First class EU law essay example: What is meant by the 'democratic deficit' in the EU? Do you consider that it is a problem? Have the Treaties of Maastricht and/or of Amsterdam and/or of Nice and/or of Lisbon addressed it satisfactorily? What further reforms do you think might be necessary?

This essay will make four related arguments in respect of the EU and its democratic legitimacy. First, it will argue that the claim about the existence of a democratic deficit in the EU encompasses different criticisms, but that they can all largely be understood to stem from similar core concerns. Second, it will argue that the EU does indeed suffer from a democratic deficit and that it is a problem because it undermines the Union's legitimacy. Third, this essay will argue that the Treaties of Maastricht, Amsterdam, and Lisbon, have not addressed the problem satisfactorily. Fourth, and finally, this essay will argue that further reforms, geared toward increasing the power of national parliaments and courts with respect to the Union, are necessary to more satisfactorily address the problem of the EU's democratic deficit.

For the purposes of this essay, whether the EU's legal and political regime is satisfactory will be assessed by reference to the degree to which it strikes a fair balance between competing aims, particularly practical effectiveness in achieving large scale economic and social goals and respect for democratic principles.

The meaning of the EU's democratic deficit

The claim that there is a democratic deficit in the EU encompasses a variety of criticisms focusing on different features of the EU regime, but these criticisms can be said to rest on similar misgivings about the EU's legal and political arrangements. Critiques that the EU suffers from a 'democratic deficit' might centre on the perceived disconnect between EU institutions' exercise of power and electoral accountability. The argument here is that EU citizens lack the means of exerting the kind of influence over the EU's law-making process which they would have in a satisfactorily democratic regime. This is because the Union divides its legislative powers between the Commission, the Council, and the European Parliament (henceforth 'EP'), so that EU citizens have direct, electoral control over the legislative process only through their direct, electoral control of the last of those institutions. A different, though related, strand of the 'democratic deficit' critique focuses on the executive dominance to which the EU regime is said to be subject. Owing to the prominent, if not pre-eminent, roles of the Council and the European Council in the EU's law- and decision-making processes, expansion of EU competence is thought to carry with it the risk of transfer of legislative power away from national legislatures and toward the executives wielding power in EU institutions. Other critiques made in the claim that the EU suffers from a democratic deficit centre on the complexity and lack of transparency of the Union's decision-making processes. This allegedly allows committees to bypass democratic procedures, which in turn adds to the perceived distance separating EU citizens from Union decisions. Another source of that sense of separation, one which feeds the final family of criticisms as to the democratic deficit in the EU, is the perceived asymmetry in the EU's tendency to prioritise economic issues at the expense of social ones.

This last strand of the democratic deficit critique marks the step from the realm of input legitimacy, which has to do with the democratic character of a regime's procedures, to the realm of output legitimacy, which concerns the extent to which a regime achieves its citizens' goals while remaining committed to democratic principles. In so doing, it brings us to this essay's argument that the criticisms falling under the claim that there is a 'democratic deficit' in the EU, though focusing on different aspects and consequences of the EU's legal and political arrangements, stem from a similar concern: namely, that the relations of authority which the EU creates through its decision-making, and according to which the EU's citizens organise their lives in common, do not depend as much as they should on those citizens' wishes and on democratic values more generally. Thus understood, the democratic deficit claim cuts across input and output considerations (because it may claim that the consequence of democratically deficient procedures is policy inconsistent with citizens' wishes and/or democratic values) and instead focuses on the underlying question of justifying political and legal authority.

The problem of the democratic deficit

The democratic deficit is a problem insofar as it undermines the EU's legitimacy. The EU's political and legal arrangements would benefit from greater legitimacy if they struck a fairer balance between, on the one hand, the need to be practically effective in achieving economic and social goals on a very large scale, and, on the other hand, the need to respect democratic principles. That would require arrangements which give citizens more influence over the Union's decision-making process. As seen above, the only EU institution which EU citizens directly elect, and so which is electorally accountable, is the EP. Although this institution, following the Maastricht and Lisbon Treaties, is now a co-legislator, it is still very much subject to the Commission's, the Council's, and the Council of Ministers' control over legislative initiative and the general policy direction of the Union. As Follesdal and Hix contend, electoral competition for these roles of political leadership at the European level is absent, and this significantly undermines the EU's democratic legitimacy because it deprives citizens of choice as to the policies which will determine the organisation of their lives in common.

