The European Union Belongs to its Citizens: Three Immodest Proposals’ (1997) 22 el rev 150–56



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The European Union Belongs to its Citizens: Three Immodest Proposals’ (1997) 22 EL REV 150–561

JHH Weiler, Manley Hudson Professor of Law and Jean Monnet Chair, Harvard University; Co-Director, Academy of European Law, European University Institute, Florence

[1] ‘Despite its rhetorical commitment to a Union…which belongs to its citizens’, the recent Irish Presidency IGC draft has precious little in the way of empowering individual citizens of the Union. This essay presents three suggestions from a broader study presented to the European Parliament which are designed to increase the democratic and deliberative processes of Community and Union governance. The first, the European Legislative Ballot, proposes a form of limited ‘direct democracy’ appropriate for the Union. The second, the ‘Lexcalibur initiative’, proposes placing Community and Union decision making on the Internet to enhance accessibility and transparency of Community decision making. The last proposes the creation of a Constitutional Council, modelled on its French namesake, to adjudicate, ex ante, challenges to the legislative competencies of the Community legislator.



Introduction

[2] Cast your mind back to the heady days of the Maastricht Treaty. The Mandarins heralded a remarkable diplomatic achievement: a new Treaty, new name, new pillars and above all a commitment to Economic and Monetary Union within the decade. Recall now the reaction in the European street ranging from fear and hostility through confusion and incomprehension to indifference and outright apathy. The Danes voted against that Treaty, the French approved it by a margin of barely 1% and most commentators agree that had it been put to public scrutiny in, say, Great Britain or even Germany the outcome would have been far from certain. Even those who supported it were motivated in large part by a ‘what’s-in-it-for-me’ calculus—a shaky foundation for long term civic loyalty.

[3] The reaction in the street did not relate only or even primarily to the content of the Treaty; it was the expression of a growing disillusionment with the European construct as a whole the moral and political legitimacy of which were in decline. The reasons for this are many but clearly, on any reading, as the Community has grown in size, in scope, in reach and despite a high rhetoric including the very creation of ‘European Citizenship’, there has been a distinct disempowerment of the individual European citizen, the specific gravity of whom continues to decline as the Union grows.

[4] The roots of disempowerment are many but three stand out.

First, is the classic so called ‘Democracy Deficit’: the inability of the Community and Union to develop structures and processes which would adequately replicate at the Community level the habits of governmental control, parliamentary accountability and administrative responsibility which are practised with different modalities in the various Member States. Further, as more and more functions move to Brussels, the democratic balances within the Member States have been disrupted by a strengthening of the ministerial and executive branches of government. The value of each individual in the political process has inevitably declined including the ability to play a meaningful civic role in European governance.

[5] The second root goes even deeper and concerns the ever increasing remoteness, opaqueness, and inaccessibility of European governance. An apocryphal statement usually attributed to Jacques Delors predicts that by the end of the decade 80% of social regulation will be issued from Brussels. We are on target. The drama lies in the fact that no accountable public authority has a handle on these regulatory processes. Not the European Parliament not the Commission, not even the governments. The press and other media, a vital estate in our democracies are equally hampered. Consider that it is even impossible to get from any of the Community Institutions an authoritative and mutually agreed statement of the mere number of committees which inhabit that world of comitology. Once there were those who worried about the supranational features of European integration. It is time to worry about infranationalism—a complex network of middle level national administrators, Community administrators and an array of private bodies with unequal and unfair access to a process with huge social and economic consequences to everyday life—in matters of public safety, health, and all other dimensions of socio-economic regulation. Transparency and access to documents are often invoked as a possible remedy to this issue. But if you do not know what is going on, which documents will you ask to see? Neither strengthening the European Parliament nor national parliaments will do much to address this problem of post-modern governance which itself is but one manifestation of a general sense of political alienation in most western democracies.

