50344_FYRP

Candidate Number: 50344 Final Year Research Project

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UNIVERSITY OF BRISTOL Law School

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Unit Code and Title: LAWD30091: Final Year Research Project

Coursework 1

Candidate Number: 50344

Date due for submission: 18th March 2015

Question number and (abbreviated) title: 5. Legitimacy in the European Union:

Demoicratic Legitimacy and the Ordinary Legislative Procedure

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Demoicratic Legitimacy and the Ordinary Legislative Procedure

Abstract:

This article offers an overview of the emerging concept of demoicracy, and uses it to

evaluate the legitimacy of the Ordinary Legislative Procedure. Demoicracy is defined

as a normative framework that sees legitimacy as being derived from the balance

between the rights of citizens and statespeoples. It is centred on the belief that the

European Union should give critical expression to its multiple ‘demoi’ constituents,

and has to be evaluated with regards to this. Such an evaluation is considered more

appropriate given the contemporary conditions of European Union policy-making,

and provides unique insights. It is found that whilst the Ordinary Legislative

Procedure is demoicratically legitimate in a general sense, it faces major issues with

regards to the representative qualities of its component institutions.


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Table of Contents

Introduction: 4

Chapter 1: Democratic Legitimacy and Realism: 6

Chapter 2: Demoicracy: 9

Chapter 3: Demoicracy and the Ordinary Legislative Procedure: 16

Conclusion: 26

Bibliography: 27


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Introduction

The European Union (hereafter EU) has long been criticised for suffering from a

‘democratic deficit’. At its most basic, this refers to the EU being ‘unresponsive to

democratic pressures’.1 Compared to a traditional nation-state, it is difficult to argue

against this proposition. However, it needs to be appreciated that the institutional

arrangement of the EU has been specifically designed to spread power between the

organisation itself and the Member States.2 This division of power has arisen out of

the constitutional conflict between supranationalism and intergovernmentalism.

Central to this debate is the issue of ‘demos’. This is a complex concept referring to

the complicated psychosocial factors that cause a feeling of ‘belonging’ to a specific

group of people. It is beyond the scope of this essay to explore this notion fully.

Instead, Cheneval and Schimmelfennig’s basic definition will be used: ‘a political

community that shares a purpose, and possesses the institutional infrastructure, of

self-government’. 3 The EU is considered too fragmented in terms of ‘collective

identity, public spheres and intermediary political structures’ for a demos to exist.4 An

important way that this abstraction can be seen to manifest itself is in the reluctance

of populations to forego their individual nation-states.

Demoicracy has since emerged as a novel approach to assessing the legitimacy of the

EU. It contends that in the absence of a European demos, there is a need to represent

1 Craig and de Búrca (2011: 150) 2 McCormick (1997) 3 Cheneval and Schimmelfennig (2013: 337) 4 ibid


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the separate demoi5 of the different European peoples in the transnational system of

governance. It aspires to treat demoi seriously, while simultaneously acknowledging

the limitations of purely intergovernmentalist conceptions. This essay will begin by

developing an appreciation for the limitations of democratic theory in practice.

Following this, demoicracy will be introduced as a concept and justification given for

its use. Finally, the theory will be used to evaluate the legitimacy of the Ordinary

Legislative Procedure (hereafter OLP).

5 Demoi is the plural of demos


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Chapter 1 – Democratic Legitimacy and Realism

In order to truly appreciate the legitimation potential of demoicracy, it is first

necessary to evaluate the rationale behind why democracy is considered such an

important feature of modern societies. This is a very contentious, wide-ranging

subject area, with the meaning of democracy itself being highly contested. In the

broadest possible terms, normative justification stems from ‘people’s recognition and

acceptance of the validity of the rules of their entire political system’. 6 Within

democratic theory, this has arisen through the belief that the system of governance

manifests the ‘collective self-determination’ of a society.7 Citizens, as voters, should

determine for themselves how they are governed.

