How Do Our Judges Conceive of Democracy?

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88 Judgment of the Court of First Instance, cit., Case 135/96, par. 96. Previously, in fact, the Court had requested that, as the act had to be applied to all work situations, in order to obtain a sufficient level of representativity the signatories of the agreement had to represent all categories of businesses and workers at the Community level (par. 94).

89 The Court of Justice, too, was put to the test in the analysis of the criterion of representation in a national union association (therefore not at the European level, but internally) in the cases of June 8th, 1994, Commission of the European Communities v. UK and Ireland, C-382/93 e Commission of the European Communities v. UK and Ireland, C-383/93, and had raised as many perplexities.

90 Judgment 135/96, cit., par. 89.

91 Weiler J. H. H., Haltern U. R. e Mayer F. C., European Democracy and its Critique, in Hayward J., The Crisis of Representation in Europe, F. Cass Ed., London, 1995, 32. In more general terms, Schmitter P. C., Come democratizzare l’Unione europea e perchè, Bologna, Il Mulino, 2000, 78: “per l’UE, quindi, il problema vero non sta nell’assenza di rappresentanza, bensì nella distribuzione, sistematicamente deviata, di interessi e passioni, che cercano la loro strada all’interno di un potere decisionale complesso e reticente. Fin dalle sue origini, il processo di integrazione tende a privilegiare due pacchetti di interessi: in primo luogo e formalmente, quelli dei governi degli Stati membri e, in secondo luogo e informalmente, quelli dei settori d’affari più direttamente connessi all’ambito elle politiche funzionali.” This observation is connected to the affirmation of Cartabia M. e Weiler J. H. H., L’Italia in Europa, Bologna, Il Mulino, 2000, 48: “Quando determinate competenze con le relative scelte politiche sono trasferite all’Europa, allora si verifica un effetto di indebolimento dei soggetti portatori degli interessi nazionali più diffusi e frammentati rispetto ai soggetti esponenziali di interessi più potenti e compatti, derivante dalla maggiore difficoltà che i primi incontrano nell’organizzarsi al livello transnazionale rispetto, ad esempio, al corpo più compatto delle grandi industrie.”

More specifically on the case, it is worth repeating the words of Betten L., The Democratic Deficit of Partecipatory Democracy in Community Social Policy, cit., 33, who observed, touching the heart of the problem: “It may be safely assumed that UNICE, CEEP and ETUC do not represent a majority of employers and workers in Europe. They may be the most representative of all organizations, but they still do not represent a majority of employers and workers. This is particularly true for worker’s representation which is at an all time low in most Member States. Is it not important that if not all, then at least a majority of workers and employers are represented? Do not go against the grain of democratic society, to the principle of which all Member States must now formally subscribe, not to respect the majority rule?” To tell the truth, still in regards to the democratic principle, a further question should be considered; that of the democratic nature within the associations themselves. For example, l’ETUC (as far as workers are concerned) fundamentally takes decisions in this way: a majority of the participating associations must approve the decision and of these a qualified majority must be composed of stable organizations in the Member States.

92 Thus Villiers C., European Company Law – Towards Democracy?, Ashgate Dartmouth, Aldershot, 1998, 10, in an attentive examination of the evolution of Community company law, notes how “ultimately it might be argued that the two forms of democracy are interdependent: effective representative democracy leads to the establishment of machinery and procedures which make participatory democracy possible and participation raises an awareness and an interest in the representative democratic system.” Thus, too, at the end of the analysis, Villiers emphasizes that “The form of democracy at European Community level is representative democracy. However, the quality of that representative democracy is influenced by what degree of participation in decision-making is possible.” (226) Also because we cannot forget that the measures inherent to the Community decision-making process are such that render truly risky the substitution of the classical representative criterion with other types of representation (ex. like those of interests).

93 Such reforms on the matter have developed under the pressure of giving a social face to European evolution and going beyond the legislative impasse into which the labour law field had fallen at the Community level. Note, in confirmation of this, that in effect the adoption of the aforementioned procedure allowed the approval of a Commission proposal which dated to 1983, that had never been adopted by the Council; in 1995, therefore, the Commission had decided to initiate a consultation with the social parties (ex art. 3) on their possible orientation on the matter: in this sense one can say that one of the proposed goals of the Agreement on Social Policy - to reinvigorate social policy - was accomplished.

