The Jean Monnet Program



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And indeed, in the member states, the kinds of policies that the European Union is routinely engaged in are not relegated to expert bodies operating wholly outside the mainstream processes of democratic arguing and bargaining. Even in instances in which expert bodies do participate decisively in the lawmaking enterprise, there are multiple avenues for formal and informal democratic participation and control. Thus, agency action at the member state level is not legitimate simply by virtue of a domestic thread of accountability via the executive branch to the citizen. Instead, the legitimacy of member state agencies depends in important part on the various processes (both formal and informal) that help steer an agency’s policy output toward the democratic mainstream.

The Europeanization of policymaking therefore carries a real risk of undermining democracy. Moving policies to the European level of governance extracts them from the broader domestic context of formal and informal arguing and bargaining. Any resulting absence (or dilution) of formal and informal mechanisms of democratic participation and control at the European level cannot be cured by the accountability of the member states’ executive branches. Member state government participation in the European lawmaking process through the Council cannot make up for such a loss of democratic legitimacy elsewhere.

By the same token, however, the Europeanization of public policy has the potential to enhance democracy. For example, the Union might add a new dimension of democratic engagement to policy processes that have otherwise been monopolized by a constellation of formal and informal interests in a non-transparent domestic equilibrium of power. Put another way, in these cases European policymaking can usefully break up domestic inertia and capture without harming any broad based domestic democratic consensus. But any such judgment that the Union enhances, rather than detracts, from democratic engagement must be based on a specific evaluation of the relative processes for democratic engagement (both formal and informal), not on a wholesale conclusion about the legitimation of Union policies based on member state government control or on a general evaluation of the usual practice of domestic expert agencies.

A brief glance at domestic procedures bears out this dynamic. Germany’s constitutional tradition, for example, does not envision the delegation of significant rulemaking authority to independent agencies. With few notable exceptions,115 delegations of rulemaking power are to government ministers, departments, or supervisory agencies subject to ministerial direction and control. Even with regard to executive rulemaking, the Bundestag and Bundesrat frequently reserve the right to approve or disapprove regulations before they become effective. Such parliamentary “vetoes” are constitutional in Germany, even when exercised only by one house.116 As Susan Rose-Ackerman’s review of environmental regulation in Germany points out, reserving a veto for the Bundestag is not a rare occurrence.

Moreover, in cases in which executive regulations create administrative burdens for the Länder, the Grundgesetz specifically envisions that administrative rules not go into effect without Bundesrat approval.117 Such Bundesrat approval can be “of substantial political and policy importance,” especially in times when the federal government (which represents the majority in the Bundestag) faces a Bundesrat representing Länder governments dominated by the opposite party.118 Given the vertical division of labor in Germany’s federal system (whereby federal legislation is largely carried out by the Länder) this rule leads to substantial Bundesrat involvement in federal administrative regulations across numerous areas of substantive policy making. As one study found, from 1949 through 1994, around 40% of executive regulations were dependent on such Bundesrat consent.119 As this commentator further notes, in reviewing proposed regulations, the Bundesrat will often neither approve nor disapprove the measure. Instead, the Bundesrat will frequently provide its consent on the condition that the executive branch amend the proposed regulation along certain lines.120

A host of informal bonds of personnel and politics further tie the work of domestic agencies to the prevailing policy decisions that emerge from the more directly democratic processes within the domestic political system. One of Germany’s oldest and strongest agencies, the Federal Supervisory Authority for Insurance, for example, worked largely in accordance with the fundamental policy framework set forth by the government and parliament. As one commentator notes, from its inception over a century ago, the physical location, staffing, and organizational control of that agency by the relevant government ministry “ensured that government policy would be closely pursued.”121 When, in a later incarnation, the agency challenged the prevailing government policy regarding competition in the insurance markets, the agency won, but only after a battle in the Bundestag in which industry pressure groups strongly defended the agency’s actions.122 Furthermore, today, many significant decisions of the agency are taken by, or informed by consultation with, a separate body that includes representatives “drawn from insurers, ‘competent’ policy-holders from all sectors of industry and commerce, the professions, civil servants and members of companies and professional actuaries.”123

Tying agencies into domestic political culture and policies that emerge from the ordinary democratic politics of the nation is not unique to Germany. French administrative agencies, for example, are similarly not “independent” of mainstream politics. Through appointment of personnel, control of agency powers, and the allocation of resources, the executive will retain a significant margin of influence over agency action.124 Important decisions have at times been reserved to the relevant ministry itself, as in the case of the French competition authority. And while the French Parliament may not be able to control individual agency decisions, it has stepped in, abolished, and recreated so-called “independent” agencies whose decisions did not comport with the prevailing consensus reached in presidential and parliamentary elections.125