In its purest form this would involve direct democracy, where people would vote on

policy decisions directly. However, this is generally accepted to be too impractical in

our complex, modern societies.8 There are far too many judgements made on a daily

basis for every person to realistically be able to vote on. Furthermore, the lack of

technical expertise of the average individual in policy-making makes this an

unattractive option. There is consequently a reliance on representatives. It can thus be

seen that, in order for our societies to function effectively, we necessarily accept

constraints on democracy. However, the more that there is a reliance on

representatives, the more abstract the concept of ‘collective self-determination’

becomes.

6 Aragón (2008: 1) 7 Scharpf (1999: 1) 8 Buchanan and Tullock (1962: 213)


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With this in mind, it is important to note that representative democracy has been

criticised as failing to truly deliver what voters want.9 Beyond the choice of governing

personnel, other resources determine the actual policies pursued and implemented.10

There is subsequently a reliance on methods of accountability in order to compel

public authorities to respond to the public interest.11 This can only work effectively if

institutions are transparent and citizens are sufficiently informed. With respect to this,

deliberative democratic theorists highlight the importance of engaging in rational

discussion on political issues. The belief is that democratic legitimacy requires

decisions to be substantiated with rational thought, and not merely the aggregation of

collective preferences. It is difficult to argue against this; the arbitrary exercise of

political power is normatively unappealing.12 Yet are all voters sufficiently engaged?

There is certainly a perception that people are generally apathetic towards politics.13

Despite all this, democracy is defended vehemently: with the grandiose rhetoric of

having ‘the ultimate sovereign power resting with the people’.14 However, what this

means practically is highly contested, and is, nonetheless, unavoidably limited in

many different ways. In its idealist form, it is about giving a populace collective self-

determination with respect to how they are governed. In reality, we are forced to rely

on factors like accountability in order to achieve this in any meaningful sense. The

purpose of this chapter has been to introduce the reader to a brief realist perspective

on this incredibly multifaceted debate. Democracy should not be thought of as an

absolute ideal that is never compromised. This will help one to understand the

9 Benvenisti and Downs (2014) 10 Rokkan (1966) 11 Oliver (1991) 12 See: Gutmann and Thompson (2004) 13 Garcia (2014) 14 Carolan (2012: 176)


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normative justification behind why demoicracy is an acceptable benchmark to assess

the EU’s legitimacy.


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Chapter 2: Demoicracy

Philipe Van Parijs originally coined the word ‘demoi-cracy’.15 Its initial purpose was

‘to give critical expression to the fact that in the EU, the demoi are the primary

subjects to whom accountability is owed.’ 16 Since then, demoicracy has been

developed on the basis that the EU has a hybrid institutional structure, which

incorporates both supranational and intergovernmental features. It is different to the

traditional democratic nation-state. Following from this, it is contended that the EU

should have its legitimacy assessed within an ‘intermediary realm of political justice

between national and international politics’.17

Demoicracy is an alternative normative framework, providing a different perception

of democratic legitimacy in a multinational polity.18 It involves balancing the rights

between statespeoples and citizens in the governance of a supranational organisation.

Its foundations are built upon the same normative justification for democracy of

collective self-determination, and most of its features are the same. However, it is

argued that so long as divisions of ‘demoi’ exist, there is a need to empower their

separate manifestations within the transnational political order. As opposed to

intergovernmentalism, demoicracy embraces the ‘dual character’ of the EU; it is

comprised of both nation-states (which have distinct demoi), and European citizens.19

Demoicratic legitimacy subsequently stems from a normative assessment based on

15 (1997) 16 Cheneval and Schimmelfennig (2013: 334) 17 ibid 18 Borrás and Radaelli (2015) 19 Bohman (2007); Besson (2006); Cheneval et al (2015)


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‘the balance between, and interaction of, the political rights of individuals and those

of the democratically constituted statespeoples’.20

In order to derive standards, academics have relied upon inductive reasoning.21 This

inherently uncertain exercise leads to disagreement amongst theorists, with only

tentative principles ever being offered. 22 Nonetheless, there is consensus that

demoicracy consists of both a horizontal and a vertical dimension, as it is based upon

an acceptance of the multilevel governance structure of the EU. 23 As such, in addition

to the interplay between supranational and domestic institutions, Member States must

also adhere to demoicratic norms between each other. With respect to all this, the

normative core can be said to revolve around ‘transnational non-domination’ and

‘transnational mutual recognition’. In this context, transnational non-domination

refers to the democratic freedom of one state from another’s arbitrary power;

decision-making should involve deliberation and be justifiable. 24 Transnational

mutual recognition then refers to the need for democratic statespeoples to recognise

each other’s political institutions, with an appreciation for their popular sovereignty.25