[6] The final issue relates to the competencies of the Union and Community. In one of its most celebrated cases in the early 1960s, the European Court of Justice described the Community as a ‘…new legal order for the benefit of which the States have limited their sovereign rights, albeit in limited fields’ (Van Gend en Loos Case 26/62 [1963] ECR 1). There is a widespread anxiety that these fields are Limited no more. Indeed, not long ago a prominent European scholar and judge wrote that there simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community’. (Lenaerts, ‘Constitutionalism and the many faces of Federalism’ (1990) 38 AJ Com L 205, 220. The Court, too, has modified its rhetoric; in its more recent Opinion 1/91 it refers to the Member States as having limited their sovereign rights ‘…in ever wider fields’: Opinion 1/91 [1991] ECR 1–6079, para 21.)

[7] We should not, thus, be surprised by a continuing sense of alienation from the Union and its Institutions.

[8] In the Dublin Summit the present thinking of the IGC has been revealed in a document entitled The European Union Today and Tomorrow’. The opening phrase of the document reads: ‘The European Union belongs to its Citizens’. But don’t hold your breath when it comes to the actual proposals. They are very modest. The second phrase of the new text reads: ‘The Treaties establishing the Union should address their most direct concerns.’ There is much rhetoric on a commitment to employment, there are a few significant proposals on free movement, elimination of gender discrimination and other rights. There are some meaningful proposals to increase the powers of the European Parliament and even to integrate formally, even if in limited fashion, national legislatures into the Community process. But overall, the net gainers are, again, the governments. At best, this is the ethos of benign paternalism. At worst, the proposals represent another symptom of the degradation of civic culture whereby the citizen is conceived as a consumer— a consumer who has lost faith in the Brand Name called Europe and who has to be bought off by all kind of social and economic goodies, a share holder who must be placated by a larger dividend. It is End-of-Millennium Bread and Circus governance.

[9] What can be done? Here is a package of three proposals plucked from a recent study commissioned by the European Parliament which my collaborators and I believe can make a concrete and symbolic difference. (JHH Weiler, Alexander Ballmann, Ulrich Haltern, Herwig Hofmann, Franz Mayer, Sieglinde Schreiner-Linford, Certain Rectangular Problems of European Integration, European Parliament, 1996.) We also believe that they could be adopted without much political fuss. You decide.



Proposal 1: the European legislative ballot

[10] The democratic tradition in most Member States is one of representative democracy. Our elected representatives legislate and govern in our name. If we are unsatisfied we can replace them at election time. Recourse to forms of direct democracy—such as referenda—are exceptional. Given the size of the Union, referenda are considered particularly inappropriate.

However, the basic condition of representative democracy is, indeed, that at election time the citizens ‘…can throw the scoundrels out’—that is replace the Government. This basic feature of representative democracy does not exist in the Community and Union. The form of European governance is— and will remain for considerable time—such that there is no ‘Government’ to throw out. Even dismissing the Commission by Parliament (or approving the appointment of the Commission President) is not the equivalent of throwing the Government out. There is no civic act of the European citizen where he or she can influence directly the outcome of any policy choice facing the Community and Union as citizens can when choosing between parties which offer sharply distinct programmes. Neither elections to the European Parliament nor elections to national Parliaments fulfil this function in Europe. This is among the reasons why turnout to European Parliamentary elections has been traditionally low and why these elections are most commonly seen as a mid-term judgment of the Member State Governments rather than a choice on European governance.

