the pre-existing system of German State insurance. And it was precisely in relation to this point 15 (attached 6), voted by unanimous resolution of the Council and therefore inserted in the final text of the regulation, that the petitioner claims to have been discriminated against in comparison with the same category of workers with German citizenship.

33 Thus, the Advocate affirms that “opinions on the need to submit such an amendment for the approval of the Assembly are not merely varied but largely divergent” (par. 8). The problematic of the need for a new consultation would become ever more stringent in the future with the evolution of Community legislative procedures, in consideration of which “to place an extreme restriction on the reconsultation requirement would result in excluding the Parliament from the legislative procedure in cases where the text finally adopted differed in substance from the text on which the Parliament had already been consulted. On the other hand, to apply the reconsultation requirement generally would lead to a systematic second reading and confusion between the consultation and cooperation procedures.” (Opinion of Mr Advocate General Darmon delivered on 16 March 1994, European Parliament v Council of the European Union, Case C-388/92, par. 19).

34 Judgment of the Court of 11 June 1991, Commission of the European Communities v Council of the European Communities, Case C-300/89. A similar case in this aspect is the decision of the Court of March 2, 1994, European Parliament v. Council of the European Communities, Case C-316/91 (see in particular par. 14).

35 It is not possible to retrace in this space the large-scale “institutional war” in progress over the years in regards to the choice of a legal basis for the act: on this topic one may consult cases 68/86, UK v. Council, Hormones, 1988, ECR 575, e 70/88, Parliament v. Council, Chernobyl. For a detailed analysis see Bradley K., The European Court and the Legal Basis of Community Legislation, E. L. R., 1988, 379 ss

36 Whenever the same body wants to accept a proposal of the Commission as amended by Parliament, if it wants to reject the proposal, it must obtain a unanimous vote.

37 Judgment of the Court, Case C-300/89, cit., par. 20. Similar decisions with the aim of reinforcing the role of Parliament within legislative procedure or qualified majority vote in the Council, based on the utilization of an incorrect procedure, can be read in cases 32, 52 e 57/87, ISA and others v. Commission, June 21, 1988 e and in the previously cited case 70/88.

38 And in consequence, the incorrect choice of legal base does not mean simply a formal defect, but rather constitutes a hypothesis of a infringement of essential procedural requirement. See Opinion of Advocate General Tesauro of March 14, 1991, Case C-300/89, par. 2.

39 Id., par. 13. This centrality of Parliament in order to affirm the democratic principle is expressed by the Preamble of the Single Europe Act itself (GUCE L 169, of 29. 6. 1987), in which the starting point is the conviction that “European ideas, the results achieved in the fields of economic integration and political cooperation, and the need for new developments correspond to the wishes of the democratic peoples of Europe, for whom the European Parliament, elected by universal suffrage, is an indispensable means of expression.”

40 As if this were not enough, in supporting this thesis - and a further confirmation of how significant a role the procedural guarantee of democracy played in the decision - Tesauro adds that, regardless, environmental politics (art. 130) can merely gain from the adoption of procedures provided for by art. 100A: “That policy can only benefit from the fact that the measures in question are adopted by a majority rather than unanimously and with more effective involvement of the Parliament” (Opinion of Advocate General Tesauro of March 14, 1991, Case C-300/89, par. 14).

41 Opinion of Mr. Advocate General Ruiz-Jarabo Colomer, delivered on 24 February 2000, Grand Duchy of Luxembourg vs. European Parliament and Council of the European Union, Case C-168/98, par. 59.

Opinion of Mr Advocate General Mancini, Case C-34/86, cited., par. 2: no trace of such a motivation is found in the following decision. Even if it may seem to be taken for granted, it is worth repeating the observation of Ress: “The conflict of values in regard to the principle of democracy is therefore not based on reservations against a strong role for the EP in the decision-making process of the Communities or against parliamentarism as such, but one concerns for the national sovereignty of the Member States as expressed by their influence on the law-making process of the Community.” (Ress G.,Democratic Decision-Making in the European Union and the Role of the European Parliament, cit., 161). So too, Mancini F., Democracy and the European Court of Justice, cit., 31 ss., notes that if on the one hand Ress’s thesis is true, on the other, one must also consider the fear that a strong Parliament could block the decisions of the Council, thereby creating a stalled situation and thereby a weakening of the Community.

