How Do Our Judges Conceive of Democracy?

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50 Dehousse R., Integration Through Law Revisited: Some Thoughts on the Juridification of the European Political Process, cit., 18.

51 Opinion of Advocate General Darmon of May 26, 1988, European Parliament v Council of the European Communities, Case 302/87, par. 28: this type of cases has meant the emergence of the role of “Constitutional Court” for the European Court of Justice (see Bieber R., The settlement of institutional conflicts on the basis of Art. 4 of the EEC Treaty, 21 CMLR, 1984, 510 ss.).

52 The gaps in art. 173 Maastricht Treaty and in the Treaties in general in regards to parliamentary protection, had, in fact put the Court in the delicate position of having to decide whether to leave the previous rule intact, leaving modification to a future legislative intervention or proceed to guarantee a adequate system of jurisdictional protection and, with this, to maintain institutional balance as provided for in the Treaties. Particularly clear is the opinion of Advocate General Van Gerven, case 70/88, cit. par. 6, “The distinction I have just outlined between the interpretation of the Treaty with a view to ensuring that there is an adequate and coherent system of legal protection and its interpretation in a manner which might interfere with the delicate political balance between the institutions is in my view an essential one. Whereas the first is the inalienable task of the courts, the second falls to the (primary) legislature. (…) Whereas establishing (or re-establishing) an institutional balance between the Council, the Commission and the Parliament - a matter which I consider is not the province of the courts - entails giving the Parliament as full a right of action as the Council and the Commission enjoy, that is not the case if the aim is to ensure that the Parliament enjoys effective legal protection.”

53 This need is clear in the Opinion of Mr. Advocate General Léger delivered on 28 March 1995, European Parliament v. Council of the European Union, Case C-21/94, par. 28: “in order to distinguish the consultation procedure on the one hand from the assent procedure on the cooperation or co-decision on the other, the Council must be able to depart, within certain limits, from the proposed text and the opinion of the Parliament which is not legally binding on it.” See also, regarding this issue, de Burca G., Case C-21/94, Parliament v. Council and Case C-417/93, Parliament v. Council, C. M. L. R., 1996, 1063.

54 According to the assessment of Boyron S., The Consultation Procedure: has the Court of Justice turned against the European Parliament, E. L. R., 1996, 148, the majority of acts adopted since Maastricht came into force have been adopted with the procedure of consultation: more precisely, 168 with this procedure, 52 with the cooperation procedure and 97 with the co-decision procedure. Therefore “the consultation procedure is not a residual power yet.”

55 Judgment of the Court of 30 March 1995, European Parliament v Council of the European Union, Case C-65/93; Opinion of Mr Advocate General Tesauro, delivered on 13 December 1994, European Parliament v Council of the European Union, Case C-65/93. Contested is a regulation providing for preferential tariffs applying to certain products coming from countries in the East and from developing countries. The proposal of the regulation on the part of the Commission is dated October 15, 1992, and presents itself as particularly urgent, because - among other points - it is concerned with making that system conform to the imminent initiation of the Single European Market (January 1, 1993). On October 22 the Council therefore asks Parliament to express its opinion according to the urgent procedure, so that it can adopt the act before January 1993, the scheduled date for the entering into force of the regulation. On December 21, 1992, by which point it was clear that Parliament would not have given its opinion before the New Year, the Council decided to adopt the act despite the lack of parliamentary intervention.

56 It seems important to point out that the Council, in this case, directed to Parliament the motivations of the decision to adopt the act even if the opinion of Parliament was not obtained: “Whereas it is imperative to avoid a legal vacuum that could seriously harm the Community' s relations with the developing countries as well as the interests of economic operators; whereas, therefore, the regulation on the application in 1993 of the Community' s regime of generalized tariff preferences must be adopted sufficiently early to enable it to enter into force on 1 January 1993; Whereas it appears, after consultation of the President of the European Parliament, that it would be impossible to hold an extraordinary session at the European Parliament to enable it to adopt its opinion in good time to allow the adoption and publication of the regulation before the end of 1992; Whereas, in these exceptional circumstances, the regulation should be adopted in the absence of an opinion of the European Parliament” (Judgment of the Court, Case C-65/93, cit., par. 10).

57 Id., par. 23.

58 See par. 28.

59 This concern emerges clearly in the words of the Court (Judgment of the Court of 3 July 1986, Council of the European Communities v European Parliament., Case C-34/86, par. 42): “It must be observed in the first place that, although it is incumbent on the Court to censure that the Institutions which make up the budgetary authority keep within the limits of their powers, it may not intervene in the process of negotiation between the Council and the Parliament which must result, with due regard for those limits, in the establishment of the general budget of the Communities”. In this sense the Court (partially) corresponds to the suggestion of Advocate General Mancini, according to whom, “the poor drafting of the provisions which governs the budgetary procedure and the conflicting political objectives of the two institutions invite the conclusion that, even if the Court’s judgment does not have the effect of exacerbating their relations, it will have very little impact on them.” (Opinion of Mr Advocate General Mancini delivered on 2 June 1986, Council of the European Communities v European Parliament, Case C-34/86, par. 19).