This involves an acceptance that in some instances authority may be ‘reallocated’ in a

reciprocal manner, such as recognising the validity of foreign laws.26

Demoicracy and the Democratic Deficit

The overall aim with demoicracy is to adequately represent statespeoples and

European citizens in the effective governance of a transnational polity. If this is done

20 Cheneval et al (2015: 2) 21 E.g Rawlsian Constructivism 22 Nicolaïdis (2013); Cheneval and Schimmelfennig (2013) 23 Buess (2015); Hurrelmann (2015) 24 Mueller (2010) 25 Cheneval and Schimmelfennig (2013) 26 Nicolaïdis and Shaffer (2005)


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successfully, the entity is considered to be demoicratically legitimate; and the issues

of the democratic deficit are somewhat negated. Although they continue to exist, they

are comprehended differently. For example, the concern that ‘the European

Parliament has inadequate influence over the Council’ is not considered in isolation.27

The accountability provided through this mechanism is evaluated in conjunction with

that of national electoral systems. There is a change in perception, and new criteria to

assess legitimacy. This contrasts with our traditional conceptions as to how a

democracy should operate. Consequently, there is strong criticism that this

‘compensatory approach’ sells short the democratic ideal; 28 yet other academics

maintain that democratic values are an inappropriate method with which to assess the

legitimacy of the EU.29

Post-National Governance

This normative discussion is complex and prominently situated within the topic of

post-national governance. A fundamental issue is that globalisation is challenging the

already limited ability of the nation-state to pursue a pure democratic ideal.30 As the

world becomes increasingly interconnected, the potential for domination through

external actors increases. 31 For instance, powerful corporations may threaten to

withdraw from countries with taxation regimes or employment policies that they

consider unfavourable.32 A more specific illustration can be seen in the recent Swiss

referendum, where a democratic mandate has been given to set quotas on EU

immigration. The EU has hinted that if this occurs, there will be significant

27 Judge and Earnshaw (2008: 85) 28 de Búrca (2008: 121-9) 29 Warleigh (2003) 30 Macdonald and Ronzoni (2012) 31 Pettit (2010) 32 Bellamy (2013)


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repercussions. 33 As such, the ability of national governments to act freely is

significantly curtailed. External demands need to be satisfied to prevent the economy

from suffering, with the negative consequences that would bring.

Dani Rodrik has gone as far as to posit that only two of the following three elements

can be maintained: integrated national economies, mass politics, and the nation-

state.34 He argues that national governments are incapable of adequately regulating

economic processes of a globalised nature. If the nation-state is maintained with

supranational organisations, then governance becomes split between multiple

constituents, and complications arise. Essentially, the economic advantages of

internationalisation are constraining the ability of the nation-state to act and facilitate

democratic politics. Whilst it is doubtful that any aspect need disappear completely, it

is clear that there are dynamic tensions that need to be accommodated.

All this is exacerbating the issues already present with democracy in its compromised

form within our modern societies. The domain of domestic politics is being

increasingly restricted; the preferences of national electorates are becoming more and

more marginalised. It is difficult to disagree with Moravcsik’s statement that ‘the use

of idealistic standards no modern government can meet obscures the social context of

contemporary European policy-making’. 35 From a realist perspective, democratic

values can be seen as becoming progressively abstract and difficult to attain.

33 Shotter and Spiegel (2014) 34 (2012) 35 (2002: 605)


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Governments subsequently have strong incentives to form associations that are

capable of protecting both their economic and democratic interests.36 Referring to an

earlier example, a strongly enforced EU taxation regime can counterbalance the

power of transnational corporations. Firms may consider operating outside of the EU,

but import tariffs into the internal market may make it more pro fitable to accept the

legislative requirements. This is unlikely to occur through purely intergovernmental

means, as the national interest in attracting firms can undermine the process. This is

perfectly exemplified by the current EU investigations into corporate tax avoidance in

Member States. The cross-border nature of tax avoidance, and the desire for countries

to remain competitive, necessitates a degree of supranationalism for the problem to be

dealt with effectively. 37 Without the desire for federalism, demoicracy attempts to

balance the efficacy benefits against the need to respect demoi.