Accordingly, raising policies to the European level can undermine democracy by sacrificing the grounding of policies in formal and informal domestic democratic procedures, or it can promote democracy precisely by breaking up established domestic networks of powerful interests. In the case of Germany’s regulation of insurance, for example, the entry of the European Union has upset the balance of interests that had been preserved by mainstream democratic politics in the Bundestag. By liberalizing the insurance market, the European Union has introduced an element of competition that runs counter to the long established national network of industry interests and domestic macro-economic policy. In this sense, the European Union has indeed intruded into what was previously the result of democratic arguing and bargaining at the national level. And yet, the manner in which this old network of interests is beginning to dissolve has introduced a long ignored domestic party -- the mass consumer. By liberating the voice of the consumer, the process of Europeanization can in this instance be viewed as enhancing, not limiting, democratic legitimacy.126

Several scholars have put forth powerful theoretical arguments for how the European Union promises to counteract shortcomings of domestic democracy along these lines. Neil Komesar, for example, has described how consumer interests may be under-represented in domestic politics.127 In a similar vein, Miguel Maduro has argued that European integration demands the consideration of a host of interests that are routinely affected by domestic policy decisions but otherwise ignored by the domestic political processes.128 In this way, supranational governance promises to enhance the democratic legitimacy of policymaking in Europe.

These latter arguments supporting the democratic legitimacy of Union action, however, do not simply rely on the generic state of delegation at the member state level, the allegedly minimal nature of Union policies, or the involvement of member state governments at the European level of governance. Instead, they depend on a careful assessment of the effects of particular Union policies, the processes of democratic lawmaking at the European level, the substantive values furthered by European integration, and the emergence of European wide policy networks and arenas of public engagement. Only when this constellation of governance factors is properly aligned does the Union contribute to the democratic legitimacy of the public policies that govern Europeans.



III. Why We Should Care About How We Describe The UnionII. The Normative Dimension, or Some Examples of Why We Should Care About How We Describe The UnionII. The Normative Dimension, or Some Examples of Why We Should Care About How We Describe The UnionII. The Normative Dimension, or Some Examples of Why We Should Care About How We Describe The Union
The difficulty with an intergovernmental vision of the Union goes well beyond descriptive accuracy. It has important normative consequences. As is so often the case, fact and value cannot be neatly separated from one another. Understanding the Union as no more than the product of an intergovernmental bargain materially affects how citizens, politicians, bureaucrats, and judges go about interpreting the Treaty. Moreover, an intergovernmental approach to understanding European integration affects how satisfied we find ourselves with the institutional status quo, or how we go about evaluating various suggestions for institutional reform.

With regard to interpretation, the intergovernmental account of the Union carries with it the normative implication that the basic move of “constitutionalizing” the treaties must be wrong. Taking the individual as the fulcrum of normative concern in the way the Court has done cannot be squared with a purely intergovernmental view of what the Union is. Ironically, a contrast with the United States may be illuminating in this regard.

When the European Court of Justice set out to interpret the newly minted citizenship provisions, it might have done what the U.S. Supreme Court did a century earlier in the analogous situation.129 It could have taken an intergovernmental bargaining approach to the new provisions, and held that the new definition and protection of citizenship added no new rights at all. It could have held, as the U.S. Supreme Court did with regard to the 14th Amendment in 1873, that the provisions protecting the rights of citizens merely consolidated and underscored rights that had existed all along. And it could have argued, as the U.S. Supreme Court did in that case, that it was hard to imagine that the constituent governments would have agreed upon any momentous change without express clarification in the text.

In the case of the ECJ, an intergovernmental vision of what the Union is would have counseled the Court to follow that path as well. Such a narrow view of the citizenship clauses could have drawn support from the text. And it could have drawn on an understanding of the history of the provisions as the product of an intergovernmental effort at managing public relations vis-à-vis an increasingly disaffected public. Indeed, the British, French, and German governments had argued that the ECJ do just that.130

The ECJ, however, rejected this intergovernmental vision of treaty, as it had done so often before. Instead, the ECJ approached the Treaty as a principled instrument intended to further democratic equality among citizens, not the long term policy preferences of constituent state governments. The Court held that by introducing the concept of citizenship, new principles of equality must now govern the treatment of every individual who can claim this privileged status.131 In short, they chose one interpretive stance over another, rejecting the intergovernmental understanding of the Union based on the equality of member state governments in favor of a constitutional vision based on the equality of European citizens.