This separation between judicial power and the financial decision-making issue seems confirmed in an indirect fashion also by the fact that some claims were withdrawn in the course of proceeding from institutions that show a preference, in the solution of conflictive issues, for interinstitutional documents and declarations as opposed to jurisdictional intervention: the most important example in this regard—due to the declaration that it achieved (that is, the cited “Joint Declaration of the European Parliament, the Council and the Commission of 30 June 1982, on various measures to improve the budgetary procedure”) – is constituted by two cases, 72/82, Council v Parliament e 73/82, Council v Commission.

60 The declaration also states, “whereas various measures to improve the operation of the budgetary procedure (…) should be taken by agreement between the institutions of the Communities, due regard being had to their respective powers under the Treaties” So Bieber R., The Settlement of Institutional Conflicts on the Basis of Art. 4 of the EEC Treaty, cit., 514, observes that for the first time in the history of the European Community an official document emphasizes the need for cooperation amongst the institutions: “in procedural terms, the declaration is the most far-reaching result ever produced by interinstitutional cooperation.” Clear in this regard is the judgement of the Court of 27 September 1988, Hellenic Republic v Council of European Communities, Case 204/86: in this case Greece complained of an erroneous delimitation between mandatory and non-mandatory expenses: one must consider that the matter of budget is, as always, particularly delicate because, as the same Community judge affirms, “indeed the operation of the budgetary procedure, as it is laid down in the financial provisions of the Treaty, is based essentially on inter-institutional dialogue”(par. 16).

61 Since within the treaties the hypothesis of urgency is not provided for (as requested by the Council), to allow it in a jurisprudential setting would bring about the alteration of the structure of European governance and in function of judicial power (par. 14). This affirmation is confirmed by an unbroken line of judgments on the fact that “The rules on the relations between the institutions and on the corresponding distribution of powers clearly constitute one of the essential components of that constitution, and derogations from them cannot be made without thereby altering the characteristics of the system.” (par. 20). To support this thesis, the Advocate recalls also the noted judgment of the Court of February 23, 1988, United Kingdom v Council, case C-68/86, according to which “the rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves”, and it is evident that the norms on the participation of Parliament in the legislative process are part of these provisions (par. 17).

62 Otherwise, according to the Advocate, the Council could always have taken recourse in the procedure provided for by art. 175, even if, repeating the very words of the Advocate: “I do not thereby intend to deny that, in cases of urgency, such a remedy might prove ineffective. As I have already said, however, a different solution would require an amendment of the rules which govern the balance between the institutions, and which the Court has always held, and rightly held, to have constitutional force. Such an amendment is therefore a matter for the legislature, and not for the Court” (par. 23).

63 This kind of relationship would be particularly interesting to investigate, because the delicate balance between judiciary and legislature is a strong-hold of every democratic order, nevertheless it is not possible to do it in this case because it would require a wide ranging examination on all of the Community cases. As far as the specific analysis in progress, one can say that, at first glance, this problem does not seem to be noticed as particularly problematic within Community interinstitutional relations: generally, it seems that Parliament calls the Court to its defense against the extreme power of the Council and that the Council tries to limit the possible blows of the Community judiciary, but in regards to whether to the Court of Justice has this power or not, there does not seem to be any doubt. Tesauro’s thesis, so fashionable with national constitutional cases, seems to be isolated in these judgments. This is not the case, however, in the matter of budget, for example.

64 By this Parliament certainly did not mean to insinuate that the Council remain blocked in waiting for an opinion, but at the same time, it could not allow that the Council proceed to adopt a decision on the issue before receiving the opinion of Parliament. (par. 12) Per Boyron S., The Consultation Procedure: has the Court of Justice turned against the European Parliament, cit., 147: “However it raises an important question as regards the organisation of accountability within the European Community and one wonders whether the Court was well advised to have accepted the argument of the Council.”

65 Cassese S., Non c’è deficit di democrazia, La Stampa, in

66 Judgment of the Court of 10 May 1995, European Parliament v Council of the European Union, Case C-417/93, par. 8.

67 Id., par. 13.

68 Thus Boyron S., The Consultation Procedure: has the Court of Justice turned against the European Parliament, cit., 148, criticizes the scant attention of the Court on the area of the political agreements arranged within the Council meetings: “One might wonder how provisional the text is if a political compromise has been reached between Member States. It is difficult to believe that Member States will decide to upset a (perhaps fragile) agreement in order to incorporate amendments of the European Parliament. The administrative organization of the decision-making process in the Council reflects a political reality which the European Court refuses to recognize.”