As an increasing number of issues arise of a transnational nature, it is important from

a legitimacy perspective to allow citizens a stake in this collective decision-making:

more than just indirectly through their governments. As governance becomes more

global, citizens need to exert greater influence on the supranational entities in order to

express their collective self-determination. This is ultimately the key advantage of

demoicracy. If implemented properly, it is more legitimate than intergovernmentalism

because of its emancipatory effects. Citizens are given a direct say in the institutions

that affect them, whilst simultaneously the negative coercion of external actors is

reduced.

36 Bellamy (2013) 37 Rixen (2009)


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Criticism

Despite this, demoicratic theorists are generally pessimistic about the resonance of the

theory,38 which is almost completely absent in most national media discourse.39 As

normative justification is ultimately reliant on any individual’s own perception, this is

a problem. Hurrelman argues that Europeans may generally lack the ‘cognitive and

attitudinal pre-requisite of effective demoi-cratic citizenship’.40 It is not difficult to

see why. State sovereignty has been described as the fundamental principle that

‘anchors our concept of modern politics’; yet it is conflicted with here in a complex

manner. 41 This is arguably the fundamental limitation affecting demoicracy, and

rectifying it may be very demanding. At the very least, bringing an awareness of the

theory into public cognisance should serve to encourage debate. Regardless of

whatever action is taken, it should be appreciated that the aforementioned tensions

over European integration will continue for the foreseeable future. If demoicracy is

not actively pursued, then a less legitimate form of governance may arise out of

constitutional conflict.

Further criticism revolves around the concept of what a ‘demos’ truly is, and the

extent to which the focus on nation-states may exclude certain demoi from European

governance. Within countries like Spain or the United Kingdom, there are ‘peoples’

such as Catalonians or Scots, who may arguably be thought to constitute demoi. As

stated at the outset, it is beyond the scope of this essay to explore the demos problem

fully. For the purposes of this current conceptualisation of demoicracy, the nation-

38 Nïcolaidis (2013) 39 Beetz (2015) 40 Cheneval et al (2015: 9) referencing Hurrelmann (2015) 41 Jackson (1999: 423)


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state is posited to constitute a demos. It is considered, from a realpolitik perspec tive,

that devolution will occur if these demoi truly need to be expressed.

Overall Evaluation of Demoicracy

Demoicracy should not be ignored simply because of the potential difficulties in its

implementation. The practicalities of how the world operates cannot be ignored, and

need to be accounted for. Even if it is not considered appropriate as a distinct

institutional ideal, it still offers a sophisticated insight into the conceptual difficulties

of governance in contemporary conditions. The legitimacy of the EU is being

challenged, and the debate between federalism and intergovernmentalism will persist.

Demoicracy might be quite an abstract concept, but it has real value in its attempt to

provide a balance between the tensions inherent with modern governance.


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Chapter 3: Demoicracy and the Ordinary Legislative Procedure

With this appreciation of demoicracy, the OLP can now be evaluated. This is the main

method by which the EU creates legislation. It has a bicameral structure, which splits

power between two core organs: the Council of the European Union and the European

Parliament (hereafter the EP). The Council of the European Union represents the

individual Member States, whilst the EP represents the European citizens. Defining

the quality of the legislative process is a difficult and highly subjective task,

exacerbated by the lack of clear demoicratic criteria. Overall, centralised rule making

must take adequate account of the two main interest groups. This chapter will analyse

the process of the OLP, assessing the balance of rights between statespeoples and EU

citizens in order to determine its demoicratic legitimacy.