94 As is evident from the reading of par. 5, according to which the Commission must examine the representativity of the parties, and 86, by which the Council, for its part, is responsible for verifying whether the Commission has satisfied the obligations imposed on it by the decrees of the agreement, at the risk of approving an act with an invalid procedure. Bercusson B., Democratic Legitimacy and European Labour Law, Ind. L. J., 1999, 160, is particularly critical in regards to the Court’s reading of art. 3, what it sees as the origin of a particularly invasive control that goes “to the heart of the autonomy of the social partners.”

95 These concerns can be easily read in the Legal Service document (Affaire T-135/96, UEAPME contre Conseil, Brussels, 7 July 1998, Document 10218/98) subsequent to the Tribunal’s decision. See also Bercusson B., Democratic Legitimacy and European Labour Law, cit., 170, who considers that the risk to the autonomy of the social parties is so high that “it might, therefore, be a preferable option for the social partners to seek to achieve the necessary degree of democratic legitimacy from the EU institution which the Court has described without reserve as possessing that quality: the European Parliament”.

Perhaps, then, it is not an accident that from this judgment, instead of another appeal from UEAPME, what followed was an agreement amongst the social parties regarding future negotiations. (“Proposal for a cooperation Agreement between UNICE e UEAPME” of 12 November 1998).

96 Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 11 December 1996, Atlanta AG and others v Council of the European Union and Commission of the European Communities, Case T-521/93, Conclusions of Advocate General Mischo of May 6th, 1999, Atlanta AG and others v Commission of the European Communities and Council of the European Union, Case C-104/97 P. e Judgment of the Court(Fifth Chamber) of 14 October 1999, Atlanta AG and others v Commission of the European Communities and Council of the European Union, Case C-104/97 P.

97 As is briefly recalled in the conclusions of Advocate General Mischo del 6 maggio 1999, cit., C-104/97 P. par. 58-59, “The appellant claims that the Court of First Instance erred in holding that the right to be heard in an administrative procedure concerning a specific person could not be transposed to the context of a legislative process leading to the adoption of general laws. It contends, rather, that the procedural rights available to an individual to defend itself against injury can never be dependent on the form taken by this injury and that this principle is enshrined in the fourth paragraph of Article 173 of the Treaty.”

98 Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 11 December 1996, Case T-521/93, cit., par. 73. The tribunal had further recalled that “the consultation of representatives of the various groups participating in economic and social life takes place in the Community’s legislative process only in the form of consultation of the Economic and Social Committee” (par. 68).

99 Judgment of the Court(Fifth Chamber) of 14 October 1999, Case C-104/97 P., cit., par. 34-35: “Under Article 173(4) of the Treaty, any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. Contrary to the claims of the appellant, no right to be heard prior to adoption of a legislative act can be deduced from this provision.”

100 More precisely: “The European Parliament is a Community institution whose effective participation in the legislative process of the Community constitutes an essential factor in the institutional balance intended by the Treaty. By contrast, what is in issue in the present case is the participation of a technical body in the decision-making process of the institutions” (Judgment of the Court of First Instance of 7 July 1999, British Steel plc v Commission of the European Communities, Case T-89/96, par. 165).

101 Scharpf, Governare l’Europa. Legittimità democratica ed efficacia delle politiche dell’UE, Bologna, 1999.

102 This, however, is a note common also to the Treaty reforms: legal literature itself has underlined this possibility as the most immediately feasible. Stein E., International Integration and Democracy: No Love at First Sight, A. J. I. L., 2001, 525, stresses that “an alternative way to fill the gap in representative democracy can be found in the role of the European Parliament”; see also Schmitter P. C., Come democratizzare l’Unione europea e perchè, cit. 146, who underlines how “lo scopo principale dell’EP consiste nell’inserire all’interno del processo politico dell’UE un modo di rappresentanza diverso, un modo che possa potenzialmente moderare e compensare gli effetti della rappresentanza negli stati nazionali.” On the relavant Parliament’s position within the european government consider also recent affirmation of Advocate general Alber: “L’introduzione della procedura di codecisione era volta a rafforzare l’elemento democratico nella legislazione. (…) Ora il Parlamento è divenuto a tutti gli effetti controparte del Consiglio con pari diritti nell’ambito della procedura di codecisione” (Opinion of Mr. Advocate General S. Alber, delivered on 13 March 2003, Commision of the European Communities v. Council of the European Union, Case C-211/01, par. 76).

