Democracy and Legitimacy in The European Union

The Oxford Handbook of the European Union
Erik Jones, Anand Menon, and Stephen Weatherill

Print publication date: Jan 2013 Print ISBN-13: 9780199546282 Published to Oxford Handbooks Online: Jan-13 Subject: Political Science, European Union DOI: 10.1093/oxfordhb/9780199546282.001.0001
Democracy and Legitimacy in the European Union

Vivien A. Schmidt
DOI: 10.1093/oxfordhb/9780199546282.013.0046
Abstract and Keywords

This article examines the quality of democracy and legitimacy of the EU. If the EU can be considered democratic in terms of its institutional set-up, it is so in ways unlike those of nation-state democracies. While democracies in nation states have established governments, the EU has governance, in which governing occurs without an established government through multiple authorities in highly complex sets of interrelations with state as well as societal actors. Scholars remain divided over whether a complicated set of institutional arrangements has engendered a democratic deficit for the EU and/or its member states, and also differ in the analytic framework deployed. They tend to summarize their main arguments using concepts borrowed from systems theory, as they analyse the interrelationships between output legitimacy, judged in terms of the effectiveness of the EU's policy outcomes for the people; input legitimacy, judged in terms of the EU's responsiveness to citizen concerns as a result of participation by and representation of the people; and throughput legitimacy, building upon yet another term from systems theory, judged in terms of the accountability, transparency, and efficacy of the EU's decision-making processes along with their openness to pluralist consultation with the people.
EU, democracy, output legitimacy, input legitimacy, throughput legitimacy, systems theory
If the EU can be considered democratic in terms of its institutional set-up, it is so in ways unlike those of nation-state democracies. While democracies in nation states have established governments, the EU has governance, in
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which governing occurs without an established government through multiple authorities in highly complex sets of interrelations with state as well as societal actors. The EU lacks a directly elected president or parliament-elected prime minister, a fully empowered legislature, vigorous political parties, and a region-wide competitive, partisan electoral system. Instead, it has strong but indirect representation by nationally elected executives in the Council of Ministers and the European Council, and weak but direct representation by the European Parliament. Although the European Parliament has gained significant co-decision-making powers with the Council over time, making it more independent from the executive than most national parliaments, it remains weaker than any national parliament with regard to executive appointments and legislative initiatives, since it has no say over the appointment of the Council president, has only approval powers over the appointment of the Commission president and members, and has comparatively little input into legislative formulation. European Parliament elections, moreover, which are organized within rather than across member states, continue to be second-order, given the greater focus on national than European issues. By comparison, the non-majoritarian institutions of the EU have greater powers than in any national democracy. The EU Commission, an unelected bureaucracy whose members are appointed by the Council and approved by the European Parliament, has initiation powers similar to those of federal legislatures and unitary executives while it has oversight and enforcement responsibilities similar to those of national executives generally. A regulatory body like the ECB has more autonomy from political pressures and influence of the member states or EU institutions than any central bank from national governments and institutions. And the Court of Justice of the European Union (CJEU) is even more independent than the most independent of national supreme courts, given EU decision rules that make it very difficult for the member states in the Council to overturn its judgments. The very make up of the EU, then, means that scholars have had to go beyond the traditional ways of thinking about democracy and legitimacy as tied to national institutional forms and practices. But they have had to consider not just how to legitimate governance at the supranational level but also how this affects national-level democracy and legitimacy. And here, although one can make across-the-board generalizations about member states loss of national executive autonomy and parliamentary power
