Last but certainly not least, consider the European Parliament. There is a growing and important literature about the role of the European Parliament, and the difficulty that the directly elected Parliament presents for an intergovernmental vision of the Union. To be sure, the member states originally created an early version of the present institution. But the increase in the European Parliament’s democratic credentials through direct election as well as the steady increase in the Parliament’s powers as a co-legislator at the European level represents a serious challenge to the view that member state governments remain in charge of the European policymaking enterprise. As we have already seen, the self-understanding of other actors, such as the European Court of Justice in its decision on the Parliament’s standing to sue, or of European Convention members in their drive for simplification, contributed to the Parliament’s increase in powers. It should come as no surprise, then, that the Parliament’s own actions are similarly driven by a democratic recalibration of the European enterprise, with lasting structural implications for the Union as a whole.
First, the European Parliament may have increased its influence by interpreting the rules regarding its own position and power against the interests of the member state governments.60 For example, in Simon Hix’s account, following the Treaty of Maastricht, the European Parliament interpreted ambiguities in the rules for the new co-decision procedure in its own favor. It prevailed in its interpretation over the member states, largely because the Parliament valued the long term institutional gain of its favored interpretation over any potential short term policy loss of whatever particular measure was at issue. Once its preferred interpretation became standard practice, the Parliament could successfully lock in this view at the next intergovernmental conference. This version of events supports the institutionalist approaches that consider supranational actors as acting purely in their institutional self-interest and thereby deepening their autonomy from the member states. Thus, this account further challenges the intergovernmental vision of the Union.
Even more intriguing, however, is a second idea, namely that the self conception of parliamentarians doing their daily business of arguing and bargaining on policies has also contributed to the erosion of the intergovernmental aspects of the Union. Put another way, an important source of the European Parliament’s challenge to the intergovernmental conception of the Union derives from how parliamentarians in their daily actions conceive of the Union. When examining the votes of European Parliament members and parliamentary groupings, for example, we find suggestions that European party cohesion is growing.61 Parliamentarians are increasingly voting with their parliamentary groupings, which are spread out on a familiar left-right dimension of politics, as opposed to along national cleavages. This, in turn, indicates that European parliamentarians are understanding themselves as conducting politics much like any domestic parliamentarian would.62 Thus, here, too, we witness a democratic turn away from the member states (and their governments and parliaments) as the exclusive determinants of popular will, and toward a more immediate connection between the European Parliament and the citizen and her communities of interest.
Finally, the Parliament’s proposals for structural reform more generally reflect this democratic turn, often placing this institution in the vanguard of the democratization of the Union. For example, the Parliament had long urged the other European institutions to adopt comprehensive principles of transparency to grant individuals access to European documents.63 Although it took several years before others were convinced, such principles were eventually adopted by all.64 Similarly, the Parliament had argued before the Court in favor of the Community’s power to accede to the European Convention of Human Rights.65 The Court rejected this contention in a decision in which judicial self-interest regrettably outbid democratic principle. But here, too, the Parliament’s suggestion was finally taken up and has now found its way into the proposed constitutional treaty.66 Finally, the Parliament had long ago urged the adoption of a constitutional document as the foundation of the Union.67 Here, too, in many respects, the Parliament was prescient.
In summary, European integration, like all projects of collective self-governance, depends on the self-understanding of its participants, which, in turn, is reflected in the actions they take. One cannot isolate one institutional structure within this system, as Liberal Intergovernmentalism seeks to do, and suggest that state governments control the workings of the enterprise as a whole. Instead, myriad actors, at the supranational, national, and infranational levels exercise discretion in great moments as well as everyday administration and participation in the European project. In doing so, they bring their understanding of the project, and of their own personal and professional roles within that project, to bear. Accordingly, the extent to which today’s European Union is democratic is as much a product of the ethical commitment to democracy of its individual actors as it is a product of the institutional arrangement laid down by the agreements among the governments of the member states.