42 Everling U., Abgrenzung der Rechtsangleichung zur Verwirklichung des Binnemarktes nach Art. 100a EWGV durch den Gerichthof, EuR, 1991, 181: the author underlines how this was certainly not the only possible solution, even from a procedural point of view, but that evidently according to the Court the two procedures cannot overlap “weil das Verfahren der Beteiligung des Parlaments unterschiedlich ist. Dazu verweist er vor allem auf die mit dem Verfahren der Zusammenarbeit nach Art. 100a angestrebte Stärkung des demokratischen Prinzips.” So too states Epiney A., Gemeinschaftsrechtlicher Umweltschutz und Verwirklichung des Binnenmarktes – Harmonisierung auch der Rechtsgrundlagen?, JZ, 1992, 569: “Auch in der weiteren Argumentation des EuGH drängt sich der Eindruck auf, daß er eher auf ein integrations- und demokratieförderndes Ergebnis als auf eine systemgerechte Abgrenzung der verschiedenen Kompetenznormen Wert legte.” In like manner, Bernard C., Where politicians fear to tread?, E. L. R., 1992, 133 draws out the in the choice of the Court the attempt to favour the qualified majority voting, which eliminates the possibility of a single State veto.

43 This is the reading preferred by Barents R., The Internal Market Unlimited: some Observations on the Legal Basis of Commuity Legislation, C.M.L.R., 1993, who considers that in this case the Court is defending not so much democracy as the common market. In this reading, the result of the emphasis given to art. 100A nevertheless brings us to critical consideration, as this ends with attributing to the Community a sort of “factual Kompetenz-Kompetenz”, whereby being attributed a role of a “nearly omnipotent economic legislator.” (108).

44 Opinion of Mr Advocate General Saggio delivered on 7 May 1998, Willi Burstein v. Freistaat Bayern, Case 127/97, par. 19. The Advocate also confirms the reasoning of the norm under consideration with particular clarity, “which is to give the Community institutions a means, one which has proved to be fundamental, for the achievement of the objectives set out in Article 7A and, therefore, of establishing the internal market, with all the freedoms which that implies.” (par. 22).

45 Barents R., The Internal Market Unlimited: some Observations on the Legal Basis of Community Legislation, C.M.L.R., 1993, 92: “In the absence of substantial democratic control on the Community legislature, this guarantee function constitutes a vital element of the rule of law in the Community.” One thus understands the primary role that the Court comes to assume. 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, points out, in addition, how “the prudent compromises that successive Treaty reforms gave rise to have been reflected in a multiplication of procedures: they are no less than 23 at the moment. As the rights of each institution vary considerably from one type of procedure to another, the choice of the legal basis for EU decisions bears considerably importance: this explains the mushrooming of challenges to the legal bases in the post-Single Act years.” This typology of cases, furthermore, is typical in federal orders: to this effect, one may note the extensive case law on the part of the U.S. Supreme Court in this regard. For a preliminary comparative approach, see Bradley K., The European Court and the Legal Basis of Community Legislation, E. L. R., 1988, 401.

46 Advocate General Jacobs, in decision 316/93 had begun to retort to the possible objection to the horizontal direct effects of the directives, due to “having an insufficient democratic basis” (par. 23), affirming that the same objection one must then be repeated for other Community acts: opinion of Mr Advocate General Jacobs of 27 January 1994, Nicole Vaneetveld contro Sa Le Foyer e Sa Le Foyer v. Federation des Mutualites socialistes et syndacales de la province de Liege, Case C-316/93. The same problematics is picked up again after only a few days by Advocate General Lenz, in the famous suit Faccini Dori, from which the quote in the text is taken: Opinion of Mr Advocate General Lenz delivered on 9 February 1994, Paola Faccini Dori v Recreb Srl. Reference, Case 91/92, par. 68.