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and gains in judicial independence and sub-national regional autonomy, the impact of EU institutions on its member states democracies is also more subtly differentiated. This is because the EU has a highly compound governance system1 which is not only multilevel since it includes EU, national, and regional levels (see the relevant chapters in this volume) and multi-centered as a result of the geographical dispersion of its governing activities2 but also multi-form along a continuum from simple polities where governing activity tends to be channeled through a single authority, as in France or the United Kingdom, to more compound polities where governing activity is more dispersed across multiple authorities, as in Germany and Italy.3 Scholars remain divided over whether this complicated set of institutional arrangements has engendered a democratic deficit for the EU and/or its member states. They also differ in the analytic framework deployed. Some scholars consider democratic legitimacy in terms of its institutional form and practice as a system of governance, and other scholars focus on its interactive construction in the European public sphere. But whatever their differences in substantive theory and analytic framework, scholars have tended to summarize their main arguments using concepts borrowed from systems theory, as they analyze the interrelationships between output legitimacy, judged in terms of the effectiveness of the EU's policy outcomes for the people; input legitimacy, judged in terms of the EU's responsiveness to citizen concerns as a result of participation by and representation of the people; and what we will call throughput legitimacy, building upon yet another term from systems theory, judged in terms of the accountability, transparency, and efficacy of the EU's decision-making processes along with their openness to pluralist consultation with the people. 46.1 EU Legitimizing Mechanisms: Output, Input, Throughput Debates about the democratic legitimacy of the EU have been largely focused on mechanisms that Fritz W. Scharpf has defined as output legitimacya performance criterion centering on the ability of EU institutions to govern effectively for the peopleand input legitimacyinvolving political participation by the people and citizen representation of the people.4 These terms have been borrowed from systems theories, originating in particular in the work of David Easton,5 at the same time that they pick up on Abraham Lincoln's famous dictum about democracy requiring government by the people, of the people, and for the people. Output legitimacy has mostly been tied to the policy-related performance of its non-majoritarian
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institutions such as the ECB, the European Commission's Competition Authority, the CJEU, and other regulatory bodies, while input legitimacy has instead been focused on the EU's majoritarian institutions like the European Parliament and the Council and on the practices involving the representation of citizen demands through elections as well as interest-group and grass-root mobilization. Missing from this theorization, however, is any general theory about the institutional practices that constitute what I will call, borrowing again from systems theory, throughput legitimacy. This conceptualization is intended to encompass not only the internal processes and practices of EU governance but also what I have previously termed, adding a preposition to Abraham Lincoln's phrase, interest intermediation with the people.6 Throughput legitimacy is a performance criterion centering on what goes on inside the black box of EU governance, between the input and the output, which has typically been left blank by political systems theorists. It denotes not just the efficacy of EU governance processes but also, and most importantly, their accountability, meaning that policy actors are responsive and can be held responsible for output decisions; their transparency, meaning that citizens have access to information; and their openness to civil society, meaning that citizens organized in interest-based organizations have access to and influence in the decision-making process. Curiously enough, there has been little theorization about these processes of throughput governance with the people taken as a whole,7 despite the fact that there has been much about the legitimacy of individual aspects of the process within the Commission, the Council, and the European Parliament as well as with civil society. Output for the people, input by and of the people, and throughput with the people are legitimizing mechanisms that are present in all mature national democratic systems. In the EU, they are largely split between the EU and national levels of governance. At the EU level, output governing effectiveness for the people and throughput interest consultation with the people are the primary legitimizing mechanisms. At the national level, instead, input political participation by the people and citizen representation of the people are the focus of legitimization. This creates a dynamic in which EU level output policies and throughput processes alter the equilibria of national legitimizing mechanisms, by putting pressure on national-level input politics while diminishing the importance of national throughput processes and the amount of purely national output policies. This