Similarly, with regard to how we evaluate the status quo or compare different proposals for institutional reform, it is normatively significant whether we understand European integration as the product of intergovernmental bargaining or whether we understand the Union as something more. Much has been written, for example, about the continued democratic shortcomings of the comitology process.132 Many have called for the adoption of a European “Administrative Procedure Act,” by which is meant some version of U.S. style notice and comment rulemaking.133 Put briefly, these are all efforts to broaden democratic participation in European administrative rulemaking.

If the Union is properly understood as an intergovernmental bargain among member state governments, however, then arguments for broader based participation at the European Union level should have no prima facie democratic appeal. Similarly, on this view, calls for greater involvement of the Parliament should also not have no normative urgency. Nor should the idea of allowing member state parliaments to raise an objection to a proposed Commission policy, at least not unless the member state parliaments are thereby given a veto over the proposal. To be sure, any of these reforms might increase the quality of policymaking. But as far as democratic legitimacy is concerned, a purely intergovernmental account of the Union would let us rest content as long as the Council and member state executive bureaucrats retain formal control over the decision making process.

As we have already seen, all this ultimately comes down to our vision of democracy. Liberal Intergovern­mentalism and the claim that the legitimacy of the Union can (in light of the Union’s allegedly limited mandate) rest on the “continued involvement of the member states” seems to be based on an understanding of democratic legitimacy as formal accountability. On this view, democracy is safe 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. If, by contrast, we understand democracy as the existence of multiple overlapping spheres of decision making in which citizens can argue and bargain with one another under reasonable conditions of equality,134 then we would be inclined to assess democracy in the Union and proposals for reform quite differently.

On the view offered in this essay, the Union does not lose legitimacy whenever it becomes unmoored from member state government preferences. Nor does this view celebrate the democratic legitimacy of a Union that perfectly reflects member state government preferences. Instead, the question becomes whether Union decision making is subject to sufficient political disequilibria among a diversity of forums of democratic decision making commensurate with the Union’s deep impact on citizens’ lives.135 To be sure, this depends on the continued involvement of member state governments in the European policy making process. But it also depends on the emergence of multiple, overlapping trans-national as well as national communities of interest and their representation in the decision making processes of the Union. Accordingly, this view celebrates, for example, the addition of the new Subsidiarity Protocol,136 even though that protocol does not alter the authority (or the electoral connection) of the Commission as the final locus of decision. The protocol adds an important dimension of depth to democratic decision making by creating the opportunity for democratic conflict. This conflict, in turn, heightens the transparency and the considered nature of both deliberation and bargaining at the European level. In this way, the protocol enhances European democracy even without ever changing the final allocation of decision making power.
ConclusionConclusionConclusionConclusion
Andrew Moravcsik has long argued that the European Union is best explained as a rational bargain among the governments of the member states. Already in his powerful book, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, he maintained that since their first meeting in the ancient town of Messina, member state governments have been charting the course of European integration based on political preferences and relative bargaining power.137 Professor Moravcsik has added to this a second argument, insisting that there is no democratic deficit in the European Union, at least not if we compare politics in the EU with the actual functioning of democracy within the member states’ domestic systems of politics.138

The marriage of these two arguments presents an especially bold claim. It posits that existing governments, bargaining effectively with one another based solely on rational political self-interest, have created a system that also happens to be in accord with democratic norms. To be sure, governments bargaining effectively may reach an efficient result. Indeed, we would expect no less from successful governments. But why would we suppose that this result should also conform to democratic norms? After all, self-interested rational actors are expected to exploit their respective bargaining advantages, including fortuitously inherited ones, whether morally justified or not. And self-interested rational actors bargaining effectively ought not to budge unless they have something to gain. Add to this that Member state governments are inherently unequal in their bargaining strength, given their differences in economic, social, cultural, and military power and influence in Europe and we have an apparent paradox. Why would unequally situated governments, each in pursuit of its own self-interest, bargain rationally with one another and yet arrive at a system that is normatively justified from the perspective of democracy?

