Europe’s Constitution – one cheer for democracy

The paper argues that the Convention created presidential and executive confusion rather than simplicity and has done nothing to tackle the lack of accountability of executive power in Europe.

Europe’s Constitution – one cheer for democracy

As the champagne flowed at the closing session of the European Union’s constitutional convention, many delegates congratulated themselves for the big steps they had taken for Europe’s citizens, and for the boost to democracy they had achieved. But does Europe’s new constitution really end the democratic deficit, or is this just more business as usual, the EU run by and for elites?

The EU so the old joke goes would fail its own democracy test it sets for new members. Lacking in openness, accountability and legitimacy, highly complex in its operations and structures, the surprise is not the distance of the EU from its citizens but that it functions at all. In some areas the new draft constitution proposes major steps forward to tackle these issues but in others, notably in the crucial area of executive power, it adds to the confusion.

One big and long overdue step is to bring the legislative process into the twenty-first century. In future when ministers from all the EU member states sit in Brussels to agree new laws (and EU laws account for about half of legislation in their national parliaments) they will do so in public – a fundamental and vital element of any democratic process. And a step that will stop national ministers blaming the abstract bogey ‘Brussels’ for decisions that they in fact took. But even this crucial step could yet be undone when governments meet to agree the final text since they do not like the proposed ‘legislative council’, a second chamber in all but name, that the conventioneers suggest.

The legislative process is also to be further simplified by ensuring that in normal circumstances the council of ministers, where governments agree legislation, will work jointly with the European Parliament – both must agree for new laws to be passed. A much simpler system of voting is also proposed. Instead of complex weights by country, a dual majority of countries and EU population will be needed when ministers vote, with a constraint that the majority includes at least 60% of the population. In another aid to simplicity and comprehensibility, laws will be called just that – EU laws, not European directives. And all this will be set out in one single constitution for those who can wade through its still turgid language.

And there is a boost for national parliaments too – much closer to their citizens than the remote European Parliament. They will get draft EU laws sent to them at the start of any new initiative, and can hold up a yellow card to ask for a rethink, if that is they can get a third of all the EU’s national parliaments to agree with them. And again it points the finger at who is responsible. If the media wants to know why a new law was not blocked they can ask national MPs first what they did about it.

But this is the end of the good news. In the strange half-state, half intergovernmental construction that is the EU, executive power is shared between the European Commission, representing Europe as a whole, and the Council, representing individual national government interests. The constitution builders focused their central efforts on battling over the distribution of this executive power – forgetting along the way both democracy and simplicity.

The EU is now to have two fulltime Brussels-based Presidents, a move expected to trigger off endless turf-fighting and confusion, whether seen from the inside or the outside, over responsibilities. Neither of these Presidents will be properly legitimate.

The already existing President of the European Commission will now go through what is labelled an ‘election’. Looking curiously unlike most other democratic elections, this will involve European heads of state, after looking at the European election results, suggesting one name to the European Parliament who can say yes or no – faintly reminiscent of ‘elections’ in the former Soviet bloc. Enthusiastic European parliamentarians think they will be able to nominate candidates during the actual European election campaigns but whether heads of state will interpret the process this way is one more confusion yet to be resolved.

Meanwhile the Commission, despite its lack of real legitimacy, will continue to have the exclusive right to propose legislation in almost all areas. And the waters have been further muddied through the idea of making the Commission a two-tier body. The Commission only really deals with 12 -14 main portfolios. But in a 25 plus member state EU noone wants to give up their commissioner, even though commissioners are mandated to represent only the pan-European interest. So an inner tier of 15 commissioners will take decisions and vote, but any country not in the inner group will have a commissioner in the outer tier. What will the outer tier commissioners do? This is not at all clear, but a rather likely outcome is that idle hands will turn to national lobbying and the Commission will descend into intergovernmental infighting.

Meanwhile, President number two, who will run the European Council where government leaders meet and set overall EU strategy, will be appointed behind closed doors by the leaders themselves. And he or she will be accountable in the same way – that is in private to the European leaders. Yet this new President is meant to have the credibility to meet with Bush and Putin and other world leaders.

So the constitution builders have created presidential and executive confusion rather than simplicity and have done nothing to tackle the lack of accountability of executive power in Europe. Vital steps forward on the legislative side have been matched with steps backward on the executive. A typical European muddle but a disappointing outcome for those looking for a real democratic breakthrough.

Kirsty Hughes, Senior Fellow, Centre for European Policy Studies, Brussels and Associate Fellow, London School of Economics.

This article was first published in the International Herald Tribune.

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