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can generate legitimacy problems for EU member states generally, and in turn for the EU. What also emerges from this is that one cannot talk about remedying the problems of EU democracy and legitimacy without recognizing that increasing any one legitimizing mechanism may have negative repercussions on another, as well as on the legitimizing mechanisms of national democracies. For example, more input through greater politicization may complicate throughput efficacy and undermine output performance. Any recommendations for the reform of the EU have to face up to these interactive effects, and the possibility that increasing any one of these legitimizing mechanisms may negatively affect the other two. That said, whereas input and output legitimacy may involve trade-offs, where little input may be offset by good output, or much input may make up for bad output, throughput does not. More accessible and accountable throughput cannot make up for little input or bad output while bad throughput consisting of oppressive, incompetent, corrupt, or biased governance practicesregularly undermines public perceptions of the legitimacy of EU governance, regardless of how extensive the input or effective the output. The multilevel nature of the EU system, with the split between national level input and EU level output and throughput, further complicates matters. Here, throughput may be used in EU legitimizing arguments as a kind of cordon sanitaire to suggest that whatever the input, trustworthy throughput processes will ensure that it emerges as uncorrupted output. 46.2 Output Legitimacy The large majority of scholars of the EU have tended to argue that the EU suffers from a democratic deficit, regardless of the legitimizing mechanism. Only a few scholars defend the EU as democratic enough already, and they generally tend to base their defense on the output legitimacy of the EU's institutional forms and practices. Giandomenico Majone focuses on the non-majoritarian institutions that make of the EU a regulatory state, and argues that the EU's legitimacy is based on the delegated responsibility of its expertocracy to produce effective policies and decisions for the people.8 Andrew Moravcsik, who characterizes the EU as more of an intergovernmental organization than a regulatory state, maintains that the EU's institutional checks and balances along with its delegated authorities ensure that the EU is no worse than other democracies in terms of the output legitimacy of its decisions.9 Anand Menon and Stephen Weatherill argue that the EU's output legitimacy is based on its ability to serve an efficiency
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promoting function by doing things for the member states that they cannot do on their own, such as creating the internal market, speaking for the member states in international trade negotiations, and acting through the ECB to coordinate responses to the economic meltdown.10 James Caporaso and Sidney Tarrow have additionally contended that output for the people comes out of what Polanyi in The Great Transformation argued was the constant process of social re-equilibration of economic liberalization through the simultaneous movement/counter-movement of disembedding and reembedding markets in society, with EU market-correcting alongside EU market-making, as in ECJ rulings in such areas as gender equality, regional equality, environmental protection, and laws promoting family solidarity in the case of labor mobility.11 Although these views of the EU's output legitimacy make important points about the ways in which EU institutional forms and practices have ensured a certain kind of non-majoritarian legitimacy, they make three questionable assumptions. Grounding output legitimacy primarily in institutional form or practice, whether through the EU's regulatory functions or its structural checks and balances, seems to assume that output is necessarily good simply because it is produced by independent regulatorsan assumption that Majone himself now questions;12 that its output cannot be bad simply because it has multiple vetoes; and that's its policies intrinsically serve the general interest. First, the problem with assuming that output is necessarily good because produced by independent regulators fails to deal with the difference between non-majoritarian institutions at the EU and national levels. At the national level, the decisions of non-majoritarian institutions are accepted as legitimate because they operate in the shadow of politics, as the product of political institutions, with political actors who have the capacity not only to create them but also to alter them and their decisions if they so choose meaning that they are balanced by institutional input legitimacy. At the EU level, there is no such political balancing, given the EU's decision rules that make it almost impossible to alter such decisions, let alone to alter the nonmajoritarian institutions that produce those decisions, in the absence of any kind of political government that could force the issue. Second, as to the output benefits of the EU's institutional structures, Scharpf has convincingly argued that the joint decision trap of the EU's quasifederal structure is even worse than that of Germany, raising questions about its output effectiveness or its output tout court, while the rationalist