II. Accountability and Legitimacy in the European Union II. Accountability and Democratic Legitimacy in the European UnionII. Accountability and Democratic Legitimacy in the European UnionII. Accountability and Democratic Legitimacy in the European Union When judging the democratic legitimacy of the European Union, Andrew Moravcsic properly reminds us not to apply utopian standards to the workings of the Union. We should judge democracy in the Union by comparison to the actual practice of democracy in the Member States, not by what we might expect in theory from an ideal system. When measured by realistic standards, Moravscik concludes, the Union does quite well. Summarizing his argument in a recent article, he writes: “failure to view democracy realistically, as well as the failure to take into account the empirical idiosyncracies of the European case -- notably its limited mandate and the continuing role of national governments -- has given critics the impression that the EU is undemocratic. In fact, it is merely specializing in those aspects of modern democratic governance that typically involve less direct political participation.”68
The admonition for realistic comparisons between Union democracy and member state democracy as actually practiced is warranted, but the sanguine conclusion about the state of European democracy is not. To be sure, the Union is not an out-of-control superstate, as some have charged.69 But democracy in the Union at times falls short of the mark, even when applying realistic standards of member state alternatives. Moravcsik overlooks this because of two central assumptions of his thesis. The first is the assumption that Europe’s “limited mandate” means that the Union engages only in matters that, domestically, are generally delegated to expert agencies with little democratic participation anyway. The second is the assumption that the “continuing role of national governments” in the political process of the Union makes up for any perceived lack of democratic accountability elsewhere in the Union. Each of these assumptions, however, is questionable.
A. The Nature of Union Policies A. A. A. Moravcsik presents the European Union as a highly limited project, at the core of which are still areas like “trade and services, the movement of factors of production, the production of and trade in agricultural commodities, exchange rates and monetary policy, foreign aid and trade-related environmental, consumer and competition policy.”70 He contrasts these areas with those that are left out of the Union’s purview: “taxation and the setting of fiscal priorities, social welfare provision, defense and police powers, education policy, cultural policy, non-economic civil litigation, direct cultural promotion and regulation, the funding of civilian infrastructure, and most other regulatory policies unrelated to cross-border economic activity.”71 This second list should come as no surprise, we are told, because the EU lacks the power to tax beyond the equivalent of 2-3% of member state government spending.72 In Moravscik’s view, this renders the EU merely what Giandomenico Majone has termed a “regulatory polity.”73
It is not quite clear what we are to take from this description of what the Union is and is not. To be sure, the conception of the EU as a regulatory state captures an important insight about some of the key limitations of the Union. It tells us, for example, that the European Union is not like the United States, in which each level of government possesses the full complement of powers to tax, legislate, adjudicate, and execute.74 This suggests a limitation, for example, on the growth of the corps of European officials and bureaucrats and their limited ability to coerce member states into compliance. And this, in turn, should indeed calm certain fears about an unruly superstate that will practically engage in a hostile forced takeover of the member states.
But the claim that the Union’s democratic process can be thin because the policies of the Union merely regulate (or deregulate) cross border economic activity and thus do not regulate, or spend money on, welfare, culture, and security, is dubious. Like social welfare policy, many European Union policies directly or indirectly effect a significant redistribution of wealth. Union policies have significant effects on cultural issues, such as education and social integration. And Union policies have significant effects on security issues. These are not the kinds of policies that are relegated domestically to independent expert agencies.
1. 1. 1. 1. 1. Redistributive Policies. -- Take redistribution first. Certain core Union budget items, such as payments made as part of the Common Agricultural Policy, the Structural Funds, and the Cohesion Funds are, of course, quintessentially redistributive. Although annual expenditures under these headings (€47 billion, €35 billion, €6 billion, respectively)75 are relatively low as a percentage of the Union’s overall GDP (nearly €7 trillion),76 these programs nonetheless effect a significant transfer of wealth to the recipients of Community largesse. In the case of Greece, for example, the annual net budgetary receipts from the Union have amounted to more than 10% of the total annual expenditures of the national government.77 Similarly, the net annual budgetary transfers to Ireland have amounted to 5.5% of Ireland’s GDP.78 In terms of cash per person, the overall funding is not entirely trivial either. In 2003, for example, each Irish national received a total €391.70 from the Union, whereas each Dutch, Luxembourg and German national was asked to pay €120, €125 and €92.7 respectively into the EU’s budget.79 And all this while Germany’s standardized unemployment rate was the highest of the major European economies (over 9% in 2003) ,80 and its regional unemployment rate peaked at over 19% (in the late 1990s).81 Indeed, since Ireland joined the Union, its total receipts have amounted to about what Ireland’s total national debt was at the time of its accession.82
But even if we agree with the claim that the actual budgetary transfers are relatively low when compared to national social welfare programs, looking exclusively to the budget significantly understates the amount of redistribution conducted in the Union. If we include intra-state redistribution (which demands democratic legitimation no less than inter-state redistribution), the off-budget redistribution of wealth conducted at the European level is indeed worthy of democratic attention. In the case of the CAP, for example, actual transfers from consumers and taxpayers to farmers are twice the budget figures, amounting to well over €100 billion per year.83
Indeed, simply considering the compliance costs of a handful of European regulatory policies over the years, gives some indication of the magnitude of off-budget redistribution effected by Community policies. Whenever the benefits of regulatory programs do not to fall on those charged with carrying out or complying with the relevant regulations, compliance costs may provide a rough first estimate of the magnitude of wealth transferred through regulation. This, too, tends to be an underestimate, however, since the distribution of any efficiency gains from regulation contains another implicit distributive decision of regulation. Moreover, even when taxpayers (or consumers) fund the implementation of regulatory programs that ostensibly benefit all, regulation effects a transfer of power from those who would rather forego the benefit than pay for the costs of implementation to those who willingly incur the regulatory expense in exchange for the promised result.