103 The problem is not at all new for scholars of democracy: for example, see Dahl R. A., Sulla democrazia, Laterza Ed., Bari, 2002, 112: “Le dimensioni contano. Sia il numero di persone che fanno parte di un insieme politico sia l’estensione del suo territorio influiscono sulle forme della democrazia.” From this statement Dahl observes that “quali istituzioni politiche siano assolutamente indispensabili al governo democratico dipende dunque dalle dimensioni dell’insieme.” (98) The phenomenon of European integration, as noted by Weiler J. H. H., The Transformation of Europe, 100 Yale Law Journal, 1991, 2470, is therefore by its very nature acclimatized to a “loss of democracy” and, for this same reason, it is not a given that the way to recuperate it is an appeal to classical majoritarian instruments. Notwithstanding, we would like in conclusion to report the statement by Stein E., International Integration and Democracy: No Love at First Sight, cit., 516, that underlines the merits of the democratic evolution of the European Union in consideration of its international origin. “Paradoxically, the European Union, though composed exclusively of liberal democratic states seeking to advance democracy in other states, and bound by the principle of democracy as a legal person within the texture of European regional law and even emphatically by its own constituent treaties, has been subjected to more charges of sustaining a democratic deficit within its institutions than any other international structure. The paradox may be explained by the origin and evolutionary method of the Union, but above all by the general difficulty of injecting democracy into international institutions, which I discussed above and which in this case is exacerbated by the unprecedently high level of integration.” And more in general - also noted by Weiler J. H. H e Trachtman J. P., European constitutionalism and its discontents, Nw. J. Int’l L. & Bus., 1997, 393 - it is not possible to totally abandon the international origin, but rather to rethink it in new terms: “On this reading Van Geend en Loos did not mark the creation on a new legal order, but the commencement of a mutation of the old international legal order. It’s time to view European constitutionalism as a mutation of international law that has survived and, dare we say, flourished.”

104 Here the reference is to the UEAPME verdict of the First Tribunal: unconnected to the analysis of the case, in regard to this problematics, the affirmations of Longobardi can be useful, according to whom “Proprio per salvare la democrazia rappresentativa è necessaria una integrazione forte di democrazia procedurale. (…) oggi si comincia a discutere di adjudication as representation e quindi di somiglianza di questi circuiti decisionali plurali e particolari con il meccanismo proprio della democrazia rappresentativa.” (Longobardi N., Il principio democratico, in AA.VV., I costituzionalisti e l’Europa. Riflessioni sui mutamenti costituzionali nel processo di integrazione comunitaria, Milano, Giuffrè, 2002, 217-218).

105 More precisely Azzariti G., Il principio democratico, in AA.VV., I costituzionalisti e l’Europa. Riflessioni sui mutamenti costituzionali nel processo di integrazione comunitaria, cit., 222, says that this “finisce per restringere l’ambito del processo democratico entro i rapporti istituzionali tra i diversi organi di governo”. He also asks, ironically, ironicamente, “se la democrazia europea sia tutta qui”. Criticisms of the choice of the Court to bank on the principle of institutional balance have not been lacking: while legal scholars has seen in this principle the basis for the birth of a civic republicanism after an American constitutionalism fashion, notwithstanding the accusations of a possible elitism in a system of this kind do not appear to be unfounded. Without considering, furthermore, that an excessive emphasis on the role of European parliament seems anachronistics in moment in which national parliaments themselves are losing power even within single orders. For an analysis of civic republicanism see Craig P. e De Burca G., The Evolution of EU Law, Oxford University Press, Oxford, 1999, 37, who underline how in negative terms the principle of institutional balance develops a function that prevents tyranny, while in positive terms this would assure a deliberative democracy where diverse interests can be expressed. More extensively on the theory of civic republicanism in Europe, see 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, 33 ss.

106 And if even the Court, in the sense of art. 164, is conceived of as a guaranteeing institution, like a sort of «safety valve» for the system (Cattabriga C., La Corte di Giustizia e il processo decisionale comunitario, cit., 14), there seems to be a different possible creative role in regards to the democratization of the community system, as seems to be suggested also by Kuper R., The Politics of the European Court of Justice, Kogan Page, London, 1998, 67: “It is possible that the Court can be used as one arm in a campaign for wider democratisation and human rights. It is the campaign itself, however, which will be crucial.”