47 Perhaps in this regard a certain resistance on the part of the Court to leaning too much on the issue of democratic principle is also in play, since, as observed by Verhoeven A., How Democratic need European Union Members be? Some Thoughts after Amsterdam, E. L. R., 1998, 230 - “The Concept of democracy and human rights are closely linked to a society’s particular identity and are value-laden and sensitive.” Or perhaps, as Verhoeven still suggests, “the limited use by the Court of the democracy principle is liked to the traditional liberal approach to democracy, which tends to privilege civil rights (which protect the citizen against governmental interference) over political, participatory rights.”

48 On this, Zuleeg M., Demokratie durch Rechtsprechung, cit., 5: “Gerade diese Beteiligung ist es, die auf Gemeinschatsebene ein grundlegendes demokratisches Prinzip wiederspielt. Auf diese Weise ist das Klagerecht des EP eben doch mit dem demokratischen Gedanken verknüpft.” Likewise, Mancini F., Democracy and the European Court of Justice, 38, considers that these decisions have contributed to reinforcing the democratic side of the Community government.

49 Noted cases in this regard are those on article 173 of the Maastricht Treaty (230 Amsterdam Treaty), which omits the prevision of Parliament as an institution authorized to action on the annulment of an act of another institution. In 1987 (the case Comitology, Judgment of the Court of September 27, 1988, European Parliament v Council of the European Communities, Case C-302/87), Parliament tries to have a right to action to the Court for annulment of an act of another institution, in this supported by a previous case of creative interpretation of art. 173 (Judgment of the Court of April 23 a 1986, Partì Ecologiste “Les Verts” v. European Parlament, Case 294/84). The Court, nevertheless, states that the Treaty provisions do not enable to recognize the capacity of the European Parliament to bring an action for annulment; according to art. 173 of the Treaty, Parliament does not have this power, by which the Community judiciary lacks the legal basis for intervening in favour of the Parliament. It is a peculiar issue, because the conclusions of Advocate General Darmon had amply demonstrated how, in reality, the problem was not so simple: Advocate Darmon’s motivation was founded specifically on the need for jurisdictional protection of Parliament, that would be otherwise weakened in the moment in which the guarantee of parliamentary prerogatives came to depend on a claim that could not be proposed by the main interested party (Opinion of Advocate General Darmon of May 26, 1988, Case 302/87, cit., par. 32 ss.). Weiler J. H. H., Pride and Prejudice – Parliament v. Council, E. L. R., 1989, 345, notes that in the distancing of the Court from the position of the Advocate General that typical self-restraint of constitutional courts may have played a role, by which they do not invade the sphere proper to the modifications of the Treaty (since Treaty reforms are not judiciary competence): an amendment of article 173 in favour of the action of Parliament had just been rejected by the Council and perhaps the Court did not want to contradict the position of the Community legislature. Weiler’s affirmations are amply confirmed by the Opinion of the Advocate General Van Gerven on November 30, 1989, European Parliament v Council of the European Communities, case 70/88, par. 5, in which the previous case Comitology is justified by starting from fear “as interference by the Court in the very delicate question of institutional balance” and “as interference in the political decision-making process”, all the more since “When the Treaties were revised, the Council refused expressly, in fact, to approve a proposal by the Commission to grant the Parliament the same unlimited right to bring actions for annulment as that enjoyed by the Council and the Commission.”

Shortly thereafter, however, the issue is presented again and the Court reconsiders the fundamental line of Darmon’s argumentation, retracing his path, (case Chernobil, Judgment of the Court of October 4, 1990, European Parliament v. Council, Case 70/88): with the interlocutory decision of May 22, 1990, the judge of Luxemburg, in fact, the community judge admits the action of Parliament for annulment, motivated yet again by the thesis of institutional balance, by which an institution must always be able to bring action against potential violations of its own prerogatives. The Court has thus recognized that the means at Parliament’s disposal were not sufficient to guarantee the maintenance of institutional balance as specified by the Treaties. In brief, see the judgment of the Court of May 22, 1990, European Parliament v Council of the European Communities, Case 70/88, p 22: “Observance of that balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur. The Court, which under the Treaties has the task of ensuring that in the interpretation and application of the Treaties the law is observed, must therefore be able to maintain the institutional balance, and in order to do so must be able to review observance of the prerogatives of the various institutions by means of appropriate legal remedies.”

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