[11] The proposal is to introduce some form of direct democracy at least until such time as one could speak of meaningful representative democracy at the European level. Our proposal is for a form of a Legislative Ballot Initiative coinciding with elections to the European Parliament Our proposal is allow the possibility, when enough signatures are collected in, say, more than five Member States to introduce legislative initiatives to be voted on by citizens when European elections take place (and, after a period of experimentation possibly at other intervals too). In addition to voting for their MEPs, the electorate will be able to vote on these legislative initiatives. Results would be binding on the Community institutions and on Member States. Initiatives would be, naturally, confined to the sphere of application of Community law—that is, in areas where the Community Institutions could have legislated themselves. Such legislation could be overturned by a similar procedure or by a particularly onerous legislative Community process. The Commission, Council, Parliament or a national parliament could refer a proposed initiative to the European Court of Justice to determine—in an expedited procedure—whether the proposed ballot initiative is within the competencies of the Community or is in any other way contrary to the Treaty. In areas where the Treaty provides for majority voting the Ballot initiative will be considered as adopted when it wins a majority of votes in the Union as a whole as well as within a majority of Member States. (Other formulae could be explored.) Where the Treaty provides for unanimity a majority of voters in the Union would be required as well as winning in all Member States.

[12] Apart from enhancing symbolically and tangibly the voice of individuals qua citizens, this proposal would encourage the formation of true European parties as well as transnational mobilisation of political forces. It would give a much higher European political significance to Elections to the European Parliament. It would represent a first important step, practical and symbolic, to the notion of European citizenship and civic responsibility.

Proposal 2: Lexcalibur—the European public square

[13] This would be the single most important and far reaching proposal which would have the most dramatic impact on European governance. It does not require a Treaty amendment and can be adopted by an Inter-Institutional Agreement among Commission, Council and Parliament. It could be put in place in phases after a short period of study and experimentation and be fully operational within, we estimate, two to three years. We believe that if adopted and implemented it will, in the medium and long term, have a greater impact on the democratisation and transparency of European governance than any other single proposal currently under consideration by the IGC.

[14] Even if it does not require a Treaty amendment we recommend that it be part of the eventual IGC package as a central feature of those aspects designed to empower the individual citizen.

[15] We are proposing that—with few exceptions—the entire decision-making process of the Community, especially but not only Comitology—be placed on the internet.

[16] For convenience we have baptised the proposal: Lexcalibur—the European public square.

[17] We should immediately emphasise that what we have in mind is a lot more than simply making certain laws or documents such as the Official Journal more accessible through electronic data bases.

[18] We should equally emphasise that this proposal is without prejudice to the question of confidentiality of process and secrecy of documents. As shall transpire, under our proposal documents or deliberations which are considered too sensitive to be made public at any given time could be shielded behind ‘fire-walls’ and made inaccessible to the general public. Whatever policy of access to documentation is adopted could be implemented on Lexcalibur.

[19] The key organisational principle would be that each Community decision making project intended to result in the eventual adoption of a Community norm would have a ‘decisional web site’ on the Internet within the general Lexcalibur ‘Home Page’ which would identify the scope and purpose of the legislative or regulatory measure(s); the Community and Member States persons or administrative departments or divisions responsible for the process; the proposed and actual timetable of the decisional process so that one would know at any given moment the progress of the process, access and view all non-confidential documents which are part of the process and under carefully designed procedures directly submit input into the specific decisional process. But it is important to emphasise that our vision is not one of ‘Virtual Government’ which will henceforth proceed electronically. The primary locus and mode of governance would and should remain intact: Political Institutions, meetings of elected representative and officials, Parliamentary debates, media reporting—as vigorous and active a public square as it is possible to maintain, and a European Civic Society of real human beings. The huge potential importance of Lexcalibur would be in its secondary effect: It would enhance the potential of all actors to play a much more informed, critical and involved role in the Primary Public Square. The most immediate direct beneficiaries of Euro governance on the Internet would in fact be the media, interested pressure groups, NGOs and the like. Of course, also ‘ordinary citizens’ would have a much more direct mode to interact with their process of government. Providing a greatly improved system of information would, however, only be a first step of a larger project. It would serve as the basis for a system that allows widespread participation in policy-making processes so that European democracy becomes an altogether more deliberative process through the posting of comments and the opening of a dialogue between the Community Institutions and interested private actors. The Commission already now sometimes invites email comments on its initiatives. (See, for example, its draft notice on cooperation with national authorities in handling cases falling within Arts 85 or 86 [1996] OJ C262/5.) Such a system obviously needs a clear structure in order to allow a meaningful and effective processing of incoming information for Community Institutions. Conceivable would be, for example, a two-tier system, consisting of a forum with limited access for an interactive exchange between Community Institutions and certain private actors and an open forum where all interested actors can participate and discuss Community policies with each other. This would open the unique opportunity for deliberations of citizens and interest groups beyond the traditional frontiers of the Nation State, without the burden of high entry costs for the individual actor.

