Introduction

Democratic legitimacy is a cornerstone to democratic governance. Yet, genuine legitimisation of said government cannot be justified purely on de jure grounds (ie., ‘on paper’ or purely in law). Indeed, popular consent must equally possess a de facto, socio-psychological element if a democratic institution is to be worthy of such an adjective. That is, effective means for democratic legitimacy may exist in law but if public opinion thereof perceives otherwise or simply rejects a will to legitimise an institution in the first place, a democratic deficit may equally arise. As put by the European Parliament (hereinafter, ‘Parliament’) in 1982, ‘European unification will only be achieved if Europeans want it.’

The following paper does much to categorise and differentiate the various forms of ‘democratic deficit’ which ostensibly transpire within the EU. Taking advantage of the plethora of academic debate on the subject, five primary factors allegedly fuelling the democratic deficit are extrapolated: (1) executive federalism; (2) parliamentary influence; (3) European elections; (4) the euro-‘demos’; (5) and legislative bypass. These issues are then sub-unified into two categories: institutional and socio-psychological. Here we ascribe institutional as what is inscribed in the EU’s institutional legal framework, in contrast to socio-psychological which relates to public perception. What follows from this is a comparative examination of the EU’s internal governance vs external action, judged against these predetermined factors of democratic deficit to determine the extents thereof. Finally, an analysis of the prospects of increasing the democratic legitimacy of the EU’s external relations competence through the Parliament is conducted, with the obstacles thereof flowing from the vital conclusions obtained in the previous two sections.

What is deduced is the following. The European Union’s (EU) internal governance suffers from an inadequate institutional democratic legitimacy coexisting with a socio-psychological democratic deficit fuelled by the lack of a ‘euro-demos’. Conversely, the EU’s external dimension suffers from the same lack of socio-psychological democratic legitimacy along with a unique and far more inadequate institutional lack thereof; the latter particularly in particular policy fields like the CFSP. What is concluded is that the Parliament hence must not only attempt to expand its institutional legal powers but also strengthening its own legitimacy with its citizenry to address a external relations democratic deficit.

Factors of the Democratic Deficit

Much ink has been spilled on the notion of an EU ‘democratic deficit’. As alluded to by political scientist Svetoslav Malinov, the inordinate amount of academic literature done on the EU’s democratic deficit has become testimony to academia’s disagreement on the topic. Nevertheless, condensed into categories, five primary issues have been raised:

1. 1. Executive federalism: EU power is disproportionally dominated by executive powers;
   2. Parliamentary influence: the Parliament lacks proportionally adequate influence;
   3. European elections: Parliament elections are seldom fought over European issues;
   4. Euro-demos: the EU lacks a public sphere yielding a disconnect with its citizens; and
   5. Legislative bypass: EU policies are often not supported by the majority of citizens as governments use the European level to implement decisions they cannot pursue nationally.

Sub-unified, we can extrapolate two different forms of democratic deficit criticism raised: institutional (represented in numbers 1, 2, and 5) and socio-psychological (numbers 3 and 4). By doing this, we may now methodologically analyse the democratic deficit of the EU’s internal and external frameworks through these lenses.

Internal Governance

1. Institutional Democratic Deficit

Executive federalism, legislative bypass, and parliamentary influence

‘… intergovernmental rule by the European Council’ is what famed social theorist Jürgen Habermas has worried the EU may become, reinterpreting ‘executive federalism’ to mean just that: a situation wherein decisions shift from national parliamentary influence to an EU level less comprehensive in assuring parliamentary oversight and adequate democratic checks-and-balances, paraphrasing German jurist Stefan Oeter. After all, as alluded to by political scientists Simon Hix and Andreas Follesdal, why would a Member State executive waste political capital passing a contentious legislation through their national parliament if they could do so much more easily at an EU-level banding with other Member State executives under the oversight of a far less powerful Parliament?

Yes, the Lisbon Treaty has promoted Parliament to a ‘co-legislator’ and parliamentary committees have become influential in requiring commissioners and civil servants to defend themselves before hearings. However, the Council remains arguably a far more powerful legislative force than any single executive nationally. The idea, moreover, that Parliament stands on equal footing with the Council post-Lisbon is a misapprehension. Under sensitive policy areas, such as competition policy or taxation, the Parliament remains only (non-bindingly) consulted, following Articles 103 and 113 TFEU, respectively. This, joined with a monopoly on legislative initiative by the EU’s other executive branch, the Commission, makes weak relative parliamentary power a legitimate concern. Criticism has also been raised on the disproportion between the Parliament’s high level of democratic legitimacy to its low legal powers.

National judicial authorities have equally raised their concerns, particularly the German Federal Constitutional Court. Accusations of ‘ultra vires acts’ have been explicitly levied against EU executive and judicial institutions who have unilaterally exceeded their legal mandates, including the European Central Bank and the Court of Justice of the European Union (CJEU).

Conversely, criticism against the notion of a ‘democratic deficit’, such as from EU scholars Giandomenico Majone and Andrew Moravcsik, has relied on the fact that the EU is simply incapable of suffering such a deficit largely based on the argument that the EU is an intergovernmental organisation, or because democratic deficit criticism has often judged the EU against ideal parliamentary democracy. However, these counter-criticisms have been raised decades ago, and the EU furthers into a political rather than a purely economic and regulatory community, strengthening EU-level democratic legitimacy cannot no be overlooked — something Majone concedes.

2. Socio-Psychological Democratic Deficit

European elections and the ‘euro-demos’

According to much of concerned academia, the EU’s democratic deficit arises partly from socio-psychological elements. For Hix and Follesdal, evidence of this is the lack of credible contestation for European-level political leadership. That is, European elections are fought not on pan-European issues as much as on national issues, turning the European elections midterm national ones based on publics’ approval of national government performance.