Take, for example, the impact of European regulation of the workplace. When the European Court of Justice decided the Defrenne case in 1976, the British Government submitted estimates that a requirement of equal pay for men and women would amount to an increase of 3.5% of the national wages and salaries bill.84 Ireland estimated that the immediate implementation of the equal pay principle in the manufacturing sector would cost even more -- around 5% of wages and salaries.85 More recently, the British Chamber of Commerce found that from 1999-2003, the Working Time Directive has cost UK businesses over £11 billion, representing the largest single regulatory cost to business.86 The UK government further estimated that the European temporary agency workers directive would add £500 million a year in costs to UK businesses.87 The government also projected that the work councils directive would add £14.5 million annually and a one time startup cost of £8.4 million.88 A government impact assessment determined that the directive prohibiting discrimination on the basis of race would be generally cheap to implement, but could cost British fleets over £40 million per year, due to the current lenient regulation of their foreign recruitment practices.89 And the German government recently estimated that application of the working time directive to doctors’ on-call time, as demanded by a recent ECJ decision, could increase health care costs in that country alone by up to €1.75 billion a year.90
A sampling of environmental regulations suggests that here, too, European regulation effects a significant redistribution of wealth. The British government, for example, estimated that implementation of the Chemical Agents Directive would cost the country between £175 and £420 million over ten years.91 The UK estimated total compliance costs under the Petrol Directive to be £117 million annually.92 A World Bank study found that Poland would have to spend between $30-60 billion in onetime capital investment and between $2-6 billion in annual operating and maintenance costs to implement the core environmental acquis.93 And the French ministry of Economics and Finance estimated in 1997 that in France, the implementation of European regulations of urban residential waste water would cost over €13 billion and that proposed European regulation of drinking water would cost between €3 - 20 billion (depending on which of the proposed directives would be adopted).94
There should be nothing shocking in these numbers. These figures do not suggest an out-of-control superstate. Nor do they suggest an unjustified level of European regulation generally. But they do provide a rough sense of the magnitude of the redistributive enterprise conducted at the European level. However unreliable implementation cost estimates may be, they give some indication of how various political actors assess the magnitude of positive integration at the European level (i.e. policies other than the simple elimination of barriers to trans-border trade). As the numbers indicate, secondary measures directing positive integration are routinely of a magnitude that would seem to call for a rich democratic process of legitimation. And although a member state’s domestic politicians will indeed debate these regulations in the course of implementation, domestic legislation at that point is no longer a simple question of substantive policy, but a matter of legally required compliance with Union mandates.