[20] Hugely important, in our view, will be the medium and long term impact on the young generation, our children. For this generation, the internet will be—in many cases already is—as natural a medium as to older generations were radio, television and the press. European Governance on the net will enable them to experience government at school and at home in ways which are barely imaginable to an older generation for whom this New Age ‘stuff’ is often threatening or, in itself, alien.

[21] The idea of using the internet for improving the legitimacy of the European Union may seem to some revolutionary and in some respects it is. Therefore its introduction should be organic through a piecemeal process of experiment and re-evaluation but within an overall commitment towards more open and accessible government.

[22] There are dimensions of the new Information Age which have all the scary aspects of a ‘Brave New World’ in which individual and group autonomy and privacy are lost, in which humanity is replaced by ‘machinaty’ and in which Government seems ever more remote and beyond comprehension [and grasp the perfect setting for alienation captured most visibly by atomised individuals sitting in front of their screens and ‘surfing the net’.

[23] Ours is a vision which tries to enhance human sovereignty, demystify technology and place it firmly as servant and not master. The internet in our vision is to serve as the true starting point for the emergence of a functioning deliberative political community, in other words a European polity cum civic society.

[24] For those who wish to see what this might look like we have prepared a simulation of Lexcalibur: www.iue.it/AEL/EP/Lex/index.html.

Proposal 3: limits to growth

[25] The problem of competencies is, in our view, mostly one of perception. The perception has set in that the boundaries which were meant to circumscribe the areas in which the Community could operate have been irretrievably breached. Few perceptions have been more detrimental to the legitimacy of the Community in the eyes of its citizens. And not only its citizens. Governments and even courts, for example the German Constitutional Court, have rebelled against the Community constitutional order because, in part, of a profound dissatisfaction on this very issue. One can not afford to sweep this issue under the carpet. The crisis is already there. The main problem, then, is not one of moving the boundary lines but of restoring faith in the inviolability of the existing boundaries between Community and Member State competencies.

[26] Any proposal which envisages the creation of a new Institution is doomed in the eyes of some. And yet we propose the creation of a Constitutional Council for the Community, modelled in some ways on its French namesake. The Constitutional Council would have jurisdiction only over issues of competencies (including subsidiarity) and would, like its French cousin, decide cases submitted to it after a law was adopted but before coming into force. It could be seized by the Commission, the Council, any Member State or by the European Parliament acting on a majority of its members. We think that serious consideration should be given to allowing Member State Parliaments to bring cases before the Constitutional Council.

[27] The composition of the Council is the key to its legitimacy. Its President would be the President of the European Court of Justice and its members would be sitting members of the constitutional courts or their equivalents in the Member States. Within the European Constitutional Council no single Member State would have a veto power. All its decisions would be by majority.

[28] The composition of the European Constitutional Council would, we believe, help restore confidence in the ability to have effective policing of the boundaries as well as underscore that the question of competencies is fundamentally also one of national constitutional norms but still subject to a binding and uniform solution by a Union Institution.

[29] We know that this proposal might be taken as an assault on the integrity of the European Court of Justice. That attitude would, in our view, be mistaken. The question of competencies has become so politicised that the European Court of Justice should welcome having this hot potato removed from its plate by an ex ante decision of that other body with a jurisdiction limited to that preliminary issue. Yes, there is potential for conflict of jurisprudence and all the rest—nothing that competent drafting cannot deal with.



[30] The IGC has proclaimed that the European Union belongs to its citizens. The proof of the pudding will be in the eating.

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