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logic of its multiple veto structure often produces sub-optimal substantive policy outcomes.13 What is more, a structural logic that sees checks and balances as in themselves democratic and legitimate is also problematic because it takes as a fundamental premise the thwarting of majoritarian expressions of the popular willsomething that may be accepted in federal systems like Germany or the US but not in unitary states like France and the UK. Third, with regard to the blanket assumption that the EU's non-majoritarian output policies are legitimate because in the general interest, an increasing number of contested decisions by the EU Commission and the ECJ throw this too into question. These decisions include the Commission's services initiative that privileged home country rules, including pensions and wage rates for service workers in host countries (Directive 2006/123 of the Parliament and the Council on services in the internal market [2006] OJ L376/36), and CJEU decisions focused on freedom of movement that curtailed national unions rights to strike in the Laval and Viking cases or struck down Austrian medical schools quotas on German medical students. Although these could be seen positively from a EU-level perspective as promoting a Polanyian, market-correcting governance for all Europeans, it can just as readily be seen negatively from a national-level perspective as a neo-liberal post-Polanyian destruction of national labor relations and welfare systems.14 These examples illustrate a fourth drawback to output legitimacy, which takes us to the interactive construction of output legitimacy. As Furio Cerutti has argued, the performance-based legitimacy of the output variety is insufficient for legitimization, since outcomes also require a kind of Weberian legitimacy, by which he means the substantive values and principles guiding the performance, that make the performance valued.15 In other words, even if policy performance is optimal, if the actual content of the policies clashes with national values and principles, as reflected in European citizens perceptions of EU policies as acceptable and appropriate (or not), then its output legitimacy is in question. Constructive output legitimacy depends not only on how EU policies resonate with citizen values but also by how well elites discourse and narratives serve to legitimate those policies and how citizens respond in the context of media-carried communicative discourses of deliberation or even contestation. Such discourses may be top-down, as political elites engage in legitimating discourses about the EU and its policies, or bottom-up, as EU-related policies and discourses generate responses and debate from
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the national media and opinion leaders along with the general public. Such communicative discourses can be centered on internal policies, in efforts to highlight the institutional output performance of, say, the single currency, the internal market, and environmental policies, or to foster positive attitudes toward certain kinds of EU norms and values, such as Commission's campaigns to promote gender equality, oppose racism, or build the concept of social Europe to counter perceptions of an EU neoliberal policy focus. Alternatively, they may be concerned with external policies, say, by promoting human rights in trading partners, casting the EU as a normative power in its neighborhood as well as in the world more generally. In the course of generating discussion, deliberation, and even contestation about EU policies, the communicative discourse of national elites may also perform an identity-building function, since the sense of being European is generally built not just on doing, as in institutional policy outputs, but also on saying what the EU is doing, which makes for constructive interactive outputs. The problem here is that national politicians in recent years have tended to engage in comparatively little saying about what the EU is doing. Instead, when national politicians do speak on the EU, they have tended to engage mainly in blame-shifting on unpopular policies, claiming that the EU made me do it, or credit-taking on popular policies, often without even letting on that the policy was generated in Brussels.16 Studies of media discourse and debate show that, with the exception of the big events like EMU, enlargement, or the Constitutional Treaty, there has been relatively little increase in attention to EU policies over time, and that what attention there has been might be more of an elite than a mass public phenomenon.17 Contributing to problems with regard to the building of identity is the fact that the founding, legitimating grand narrative that European integration is all about peace and prosperity no longer works, given that peace appears assured while prosperity is in question. And there are no persuasive new grand narratives either about what the EU is or does, as Jean Leca has convincingly argued,18 whether those focused on the EU as empire, neomedieval19 or cosmopolitan,20 or those evoking new forms of international organization, such as my own notion of the regional state.21 Instead, each of the member states could be said to have its very own (often not very grand) narrative about the EU.22 This said, member-states visions of what the EU is, should be, and should do, can be grouped into four non-mutually exclusive legitimating discourses:23 a pragmatic discourse of a borderless, problem-solving entity ensuring free markets and regional security which