69 Judgment of the Court of 5 July 1995, European Parliament v Council of the European Union, Case C-21/94. The directive in question (n. 93/89) concerns the national systems of taxation on commercial vehicles, and the tolls collected for the use of certain infrastructures: the matter was the object of haggling between Commission and Council for an extremely long period (from 1968 on), and the proposal of the Commission of 1987 was then presented to the Council in October of 1992 and approved by Parliament in December of 1992. The Council deliberated the definitive act with relevant modifications without reconsulting Parliament, from which the controversy stems. In this case one should really also consider the evolution of the matter to which it applies - in a final analysis we are dealing with an attempt on the part of the Commission to constitute a common policy in the matter of transportation (common transport policy) –, subject to recent Court interventions and to current concern in the Community policy: see also Judgment of the Court of 16 July 1992, European Parliament v Council of the European Union, Case C-65/90, and Judgement of the Court, Case C-388/92, cit.

Judgment of the Court of March 2, 1994, European Parliament v Council of the European Communities, Case C-316/91, par. 26. Note also that the Court has specified in relation to the choice of legal basis for the adoption of the act that “the right to be consulted in accordance with a provision of the Treaty is a prerogative of the Parliament. Adopting an act on a legal basis which does not provide for such consultation is liable to infringe that prerogative, even if there has been optional consultation.” (par. 16)

70 In particular, Advocate general Léger (Opinion of Mr Advocate General Léger delivered on 14 February 1995, European Parliament v Council of the European Union, Case C-417/93) shows the peculiarity of the balancing test that Court must fulfil starting from the flexible nature of the Community legislative process (due to the fact that the text can be revised up to the moment of its definitive adoption).

71 On this topic one may recall that according to the previous cases of the Court, the obligation of a new consultation exists in the case of a substantial modification of the act on which Parliament was already consulted, except that the amendments correspond essentially to the desires of Parliament: extensively on this theme see the Judgment of the Court of November 11, 1997, Eurotunnel SA e a. C. Sea France, Case C-408/95, par. 45-46 and the corresponding opinion of Advocate general Tesauro of May 27, 1997, par. 28.

72 Opinion of Mr Advocate General Fennelly delivered on 20 March 1997, European Parliament v Council of the European Union, case 392/95 and Judgment of the Court of 10 June 1997, European Parliament v Council of the European Union, case 392/95.

73 Opinion of Mr Advocate General Fennelly, Case 392/95, cit., par. 13.

74 Id., par. 20.

75 Id., par. 23. Analogously, par. 25: “the reconsultation requirement does however mean that the Council’s margin for manoeuver in considering legislative proposals is limited by the obligation to respect the Parliament's Treaty prerogatives, and that it may not set itself up as sole arbiter of the futility or otherwise of reconsulting the Parliament.”

Judgment of the Court of First Instance of 1 December 1999, Boehringer Ingelheim Vetmedica GmbH and C.H. Boehringer Sohn v Council of the European Union (T-125/96) and Commission of the European Communities (T-152/96), Joined cases T-125/96 and T-152/96.

Opinion of Mr Advocate General Fennelly, Case 392/95, cit., par. 23. Thus the observation in par. 31 is equally interesting: “it seems to me that the ‘substantial modification’ test was developed by the Court as a criterion for the sufficiency of the consultation of the Parliament in policy areas, principally transport, where the Council enjoys a wide margin of discretion.”. In the specific case the obligation of reconsultation. “This does not in any way affect the Council's substantive discretion as to the choice of countries which should feature on the list of third countries, but merely seeks to ensure that the procedure defined in Article 100c(1) for establishing this list is properly respected.”

76 Id., par. 15. The same argumentation is represented a few years later, supported this time by Advocate Mischo: we are in the field of foreign policy, even if this time it bears more specifically on the field of agreements with third countries. Opinion of Mr Advocate General Mischo delivered on 11 March 1999, European Parliament v Council of the European Union, Case C-189/97.

