Opinion The Future of European Democracy

Card-carrying Europeans reacted in dismay to a recent far-reaching ruling on the EU's Lisbon Treaty by Germany's Constitutional Court. But the judges have in fact done Europeans a huge service by tackling the issue of how democracy can work in the era of supranational institutions.

Do the people want to be deceived? Niccolò Machiavelli -- who was, it's safe to say, something of a cynic when it came to state power -- once wrote that anyone who wishes to reform a government "must, if his measures are to be well received and carried out with general approval, preserve at least the semblance of existing methods, so as not to appear to the people to have made any change in the old order of things, although, in truth, the new ordinances differ altogether from those which they replace."

The European Parliament in Strasbourg: How can democracy function in the era of supranational institutions?

The European Parliament in Strasbourg: How can democracy function in the era of supranational institutions?

The Florentine diplomat's wisdom was valid in the Renaissance, when the world was being fundamentally restructured, and it also applies to the restructuring of the international order in the 21st century. As stated in the European Union's Lisbon Treaty: "The functioning of the Union shall be founded on representative democracy." Is this a promise? Or have they been reading Machiavelli again? Are they really telling us the truth about what they have planned for democracy?

Germany's Federal Constitutional Court proclaimed the truth on June 30. It ruled that the EU of the Lisbon Treaty does not satisfy the minimum requirements for a democracy of the type described in the German constitution, and the European Parliament is effectively little more than an expensive, Machiavellian glass façade. And without proper supervision by the national parliaments, the politicians in Brussels are not legitimized by the people, it ruled.

Admittedly the court did rule that the Lisbon Treaty is basically compatible with German law and therefore can eventually be ratified. But before it can be, further legislation must be introduced in Germany that would strengthen the national parliament's involvement in any major decision-making in Brussels.

So is EU democracy nothing but a shiny bauble? Criticism of the German court's ruling has grown with each day that passes since the decision was handed down. Prominent European intellectuals have vocally expressed their outrage at the court's reservations about further steps toward European integration. Former German Foreign Minister Joschka Fischer described the ruling as "outrageous" in an opinion piece for the respected German weekly Die Zeit. "The decision comes at a time at which our European neighbors and the Americans are increasingly gaining the impression that Germany is more and more turning away from Europe and is mainly interested in its own affairs," he wrote. "The Constitutional Court's decision strengthens this impression."

But this outrage conceals the fact that the ruling of the Karlsruhe-based Constitutional Court also represents the most important contribution yet to the future of democracy in the post-democratic era. The Karlsruhe judges are treating the European project the way it has long been seen by political scientists, as well as international law and globalization experts around the world, namely as the world's most exciting attempt to solve supranational problems with the help of supranational politics -- and to do so in a democratic fashion.

Can Western Democracy Work for Supranational Politics?

But how democratic can supranational politics really be? The judges' first important contribution is that they are taking the problem seriously. The hackneyed words of Europe's proponents are a mere smokescreen. A parliament like the European one is no democratic representation of sovereign populations if the vote of a citizen of Malta counts 12 times as much as that of a French citizen. A parliament like the one in Strasbourg and Brussels cannot legitimize the work of the European Commission, which effectively functions as a government, because it is hardly capable of controlling it.

It is naïve to believe that one can build a transnational super-state based on the model of conventional Western democracies, political philosophers argue. The difficulties do not lie solely in the attempt to channel the process of shaping the political will within large, heterogeneous areas like the European continent, across cultural and linguistic barriers, into an equitable process with a unified outcome. More importantly, there is a fundamental problem: Who exactly is the subject of this democracy supposed to be, as represented by its super-parliament? The people of Europe? It is not just the notoriously suspicious British, but each nation in Europe, which sees its sovereignty challenged when it is defeated in a vote. After all, being sovereign means, in a conventional sense, not having to do what another nation says.

Because it is so difficult (perhaps impossible?) to democratically control political actors in international institutions, constitutional experts and political scientists are working on alternatives to the Western nations' traditional model of democracy everywhere such organizations exist. What legitimizes the power of the World Trade Organization? Which parliament monitors the activities of the International Criminal Court? How democratic is the Basel Committee, which supervises banks' credit policies? And who monitors the voting behavior of the nuclear powers on the United Nations Security Council?

"Output" Democracy

Does democratic legitimacy still play any kind of role anymore? According to the Frankfurt-based sociologist and legal scholar Gunther Teubner, a web of regulations and norms has developed over the heads of citizens and nations as a result of international treaties, economic regulations, interest groups and non-governmental organizations. This complex of rules has a significant influence on the daily lives of people without ever having been approved by a parliament, he argues.

In this regard, the insistence on the classical model of democratic legitimization from the bottom up -- in other words, from the citizen to the state -- has become downright old-fashioned. European politics threatens to become hopelessly ineffective if it allows itself to become too closely tied to parliaments. It is not surprising that Europe, too, is to be streamlined in what Udo Di Fabio, a member of the Federal Constitutional Court and one of the authors of the June 30 decision, calls the "wake of the global community." Di Fabio's former colleague Wolfgang Hoffmann-Riem has already reflected publicly on the possibility of "no longer securing legitimization solely through institutions and processes, but also through results."

In other words, the Brussels bureaucracy no longer needs to ask itself: What is the interest of citizens? Instead, it can ask itself: What is in the interest of citizens? And it also needs to try to convince Europeans of its legitimacy on the basis of its results. Heidelberg-based international law expert Armin von Bogdandy speaks of "gubernative (sic) law-making" and expresses similarly paternalistic ideas when he argues that it is the executive which should decide which rules are to apply in Europe.

These are ideas from the theory of so-called "output" democracy, in which more weight is placed on the persuasive power of results than legitimization through "input" from democratic opinion-shaping processes within the population.

The notion of Europe as an output democracy is an apt description of what is now happening in Brussels. For instance, last week's "output" from the EU's competition commissioner, Neelie Kroes, was probably convincing for a majority of European citizens: She fined two large energy providers, Germany's E.on and France's GDF Suez, €553 million ($781 million) each because of a profiteering cartel agreement between the companies. And it is correct to point out that this outcome could only be achieved because Brussels was not required to pay any heed to democratically elected decision-makers in Germany, for example. The German government may have no problems with legitimacy, but it is also immensely pro-industry. Germany's ruling grand coalition government would never have dared to inflict such a blow on a German energy giant like E.on.

Are we better off under this output democracy? Perhaps. The only disadvantage is that it isn't actually a democracy. The shaping of the political will in this brave new political world does not take place from the bottom up, but precisely the other way around.

The judges have taken a stance against this system. That stance is important not just because of their appeal to the democratic principles of the German constitution, the Basic Law, which, from the court's standpoint, are sacrosanct. It is -- and this is their second major achievement -- also a serious attempt to rethink democracy for the age of major supranational decisions.


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