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is generally characteristic of the UK, Scandinavian countries, and some of the CEECs; a normative discourse of a bordered, values-based community, best identified with France, Germany, Italy, and smaller continental European countries; a principled discourse of a border-free, rights-based post-national union attributed to the Commission and to philosophers like Habermas and Beck and Grande;24 and a strategic discourse about the EU as global actor doing international relations differently through multilateralism, humanitarian aid, and peacekeeping.25 This last discourse has increasingly become the preferred one of memberstate leaders generally in their efforts to respond to global challenges such as economic crisis, climate change, poverty, and terrorism and to convince the public that the EU can provide another kind of output legitimacy for the people based on what it can do in the world. But agreement on what to do can always be undermined by disagreements on what the EU legitimately iswhether a widening free market, deepening values-based community, or democratizing rights-based union. Moreover, no amount of discourse can serve to legitimate the EU if words are not followed by actions, that is, by institutional output. After all, what does normative power really mean if the EU cannot deliver, as in the case of the Copenhagen Summit on the environment, or social Europe, as inequalities rise massively between member states as well as within them in consequence of the economic crisis? This said, the decision in May 2010 to create a financial loan guarantee instrument to protect EU member states from default was a major step forward with regard to economic solidarity. But to make the EU truly live up to the rhetoric, as well as to build greater EU identity and community, it would need much more imagination as well as leadership across domains, say, by creating a European Monetary Fund and a European solidarity tax to alleviate poverty, whether collected through a Tobin-like tax on financial transactions or directly from EU citizens.26 46.3 Input Legitimacy Input legitimacy is mostly about the quality of the EU's representative bodies and electoral processes, how these may channel and/or respond to citizen demands, and whether the citizens themselves offer either direct or diffuse support for EU institutions. With regard to all of these issues, scholars focused on institutional form and practices detail the many drawbacks of the EU's political system. They find that although the European Parliament does provide for direct citizen representation, it does not make the grade as input legitimacy by and of the people, in particular with regard to the nature
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and (low) degree of political participation. Arguably most problematic from the vantage point of traditional (read national) understandings of institutional input legitimacy is the absence of a government that citizens could vote in or out, which makes it impossible for the people to express their approval or disapproval of EU policies directly. Another problem is that the EU has lacked the kind of politics to which citizens can relate, since EU decision-making has not really been much about politics in the traditional sense of party and partisanship (although this has been growing). Instead, it is mostly about the politics of interests, whether the politics of the national interest in the Council, the public interest in the European Parliament, or of organized interests in the Commission. Moreover, at the EU level, party differences and leftright political contestation have long been submerged by the general quest for consensus and compromise even though politicization has been growing in Council and European Parliament votes while appointments to EU leadership positions now take politics into account. The co-decision procedures with the Council, voted mostly by supermajorities in the European Parliament, also have the effect of submerging partisan divides, as does the Commission's consensusoriented, technical approach to policy initiation and development, which deliberately seeks to avoid leftright divides as it attempts to balance the representation of all interests. Moreover, European political parties remain weak, underdeveloped, and not very cohesive in the European Parliament, given the diversity of the national-level parties that make up their membership, while European Parliament elections suffer from high rates of abstention (see Chapter 58, this volume). As a result, policy-making at the EU level can be characterized as policy without politics, which in turn makes for national politics without policy, as increasing numbers of policies are transferred from the national political arena to the EU, leaving national citizens with little direct input on the EUrelated policies that affect them, and only national politicians to hold to account for them.27 This has already had a variety of destabilizing effects on national politics, including citizen demobilization on the one hand and radicalization on the other. At the EU level, moreover, all of these issues have led to a decline in the kind of diffuse support that Easton identified as a key factor in input legitimacy. This is because the permissive consensus of the early years, in which citizens largely ignored the EU and its outcomes has been replaced by a constraining dissensus along with a rise in Euro-skepticism.28 What makes matters worse, as Hans-Peter Kriesi and colleagues demonstrate, is that new cleavages have developed between