The first element of the OLP that needs to be appreciated is that the European Council

informally sets the policy-making agenda. This institution is comprised of the heads

of state of the Member States, and requires consensus to make decisions. In this way,

the demoicratic principle that the sovereign statespeoples determine policy areas is

respected.42 The supranational elements to the procedure can thus be understood as ‘a

deep commitment mechanism, an instrumental rather than ontological fact.’ 43

Sovereignty is only sacrificed to the extent that it pursues an aim. There is concern

that this prioritises the will of national demoi over the will of European citizens.44

However, demoicracy is viewed from a transformationalist perspective and does not

necessitate equal representation. At present, this imbalance is acceptable as it serves

42 Cheneval et al (2015: 4) 43 Nicolaïdis (2013: 355) 44 Gaus (2014: 12)


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to ‘accommodate the tensions inherent in the pursuit of radical mutual opening

between separate peoples.’45 That is to say that, currently, there is not the desire for

equal representation. The collective European populace is undoubtedly reluctant to

relinquish state sovereignty to this extent.

The European Commission (hereafter the Commission) then submits legislative

proposals to the EP. Although there are mechanisms by which it can be requested to

act, the Commission generally holds the power of legislative initiative and has

rejected requests in the past.46 It is difficult to remedy this feature with demoicratic

legitimacy; the Commission is officially representative of neither demo i nor citizens.

However, it does not operate in a political vacuum. It is managed by a president, who

appoints the other Commissioners and has general control over the Commission’s

work: providing ‘political guidance’ and setting the agenda for weekly meet ings.47

This president is elected by the EP, following proposals from the European Council.

In addition to this, the EP retains a power of censure, and can force the Commission

to resign. All decision-making is done under this shadow. If the Commission fails to

respect its duty to consider the general interest of the Union, it can be removed. In this

way, it is forced to work within parameters acceptable to the EP. However, this is an

extreme method of action, and minor transgressions may simply be accepted out of

convenience. Overall, it should be noted that very few proposals are of the

Commission’s own initiative. 48 This suggests that it predominantly works

harmoniously with the other institutions.

45 Nicolaïdis (2013: 353) 46 Peterson and Shackleton (2012: 179) 47 Chalmers, Davies and Monti (2014: 64-5) 48 Chalmers and Tomkins (2007: 96)


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Ultimately, it must. The Council of the European Union (hereafter the Council) and

the EP determine whether any legislative acts are passed. Despite this, the

Commission’s role should not be underestimated. Its formal monopoly on the

initiation of most legislative acts, combined with its ability to withdraw propo sals

(prior to a third reading), gives it significant agenda-setting power. This allows it to

‘frame the terms of debate and legislation.’49 Justification for this autonomous power

has previously relied upon the Commission’s ability to represent a common European

interest. 50 Provided that this interest incorporates the views of citizens and

statespeoples, it should be acceptable from a demoicratic perspective. To ensure this,

the Commission should not exert such influence without stronger mechanisms of

accountability, regardless of any technocratic credentials. One potential change might

be to extend the power of censure to the Council, so that its views wield more

influence over the Commission.

Following the initiation of legislation, the bill is then sent between the EP and the

Council. The proposal is scrutinised and amendments are drafted, before it is then

voted on. It travels between the Council and the EP until either agreement is reached

or the bill is abandoned. In theory this process should provide an adequate balance

between the demoi of Member States and EU citizens. This is because both sides are

forced to reach agreement with each other for any legislative act to take effect.

However, the EU has a sui generis structure, and this is a gross oversimplification. It

is necessary to consider whether these institutions are truly representative of their

constituents.

49 ibid: 97 50 Featherstone (1994: 154-5)


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Representative Quality of the Council

The Council is composed of one minister from each country, a representative of their

government. To the extent that a demos has intrinsic value, it is fair to have this equal

representation. However, executives are often unreflective of overall voter

preferences. Furthermore, their dominance of parliament has been found to restrict

ministerial accountability as members of parliament outside of the government can

only seek to influence.51 Research has shown that the majority of national parliaments

lack the necessary competences to act on EU legislation. 52 This problem is

exacerbated further by the fact that European issues have lacked salience in domestic

elections, weakening the accountability that would be provided through voters

electing a new executive.53

Accountability is thus weak, though it would be unrealistic to expect the views of all

parliaments to be fully represented within the Council. It would be too impractical -

given the scope for potential conflict and available resources - for this to result in an

effective form of governance. Demoicratic theorists have therefore generally accepted

the role of statespeoples as necessary. 54 Instead, oversight institutions might be

considered a more appropriate means of increasing the accountability of executives.