A possible counter to this argument is that there are other means of ensuring institutional accountability besides the electoral. The CJEU, for example, can help limit Union action to that allowed by the Treaties to which Member States–and their directly elected national parliaments–voluntarily assented, thereby guaranteeing a measure of (indirect) democratic accountability. One problem with this counterargument is that it overestimates the CJEU's effectiveness in restraining Union action under broad Treaty provisions. With respect to EU competence under Article 114 TFEU, for example, the Court has in cases like Swedish Match and Alliance for Natural Health departed from its competence-restricting position in Tobacco Advertising that Article 114 TFEU's predecessor did not vest in the Community's institutions a general power to regulate the internal market. In light of this competence-enabling attitude of the Court before and since Tobacco Advertising, Wyatt has gone so far as to conclude that the Community's law-making competence "amounts to a competence to regulate society". While this may be going a step too far, it remains that the EU institutions' power to legislate in order to achieve the Treaty objectives is (and needs to be) a broad one, having extensive effects on many aspects of citizens' lives. It is because of their nature and extent that those effects ought to follow from decisions in the making of which citizens are more closely involved.

This point can be extended to defeat broader arguments against the relevance of the democratic deficit as a challenge to the EU's legitimacy. It may well be true, as Moravscik argues, that the EU regime adequately protects its citizens against arbitrary and potentially corrupt state power; and it is certainly true that so doing is an important aspect of, and justification for, any democratically legitimate regime. But the democratic justification for a regime like the EU, which needs broad powers to legislate in order to carry to fruition its project of integration, itself needs to be broader: as Craig makes clear, it is the link between the values by which a polity's people choose to live and that people's participation in the determination of those values that fundamentally justifies democracy. This link, however, extends beyond the principled justification of democracy. Indeed, the strain under which the absence of greater democratic participation places the EU's legitimacy may also undermine the Union's very project of integration: without the necessary legitimacy, it is built on faultlines which its opponents–within or outside its borders–will doubtless exploit. The compromise the EU's regime currently strikes in favour of practical effectiveness and at the expense of democratic participation is therefore flawed on its own terms: not only are there principled reasons against tolerating this state of affairs, but also the very achievement of the Union's integration goals–in part at least a practical consideration–demands that greater influence be given to citizens' participation in the decision-making process.

Unsatisfactory Treaty reform

Although the series of Treaties from Maastricht's to Lisbon's made changes to the EU's institutional regime, and in so doing enhanced democratic participation and representation, it did not achieve a satisfactory compromise between the need to further the Union's ability to achieve economic and social goals on a large scale and the need to respect democratic principles. It is true that the Maastricht and Amsterdam Treaties, for example, significantly added to the EP's power in the EU's legislative process by respectively introducing and consolidating the co-decision procedure, allowing the EP to block legislation, to block a new Commission, and to request from the Commission that it initiate legislation. The Maastricht Treaty also established the principle of subsidiarity, which has served to delineate areas in which action is best carried out at national instead of Union level, thus preserving the influence of national parliaments–which are more closely accountable to the electorate–over those areas. The Lisbon Treaty further enhanced the control national parliaments, and so national electorates, could exert over Union decisions through its introduction of the yellow/orange card procedure. This Treaty also strengthened the EU's democratic legitimacy by adding to the EP's powers through the expansion of the areas in which the ordinary legislative procedure applies, and by introducing citizen's initiatives to move the Commission to propose legislation. The recognition of the need for greater democratic legitimacy is also more generally apparent in the systematisation of the use of Impact Assessments, which require a comprehensive analysis of the effects of proposed legislation on different stakeholders, at the outset of the legislative process. In short, then, Treaty reforms have tended toward greater democratic participation.

This trend, however, has not gone far enough in promoting democratic principles, and it has therefore not achieved a fair balance between the demands of those principles and the need to preserve the Union's ability to further and maintain greater integration. The power of national parliaments to scrutinise the Commission's proposals, for example, is limited to issues of compliance with the subsidiarity principle. This leaves out questions of proportionality the overseeing of which national parliaments could profitably take responsibility for. Similarly, citizens' initiatives do not compel the Commission to make proposals, but merely set up a dialogue between this institution and EU citizens. Impact Assessments face the same problem: they are not legally binding and so have no teeth with which to protect democratic participation. The overall outcome is that the EU's legal and political arrangements still allow the Commission, the Council, and the European Council to very much determine the direction of EU policy at the expense of the more democratically accountable institutions (i.e. the EP and national parliaments). This, again, undermines the Union's democratic legitimacy.

Better options for reform

Further reforms are therefore necessary to strengthen the EU's legitimacy and so its project of integration. First, the role of national parliaments in scrutinising the Commission's proposals should be extended to issues of proportionality. This would strengthen political controls guaranteeing greater democratic accountability. Second, this political control should be supplemented with greater legal control of Union action. Specifically, reform should work to give Impact Assessments more weight in the CJEU's review of the Union's legislative compliance with the principle of subsidiarity. Departures from Impact Assessments which have been found to be procedurally and substantively satisfactory with regards to subsidiarity should require a high degree of justification, so that we can move beyond the "low intensity review that currently prevails".

In conclusion, the EU's democratic deficit is a problem insofar as it undermines its legitimacy and thereby casts doubt on the long-term viability of its integration project. Although Treaty reforms have gone some way in remedying this problem, a better solution would strengthen political and legal controls on Union action by adding to the powers of national parliaments and courts respectively.