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citizens whose ideas for Europe are more open, liberal, and cosmopolitan in orientation and those whose ideas are more closed, xenophobic, and nationalist, or even EU-regionalist oriented.29 The result has been that national electorates have typically been less mobilized along leftright party lines on EU-related issues than in terms of identity politics, especially on the right.30 And with the gradual awakening of the sleeping giant of crosscutting cleavages between pro-European cosmopolitans and Euro-skeptic nationalists in mainstream parties of the right and the left, the EU is likely to see much more hotly contested, politicized European Parliament elections than in the past, even if they remain second-order elections.31 For scholars concerned with constructive input legitimacy, all the above problems are compounded by the thinness of the communicative processes that articulate citizen ideas and concerns in the European public sphere. The lack of a common European language, a European media, or a European public opinion ensures that the communicative discourse comes largely by way of national political actors speaking to national publics in national languages reported by national media and considered by national opinion. Although the resulting fragmented communication is attenuated somewhat by the fact that there is a developing European public sphere in which national publics are increasingly aware of European issues and the views of other member-state publics, as noted above, this does not get around the institutional input reality that without a Europe-wide representative politics to focus debate, European political leaders have little opportunity to speak directly to the issues and European publics have little ability to deliberate about them or to state their conclusions directly through the ballot box. And when they have had the opportunity, as in referendums on the Constitutional and Lisbon Treaties, they have tended to prefer to express their concerns about the national impact of EU policies rather than to respond to the question asked (about EU institutions). This said, the fact that citizens were able for once to discuss, deliberate, and contest the issues during such referendums was in itself legitimizing in terms of constructive input, even if the No votes were delegitimizing in terms of institutional input. So, is the answer to bring in more policy with politics at the EU level, as many scholars advocate, in the effort to diminish the EU's input democratic deficit? Some have resisted this suggestion because they see politicization as deleterious to the EU's output governing effectiveness for the people. And more politics in such complex institutional structures could also lead to stalemates that would only increase citizens disaffection from and
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dissatisfaction with the EUthus further undermining diffuse input support. Yet others worry that it is too soon for any such politicization given legitimacy problems relating to the lack of citizen identity, collective will, and a fully developed public spherewhich speaks to the interactive construction side of EU input legitimacy. But the cat is already out of the bag, so the question is how to politicize within the context of the current institutional set-up. Simon Hix's proposal for a greater majoritarian component to the politics of the Council and the European Parliament in order to make it possible to have more clearly demarcated policies of the left or right implemented with greater output efficiency,32 while a step in the right direction, is premature, since EU political parties lack the kind of cohesion and EU citizens the kind of collective will necessary for any kind of majoritarian politics. The EU might do better with the kind of proportional representation system of a country like Germany in which, once the rightleft polarization of elections campaigns is over, compromise and consensus-seeking rule, in particular at times of grand coalitions. Beyond this, greater citizen access to the European Parliament either directly or through the national parliaments is an area crying out for reform. But all of this also demands better working EU institutions to respond to input and to produce output, which is the domain of throughput legitimacy. 46.4 Throughput Legitimacy Throughput legitimacy is focused on the policy-making processes through which decisions go from input to output within the black box of EU governance. This includes not only concern with the workings of the decisionmaking processes as a wholethat they proceed with efficacy in accountable and transparent mannerbut also on the intermediation processes through which citizens qua interests as opposed to qua voters have an influence. Because throughput has not usually been part of theorizing about EU legitimacy, it has sometimes accompanied discussions of output, where particular institutional or discursive processes are seen as preconditions for better output performance, and occasionally discussions of input, where certain institutional or deliberative processes are assumed better for input participation. Examples include arguments in favor of delegating (throughput) control of monetary policy to the ECB to ensure price stability (output) or of maintaining the elaborate (throughput) system of checks and balances of EU governance to guard against the excesses of majoritarian (input) rule.