2. Security Policies2. Security Policies2. Security Policies2. Security Policies2. Security Policies. -- Security issues are similarly part of the European regulatory agenda, especially in recent times.95 For example, a recent Council directive adopted over the protest of the European Parliament requires carriers to collect airline passenger data and transmit such data to public authorities.96 A framework decision of the Council sets out a European wide definition of terrorist offenses, which member states are charged with implementing.97 Another framework decision instructs member states to criminalize, in the private sector, giving or receiving an undue advantage in exchange for action or inaction that would constitute a breach of the recipient’s legal or professional duties.98 Another framework decision, which has gotten considerable press, provides for turning over an individual to another member state without a case specific evaluation of the evidence or potential jail sentence and, in a range of specified cases, regardless of whether the alleged offense is criminal in the host state.99 Finally, a series of European policies coordinated by the Council and the Commission set up pan-European teams of prosecutors from various member states, a European prosecutorial hub in the form of Eurojust, and access to databases that were initially designed for other purposes.100
This vast Europeanisation of security policies is no less demanding of democratic legitimation than are domestic policies that similarly balance the community’s safety concerns against individual interests in privacy and autonomy.101 While not raising budgetary concerns comparable to traditional national defense initiatives, these initiatives affect citizens’ lives broadly. Again, the point here is not to suggest that these programs are substantively unjustified. Nor are they adduced as evidence of central government tyranny. Nonetheless, the democratic legitimation of these policies at times seems less than satisfactory. For example, an independent group of experts consulted by the Commission specifically warned against the “inadequate democratic . . . controls” at the European level, especially under the titles dealing with the Common Foreign and Security Policy and Police and Judicial Cooperation in Criminal Matters.102 As this group and others have further noted, the particular mode of adopting many of these measures at the European level eluded meaningful parliamentary control both at the Community and national levels.103
3. Social and Cultural Policies3. Social and Cultural Policies3. Social and Cultural Policies3. Social and Cultural Policies3. Social and Cultural Policies. -- Social and cultural issues are similarly not exempt from European policy control. For example, from the earliest days of the Community, gender equality has formed one of the core social components of European policy. Both Article 119 (now 141 EC) of the EC Treaty (as interpreted by the Court) and subsequent directives104 pushed not only member states, but also individual employers, to afford men and women the same opportunities at the same level of compensation. To be sure, this initiative was initially born largely out of France’s desire to retain a level economic playing field, since French employers were under domestic equal treatment obligations that exceeded those in other member states.105 The principle thus did not reflect a European wide commitment to social progress, but was part and parcel of the core project of economic integration. But this merely underscores the point that the European embrace of gender equality went well beyond the prevailing social and cultural attitudes about equality.106 Accordingly, instead of reflecting the prevailing social mores, European gender policy was part of the process that transformed them. Much the same goes for the more specific directives regarding parental leave107 and pregnancy.108
With the introduction of Article 13 EC through the Treaty of Amsterdam, the Community’s impact on issues of social equality has only broadened.109 The Community has issued or plans to issue directives prohibiting discrimination in employment on the grounds of race, religion, disability, sexual orientation, and age. In many member states, these directives will break new ground. In the United Kingdom, for example, implementation of the prohibition on discrimination against employees on the basis of sexual orientation will be the first such legal prohibition.110 Apart from protecting up to 2 million employees in the U.K., it is unimaginable that the implementation of this provision including the specifically planned public awareness campaign will not play a part in the development of social and cultural norms on this matter in the United Kingdom. Similarly, implementing the directive against discrimination on the basis of religion will be the first such general prohibition in the UK, although this directive may indeed be more in line with mainstream commitments to religious equality.111 The race directive, which included prohibitions against both intentional discrimination and policies with a disparate impact on minorities that are not objectively justified, covers not only employment, but also the provision of goods and services, vocational training, social protection, education, and housing.112 This sweeping directive, too, is likely to play a significant role in shaping social norms. The same can probably be said for the disability, age, religion, and sexual orientation directive.113 These are not the kinds of policies that domestically tend to be left to expert bodies operating outside the mainstream of democratic arguing and bargaining.
B. B. B. B. B. Democracy, Domestic Agencies, and the Promise and Perils of European Public Policy Whether or not we view the Union as the predictable product of member state government design, the Europeanisation of public policy has significant effects on the conduct of political decision making. Only a thin vision of democracy could rest the legitimacy of such a shift in authority on the “continued involvement of the member states” at the supranational level of governance. This view would equate European legitimacy with formal accountability of the Union to the citizens through the executive branches of the Member States. In essence, this view suggests that as long as a formal thread of accountability can be traced from any given Union policy through the member state governments and back to the member state citizen as voter, democracy will be safe.
It is a mistake, however, to think that our concerns about democracy can be captured neatly by one set of institutions that represent the body politic. Instead, democracy demands multiple actors, formally institutionalized as well as informally constituted, with partly overlapping, partly conflicting, and partly autonomous jurisdictions. An individual must have access on the basis of reasonable equality to multiple forums of arguing and bargaining in which to pursue various aspects of her personality and a host of interests. These different forums, in turn, will generate conflict among one another to consider and reconsider the political equilibria reached within each. In this way, multiple conflicting claims of authority generate the “political disequilibria” that we value in a healthy and vibrant democracy.114