These bodies can scrutinise government policy in the EU and ensure national

parliaments are sufficiently informed. For example, they can prevent executives from

selectively sharing information. Unfortunately, these institutions have been criticised

as generally being weak.55 Strengthening them with increased resources and powers

51 Besselink (2006: 119) 52 Winzen (2012b) 53 Bellamy (2013: 9) 54 Cheneval and Schimmelfennig (2013); Nicolaïdis (2013) 55 Winzen (2012a)


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could lead to the executive being more responsive to the public interest. This would

result in them better reflecting the collective will of national demoi.

Following this, the methods of voting need to be evaluated. QMV is the most

common method used, requiring a number of factors to be fulfilled: 55 per cent of the

members of the Council, with at least 15 members, and these must comprise at least

65 per cent of the population. The requirements are stricter if the Council is not acting

on a Commission proposal. Furthermore, a number of more politically sensitive areas

require unanimity. This requirement of a certain degree of consensus prevents the

arbitrary exercise of political power. Demoi are protected to the extent that there is

enough consensus to form a blocking minority. This would seem a fair compromise,

in light of the need for effective governance. However, a small increase to the

members of the Council required for QMV could serve to better protect demoi

without significantly reducing efficiency.

Overall, statespeoples are adequately represented within the Council. However,

accountability to their national parliaments ought to be increased. This is needed to

ensure that the Council better reflects a broader view of opinion from the Member

States and is more responsive to their interests. In this way, demoicracy is reliant on

Member States embracing the dual character nature of the transnational political

order.

Representative Quality of the EP

Acknowledging the importance of demoi, there have been attempts to give them

expression through other means. One such way is that European citizens are


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represented by Members of European Parliament (MEPs) in a ‘degressively

proportional’ manner. This means that the citizens of smaller Member States have

their influence increased at the expense of larger nations. This unequal representation

can be considered acceptable from a demoicratic perspective, as the complexities of

the demos problem mean that simply expressing the will of the majority would cause

tension. This shift away from majoritarian logic thus serves to compensate for

population asymmetries.56 In this way, a broader spectrum of political opinion from

different countries is more likely to be represented.

However, the EP is meant to represent the interests of EU citizens, not demoi. A

crucial issue here is that, despite being grouped into European parties, MEPs remain

predominantly affiliated to their national counterparts.57 This means that they tend to

vote inline with national party policy, 58 and are particularly influenced over

contentious issues.59 As such, a European sphere of debate in which European issues

are put first cannot be said to exist. The EP’s claim to represent EU citizens is thus

weakened by the precedence afforded to the views of national citizens. It may be

difficult to overcome this issue, but increased independence of MEPs from national

party politics might help. This would give them more freedom to represent the

European interest. Although it might be unpopular, strengthening the EP so that it is

on an equal footing to national governments over constitutional matters could also

serve to ‘change the frame through which the EU is perceived.’ 60 This would

56 Nicoloaïdis (2013: 363) 57 Bellamy (2010: 10) 58 Hix (2002) 59 Hagemann and Høyland (2010) 60 Gaus (2014: 14)


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encourage citizens to appreciate the importance of the organisation, and subsequently

better involve themselves within the European political sphere.

A further issue to analyse is that the EP requires an absolute majority to change the

Council’s position after a first reading. Failure to achieve this results in the act being

passed. In contrast to this, the failure to reach a qualified majority in the Council

would simply result in the status quo being maintained. It is easier to accept a

proposal than amend or reject it. It has thus been argued that this gives the Council

agenda-setting power, as the EP will generally forward proposals to the Council likely

to be accepted at first reading.61 This might come at the expense of the EP’s own

interests: lessening the representation of EU citizens. It is questionable whether an

imbalance of this nature is acceptable, given that the heads of state already set the

overarching policy-making agenda.