107 And effectively, in the moment in which the Court is recognized as having a constitutional function, the institutional balance itself will come to resent its presence in part, to the point of considering that the image of the judge compared to the legislator, “si sostituisce quella, più consensuale, di un’impresa legislativa comune in cui i parametri sono fissati dal legislatore e dai giudici in reciproca cooperazione.” (Harlow C., Citizen Access to Political Power in the European Union, cit., which continues noting how “in questo modello la funzione del potere giudiziario diventa la promozione di valori alternativi attraverso lo sviluppo di una giurisprudenza dei diritti e la protezione degli interessi di minoranza contro un processo politico preminentemente maggioritario.”) Various authors are inclined already in favour of the constitutional role of the Court of Justice: Shapiro M., The European Court of Justice, in Sbragia (eds.), Euro-Politics, Institutions and Policymaking in the «New» European Community, 1992, 148; Weiler J. H. H., The Autonomy of the Community Legal Order: through the Looking Glass, in Id., The Constitution of Europe, "Do the New Clothes Have an Emperor?" and Other Essays on European Integration, Cambridge University Press, 1999, 322.

108 Opinion of Mr Advocate General Mischo delivered on 20 September 2001, References for a preliminary ruling from the Court of Session (Scotland), Edinburgh (United Kingdom), Joined cases C-20/00 e C-64/00, par. 126. The case is presented as an intersting one from the constitutional point of view, bearing directly on the protection of fundamental rights, and, more specifically, of the property right. So too scholars begin to advance the hypothesis that one think of the Convention as a possible decision-making instrument even for the adoption of important Community legislation: for example, see Van Gerven W., Codifying European Private Law? Yes, if, E. L. R., 2002, 173: “the use recently made of the «Convention» instrument in view of drafting the European Union Charter of Fundamental Rights may be seen as a precedent, especially now that the instrument has received official confirmation in the Proclamation of Laken on 15 December 2001.”

109 Fioravanti M., La Carta dei Diritti Fondamentali dell’Unione Europea nella prospettiva del costituzionalismo moderno, in Amorosino/Morbidelli/Morisi, Istituzioni Mercato e Democrazia, Liber Amicorum Predieri, 2002, 265: on the contrary, one can also see the success, out of the second Convention, in understanding how well Fioravanti’s thesis is founded. From the previous affirmation of rights in the Community area, numerous authors, including Fioravanti himself, see the creation of a people, that therefore clearly cannot be seen in the old terms of the “pouvoir constituent,” of the original constitutive subject: see too Preuss U., The Constitution of a European Democracy and the Role of the Nation State, cit., 427, who notes how “in a way the relation between constituent power and constitution is reversed (…). However this pouvoir constituent has little to do with the omnipotent creator ex nihilo which Sieyès and Schmitt had in mind.”

110 This position is that sustained by Doehring K., Demokratie and Völkerrecht, cit., 130, starting from the fact that the protection of fundamental rights is ideally guaranteed by democratic decision-making processes and therefore these aspects would go together. But Dohering immediately warns that “der Schuß nicht zwingend ist”. According to Doehring, in fact, it is radically different if one is dealing with international or supranational structures: in the former, de jure, democracy is not required since the components are not the peoples but the States, whereas in the latter - like the Union itself - it is the Treaty itself that requires it. Doehring is skeptical, moreover, about the democracy of the European Union, because even if one admits that it is sui generis, “geht man aber so weit in der Abstraktion einer Demokratie, kann man nahezu jedes System als Demokratie besonderer Art bezeichnen, womit der Begriff der Demokratie jede Anlehnung an ihre Basiselemente verliert.”

111 On this point see Dahl R. A., Introduzione alla scienza politica, (a cura di G. Sartori), Il Mulino, Bologna, 1967, 120. At the same time, it is noted that democracy is not exportable, that is, that a democratic government is the fruit of innumerable variables that cannot be reproduced in other historical or geographic contexts and therefore must be studied on a case-by-case basis. On this topic, the conclusions of Dahl’s work are particularly enlightening: Dahl R. A., A Preface to Democratic Theory, The University of Chicago Press, Chicago, 1956, 151, in consideration of American democracy. Very similar are the observations vis-a-vis the Westminster regime by Bartole S., Democrazia maggioritaria, Enciclopedia del Diritto, 2001, 347.

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