The cause for this is simply the lack of a pan-European public sphere, an apathy for pan-European politics. Indeed, a ‘euro-demos’, as argued by Malinov, simply doesn’t exist, fuelled by various factors including: (1) a complex EU decision-making system; (2) lack of transparency; (3) sense of poor representation through European elections; (4) limited opportunities for citizen participation; and (5) minimal EU-level media coverage. Importantly, these factors are not mutually independent, and each strengthen each other.

Some factors bridge the divide between socio-psychological and institutional factors. While Article 11(4) TEU’s European Citizens’ Initiative was a step in the right direction in fostering a European public sphere through civic engagement, the Initiative falls short in a prime regard: because of its demanding requirements, significant funding is an impractical prerequisite for citizens, generating a situation wherein ‘only special interest groups have been able to successfully complete the initiative process.’ Lack of pan-European parties and no standardisation in the European electoral process are other factors which contribute to both social and institutional democratic deficits.

External Relations

1. Institutional Democratic Deficit

Executive federalism and parliamentary influence

Scholarly criticism regarding an institutional democratic deficit plaguing the EU’s external relations is more consensual. For all the valid criticisms of executive federalism academia has raised against the EU’s internal governance, as EU law scholar Christian Eckes points out, powers shift even more to the executive in external relations, specifically to the Council. Consequently, executive federalism and (lack of) parliamentary influence are among the main criticisms raised — according to Eckes, EU external relations has become the ‘domain of the executive’. With little parliamentary involvement, external decision-making becomes shielded not only from public scrutiny, but equally from public deliberation.

The CJEU has ruled that external relations should reflect the institutional balance of internal governance if Article 13(2) TEU is to be respected. This has largely occurred, and the Parliament has managed to enforce its new post-Lisbon powers (eg., in the EU-US PNR and TFTP agreements and the multilateral ACTA agreement), whether by broadly interpreting its rights, mobilising political positions, refusing consent, or taking judicial action. However, its powers remain limited to what is inscribed in primary law, where, like the internal framework, sensitive policy fields remain largely out of parliamentary influence, such as the Common Foreign and Security Policy (CFSP).

CFSP, judicial oversight, and parliamentary involvement

CFSP is a sui generis competence of the EU and thus radically different in its legislative process. Transcribed in Articles 23 to 46 TEU, not only is the Parliament merely ‘consulted’ on CFSP decisions, the Commission also possesses little influence. Instead, CFSP decisions lie purely with the Council and the High Representative. Not even EU Courts, as per Article 275 TFEU, have jurisdiction to review the substance of CFSP decisions. Though the CJEU has been able to marginally review international agreement substance with CFSP provisions, it has done so arguably through creeping competence of its own Treaty powers, to the disconcert of Member States, as in Case C-455/14.

Furthermore, within the EU legal hierarchy, international agreements lie between secondary and primary law. Therefore, the Council may legally conclude CFSP agreements which violate secondary law, with Parliament having little say.

2. Socio-Psychological Democratic Deficit

The socio-psychological democratic deficit within external relations is fundamentally identical to that of the internal. As aforementioned, socio-psychological factors fomenting the democratic deficit do not as much concern the substantive institutional frameworks as the legitimacy of the EU itself. Lack of a euro-demos, and thus apathy for pan-European politics cultivates citizen-disconnect with the EU itself, not so much with particular institutional laws. If anything, EU external relations law, which decreases parliamentary influence, fuels this apathy as the public perception that European elections matter little is more objectively accurate.

Lastly, as the CJEU has ruled, a core duty of the EU’s parliamentary organ is an extra-institutional one, where Parliament incorporates public deliberation. Yet, this deliberation is highly limited for secrecy or practical reasons in external relations.

Conclusion: Prospects of Parliamentary Legitimacy in External Relations

Academic literature has been more extensive in examining the democratic deficit’s internal scope, rather than its external one. Despite this, if the majoritarian internal argument is to be accepted — that is, the EU does suffer from an internal institutional democratic deficit —, there is no doubt that the external institutional criticisms are equally valid despite the less academic literature on the subject. After all, such criticisms (ie., the lack of legal parliamentary involvement and executive influence within external relations) are the internal criticisms on rage.

Legally, thus, increasing parliamentary involvement, particularly in the CFSP, would do much to address these criticisms. Practically, however, effective foreign policy should also possess an agile element which is best conducted executively. Satisfying both necessities may be done best by expanding the Commission’s initiative seen in the 2010 Parliament-Commission Framework Agreement. The Framework goes beyond treaty obligations in assuring parliamentary involvement in agreement negotiations conducted by the Commission, even when under time pressures. An equivalent framework with the High Representative or Council for CFSP decisions is arguably a good first step in addressing primary criticisms of parliamentary influence.

Socio-psychologically, the Parliament faces complex obstacles as it must increase the legitimacy of its own institution to address citizenry disconnect and lack of a euro-demos. Reforming the 1976 European Electoral Act to implement universal suffrage and institutionalising the Spitzenkandidat is essential — an initiative already being explored. Passed, the reform would indirectly incite debate on pan-European issues, strengthening a euro-demos. If joined with the abovementioned institutional reforms, such democratisation of EU external relations would also address executive federalism as relative power of the Parliament would be strengthened.

That said, the EU’s institutional democratic deficit is not intrinsic. Indeed, political will is the main obstacle the Parliament faces in reforming EU institutional law as Member States stand wary of receding too much sovereignty to supranational institutions. It will be this factor that must be bypassed to address the root of both the external and internal democratic deficit.