77 Harlow C., Citizen Access to Political Power in the European Union, cit.

78 Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 17 June 1998, Union Europeenne de l'artisanat et des petites et moyennes entreprises (UEAPME) v Council of the European Union, Case T-135/96, par. 58. The Court in the present case had to decide on the admissibility of the appeal of annulment of the directive on the part of an association that had not participated in the agreements ex. Art. 4, and, more precisely, “whether any right of the applicant has been infringed as the result of any failure on the part of either the Council or the Commission to fulfill their obligations under that procedure, given that the applicant's right to judicial protection requires it to be regarded as directly and individually concerned if it is distinguished by reason of specific attributes which are peculiar to it or of factual circumstances which differentiate it from all other persons.” (par. 83). In such case, in general, there was a renewal of the problematic connected to the binding nature of acts adopted by the aforementioned procedure and whether their working was subject to determined criteria, and in particular, to the verification of the representativity of the signatories of the agreements.

79 Thus, articles 118a e 118b pick up art. 3 e 4 of the Agreement on Social Policy without modifications.

80 Thus the appellant considers seriously (par. 44 ss.) “the specific nature of Directive 96/34”, that is not equivalent to the classical directives and therefore to the Court’s previous cases on the matter, and the Court itself repeatedly recognizes the unusual nature of the case.

81 More precisely, it “was systematically excluded from the negotiations which led to the adoption of the measure, even though it had on several occasions expressed the wish to be included and give reason why it should be.” (Action brought on Sept. 5, 1996 by UEAPME, O. J. 1996, 318/21). As affirmed by Betten L., The Democratic Deficit of Partecipatory Democracy in Community Social Policy, E. L. R., 1998, 31, this is the point that UEAPME’s action brings to light; that in fact the negotiations are “basically a closed shop”. Adinolfi A., Admissibility of action for annulment by social partners and “sufficient representativity” of European Agreements, E. L. Rev., 2000, 175, underlines that, in effect, “the loose formulation of the provision is clearly due to a willingness to leave a large degree of autonomy to social partners”: the problem is that this is a factor that allows difficulties in the moment in which the agreed-upon act claims to be binding for everyone.

82 The solution of the suit depends, therefore, on the representativity of the signing associations, because only in the case that one manages to show the lack of sufficient representativity may the appeal of an association excluded from the negotiations be admitted. As the Tribunal affirms in par. 90: “the representatives of management and labour which were consulted by the Commission in accordance with Article 3(2) and (3) of the Agreement, but which were not parties to the agreement, and whose particular representation - again in relation to the content of the agreement - is necessary in order to raise the collective representativity of the signatories to the required level, have the right to prevent the Commission and the Council from implementing the agreement at Community level by means of a legislative instrument.”

83 In classic fashion, Böckenförde E. W., Demokratie als Verfassungsprinzip, in Isensee/Kirchhof, Hdb. Staatsrecht, Bd. I, 1987, 894: “Positiv-konstituierend legt der Satz vom Volk als Träger und Inhaber der Staatsgewalt fest, daß Innehabung und Ausübung der Staatsgewalt sich konkret vom Volk herleiten muß. Die Wahrnehmung staatlicher Aufgaben und die Ausübung staatlicher Befugnisse bedarf einer Legitimation, die auf das Volk selbst zurückführt bzw. von ihm ausgeht (sogennante ununterbrochene demokratische Legitimationskette).”

84 Per Sartori G., Democrazia. Cos’è, Rizzoli, Milano, 2000, pag. 29: “il punto cedevole di tutto l’edificio sta nelle cinghie di trasmissione del potere; e la messa a fuoco etimologica non se ne avvede. Elezione e rappresentanza sono sì il corredo strumentale senza il quale la democrazia non si realizza; ma ne sono al tempo stesso il tallone d’Achille”.

85 Judgment of the Court of First Instance, cit., Case 135/96, par. 102.

86 The representation of interests founded on a legislative act (therefore of general character) is somewhat less problematic: “a concept of an organisation’s representativity based on its claim to represent interests, rather than actual numbers of members, poses problems. Even more so, if the evidence for representation of those interests is based on the text of agreements concluded.” (Bercusson B., Democratic Legitimacy and European Labour Law, cit.,159).

87 More precisely, Harlow C., Citizen Access to Political Power in the European Union, cit., observes the following processes perceptible also in the national seat: “There has been a slippage from government based on representative democracy to governance based on ‘variety of different regulative, representative and authority processes’. (…) a global rationalisation process in which expert sovereignty necessarily prevails over both popular and parliamentary sovereignty while policies and regulation are legitimated by reference to expert knowledge.” In the evolution of these forms of legitimization different from typical processes of representation, the observation of Merusi is more and more important: “Non è il caso qui di attardarsi sulla vexata questio se l’essenza della democrazia stia nella rappresentanza oppure nel contraddittorio cui pure è sottoposta anche la rappresentanza. E’ sufficiente osservare che, quando la rappresentanza non c’è, il contraddittorio deve essere completo ed integrale….”(Merusi F., Giustizia amministrativa e autorità amministrative indipendenti, Dir. Amm. 2/2002, 196)
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