Overall though, it should be appreciated that the EP still possesses the same basic

representative character of its national counterparts. Voter turnout is generally not too

different to national standards, and MEPs are still voted for with respect to their

policies. The main issue with regards to its representative quality ultimately appears

to depend on whether or not the European citizens are able and willing to accept a

demoicratic order. Citizens need to embrace the ‘dual character’ and involve

themselves with European politics.

The role of National Parliaments

To further increase the role of demoi in the process, the Lisbon Treaty expanded the

Early Warning System: giving national parliaments a formal role in the OLP. Draft

61 Hagemann and Høyland (2010)


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legislation is sent to national parliaments and reviewed for its compliance with the

principle of subsidiarity. This is a process whereby a simple majority of votes cast

declaring non-compliance with the principle of subsidiarity forces the Commission to

review its proposal.62 If the legislative draft is subsequently maintained, then it must

be justified. Following this, all reasoned opinions on the matter will be considered by

the Union legislator during the OLP.

In this way, national parliaments do not contribute to the procedure other than to

prevent encroachment upon their own powers. It does not appear to enhance the

quality of EU legislation, and may even serve to obfuscate representative

democracy.63 Citizens may be confused as to which institutions are representing their

interests at different levels. Despite this, it has been argued that it has limited

demoicratic value in the way that it provides ‘a strategic channel of direct

communication between Commission and parliaments’. 64 This allows for any

significant opinions of demoi that are not represented by Council Ministers to get

representation within the OLP. However, this is contingent upon the Commission

breaching the subsidiarity principle. As such, this is a very weak method of including

demoi within the process, and does not account for the lack of representativeness in

the Council.

Overall Evaluation

As a final point, it needs to be appreciated that in practice the OLP emphasises the

need for co-operation.65 It is in the interests of all parties to reach agreement, and the

62 Article 7(3) of Protocol (No 2), Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47 63 de Wielde (2012) 64 Goldoni (2014: 11) 65 Craig and de Búrca (2011: 127-8)


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views of all stakeholders should be continuously taken into account. No individual

institution truly operates in isolation. As part of this process, ‘trilogues’- forums with

very few representatives from the Council, Commission and EP- attempt to facilitate

compromise. It is estimated that these are used in 76 per cent of Commission

proposals under the OLP.66 There are concerns that these cause actors to involve

themselves less in deliberation, under the knowledge that some form of consensus

will likely have been reached. 67 A lack of debate from representative institutions

means that decision-making is less likely to be reflective of the views that they should

be giving expression to.

This appears to be a key overarching issue with the OLP. It is an amalgamation of

different interactions designed to facilitate compromise, rather than a procedure

geared towards expressly representing different sources of interest. Demoicratic

legitimacy could be improved by a clearer separation of interest representation, and

increased deliberation at different levels. There should be more positive input into the

process as opposed to a simple absence of vetoing legislative acts. Perhaps the main

problem with this is the lack of a European sphere of debate. This is needed to ensure

that European citizens’ views are more adequately represented in the EP. One way of

achieving this might be to construct a European party system separate from any

national counterparts. At the very least, the perception of the EP as a ‘second order’

parliament needs to end.

Overall, the general structure of the OLP, despite being extremely convoluted,

provides a good balance between citizens and statespeoples. It is in this sense

66 Kardasheva (2009: 25) 67 Häge and Naurin (2013)


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demoicratically legitimate. However, this relies largely upon the extent to which one

is prepared to accept limitations to representativeness in contemporary conditions. In

particular, it is difficult to argue that the Council ministers manifest the collective

self-determination of their respective demoi sufficiently. A version of demoicracy that

relies upon a more theoretical conception of demoi instead of statespeoples would

lead to a different conclusion.


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Conclusion

The postulate of EU demoicracy may provide the best method of realising the

collective self-determination of the European populace in contemporary conditions.

At the very least, it acts as a formidable conceptual tool, providing unique insights

into how the legitimacy of the EU might be improved. In this article, the OLP was

evaluated through a demoicratic lens. It was ultimately determined that, whilst it is

legitimate in a basic sense, there are undoubtedly areas that could be improved. A key

issue is the lack of representative character of its component institutions. Increased

accountability through oversight mechanisms might provide an important method of

addressing this matter, though there may also need to be a significant shift in EU

citizens’ cognisance of the transnational order.


27

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