As this essay has argued, neither element of this apparent paradox holds up under close scrutiny. Presenting European governance solely as the product of national preference aggregation and as reaching only into narrow technical matters that, domestically, would be relegated to marginal democratic processes fails the mark. Instead, the story goes something more like this:

Nearly fifty years ago, the foreign ministers of Germany, Belgium, France, Italy, Luxembourg, and the Netherlands returned from a fateful meeting in the ancient town of Messina committed to a new Europe. This new project of governance has since grown to embrace matters that lie at the very center of domestic politics. From its inception, the project has depended on accommodating the concrete national political interests of the Member States. But it has equally depended on the energy, commitment, and increasingly democratic vision of the individuals who have come together as partners in that common enterprise.

This is a story about freedom in three ways. First, the freedom of choice of member state governments to create, and remain a part of, this historic partnership. Second, the freedom of individual actors in carrying out their otherwise assigned functions in the European enterprise. And third, the promise of freedom by lifting the individual out of the exclusive confines of member state political processes. The latter is not a radical freedom intended to dissolve the member states by creating a singular demos or aimed at establishing a federal system á l’americaine.139 Instead, it is an idea of freedom based on the dispersion of power away from a monopoly of decision making previously held by the member states.

The idea that the dispersion of power and the preservation of democratic conflict among equal partners enhances, rather than undermines, self-determination is an old one. Indeed, when the Bible speaks of God creating Eve as a companion for Adam, it says that she was brought forth “as a help against him.”140 Thus, even though she was cut from Adam’s side, Eve was not subject to his command. Instead, she became a partner in what was now a joint quest for knowledge and self determination. Perhaps we may understand the bride of Messina as serving the member state governments in a similar way.




* Professor of Law, University of Michigan. (Contact: dhalber@umich.edu.) I would like to thank Damian Chalmers, Don Herzog, Robert Howse, Miguel Maduro, Bill Miller, Kalypso Nicolaidis, and Eric Stein for many helpful discussions and for their comments on an earlier draft. I would also like to thank the participants in the N.Y.U.-Princeton conference for their comments on the presentation of this piece.

1 For a helpful overview of different approaches to European integration, see Paul Craig, The Nature of the Community: Integration, Democracy, and Legitimacy, in The Evolution of EU Law (Paul Craig and Gráinne de Búrca, eds., 1999).

2 Friedrich Schiller, The Bride of Messina, introductory essay entitled “Über den Gebrauch des Chors in der Tragödie,” 4 Gesammelte Werke 311, 313 (Carl Noch, ed., 1959).

3 Friedrich Schiller, Über Anmut und Würde, reprinted in, 8 Gesammelte Werke at 240.

4 See Andrew Moravcsik, The Choice for Europe: Social Purpose & State Power From Messina to Maastricht (1998). See also, Andrew Moravcsik, Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach, 31 J.C.M.S. 473 (1993). For helpful reviews of Moravcsik’s theory, see, e.g., Frank Schimmelfennig, Liberal Intergovernmentalism, in European Integration Theory 75 (Antje Wiener and Thomas Diez, eds., 2004); Helen Wallace, James A. Caporaso, Fritz W. Scharpf, and Andrew Moravcsik, Review Section Symposium: The Choice For Europe: Social Purpose and State power from Messina Maastricht, 6 J. Eur. Pub. Pol’y 164 (1999).

5 See, e.g., Andrew Moravcsik, Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 39 Government and Opposition 336 (2004) [hereinafter “Democratic Deficit”]; Andrew Moravcsik, In Defense of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union, 40 J.C.M.S. 603 (2002) [hereinafter “Reassessing Legitimacy”].

6 Moravcsik labels his theory “liberal intergovernmentalism,” since it is an account of intergovernmental bargaining based on national aggregation of preferences through domestic pluralist politics. See Moravcsik, Preference and Power, supra note 4.

7

8 C-26/62, N.V. Algemene Transport en Expedite Onderneming Van Gend en Loos v. Nederlandse administratie der belastingen, [1963] E.C.R. 1.

9 C-6/64, Costa v. ENEL, [1964] E.C.R. 585; C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] E.C.R. 629.

10 C-43/75, Defrenne v. Societe Anonyme Belge de Navigation Aerienne (Sabena), [1976] E.C.R. 455.

11 See, e.g., C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Social D’Ottignes-Louvain-la-Neuve (CPAS), [2001] E.C.R. I-6193; C-85/96, Martinez Sala v. Freistaat Bayern, [1998] E.C.R. I-2691.

12 See generally, Miguel Pioares Maduro, We, the Court (1998).

13 Friedrich Schiller, Über Anmut und Würde, reprinted in 8 Gesammelte Werke 240 (Curt Noch, ed., 1959).


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