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For institutional scholars, throughput legitimacy includes not only the workings of the decision-making processes as a wholethat they function efficaciously, in an accountable and transparent mannerbut also the intermediation processes through which citizens organized in interest groups have a direct influence on policy-making. Throughput legitimacy via interest-based consultation with the people represents a way in which minority interests can gain a voice even without a majority vote. In the EU, such interests include not only well-organized special interests, such as business, but also more diffuse, difficult-to-organize majority interests such as consumer groups and public interest oriented groups such as environmental groups, policy think tanks, or even social movements. This kind of legitimacy has been theorized not only by the pluralist political scientists of the 1950s and 1960s in America but also more recently by theorists of associative democracy, as another form of democracy in its own right as well as a corrective to representative democracy. For the EU, throughput governance with the people through pluralist-type consultation mainly as part of the joint decision-making process involving a wide range of governmental and non-governmental actors commonly known as the Community Methodhas deliberately been encouraged as a way of counterbalancing the paucity of governance by or of the people through political participation and citizen representation. But it is only in recent years that such functional representation through interest groups has come to be seen as an additional form of democratic legitimization in the EU. Within the EU, the Commission and increasingly the European Parliament have sought to promote more pluralist consultation with the people, meaning interest groups and members of civil society, as a way to counterbalance the lack of governance by the people and to promote democratic legitimacy.33 The Commission in particular sought to find ways to make policy-making more inclusive and accountable to civil society defined as including special interests like business and labor along with activist citizensas well as more transparent (as per the White Paper on European Governance 2001). Accountability was to be improved through closer controls on expenditures and appointments and transparency by providing greater access to EU documentation for the media and interest groups (see Chapter 47, this volume) as well as through the internet and the development of e-governmentwhich often leads to information overload for any individual trying to sort through the massive amounts of materials available while navigating through EU websites. As for access and openness to civil society, the EU Commission sought to create a more balanced and open playing field among interests groups, including creating grass roots
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interest groups (e.g. of women and consumers) to counterbalance the more powerful, already present business groups. In addition to such institution-based practices, the EU has sought to increase throughput legitimacy via more and better discursive interaction in the coordinative discourses of policy construction among EU actors. Examples of formal processes include the Commission-led, consensusfocused intermediation with experts in comitology and public interest groups, which has been described as a form of supranational deliberative democracy34 or directly deliberative polyarchy.35 One might add here the dynamic accountability involved in the deliberative processes of peer reviews, whether in forums, networked agencies, councils of regulators, or the open method of coordination;36 or the strong publics of the European Parliament, with the debates contributing to the greater accountability and transparency of the decision-making process, although one could also see this as contributing to input legitimacy, through the representative nature of MEPs.37 More ad hoc processes of throughput legitimization include the Constitutional Convention, with arguably the first (and only) creation of an EU deliberative public sphere of communication in which ideas about how to democratize the EU flowed freely, at least at first, in contrast to the IGC that followed, which went back to the same old closed-door bargaining routine.38 Other informal processes of discursive interaction that contribute to throughput legitimacy from below include the role of social movements in advocacy coalitions and grass-roots activism.39 Moreover, with regard to interest intermediation, rather than competition among interests, the EU Commission sought to foster cooperation in its consensus-based policy formulation process, with rules of the game that entail that in order to play, participants must gain and maintain credibility as trusted actors providing accurate technical information.40 But regardless of how open to public interest consultation with the people the EU may be, the problem for national citizens is that this kind of supranational policy-making is very far from the kind of representative democracy by and of the people they tend to see as the most legitimate. And it is in any case not open to most of them, given the difficulties of transnational mobilization for most citizens. Another major problem for efficacious throughput lies in the institutional processes of decision-making themselves. The Lisbon Treaty was touted as the remedy to the institutional decision-making problems of the EU, as all three institutional actorsCommission, Council, and European Parliament had their powers enhanced. But big legitimacy problems remain, first, with the institutional rules, in particular the fact that once decisions are
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made, they are nearly impossible to overturn by the member states in the Council; second, with their transparency, given that the Commissionbased drive toward greater access to the massive volume of EU-generated information on EU decisions perversely may make it less transparent; and third, with their accountability, given the secrecy of Council meetings. There are also problems with regard to the European Parliament's role, since it has little influence over initiation, no connection to comitology, and so far also little connection to national parliamentsalthough this could change for the better, given that a procedure for consultation was written into the Lisbon Treaty. Finally, and arguably most problematic for throughput, are (a) the unanimity rule for treaties, in which the ability of any member state to veto any agreement can lead to treaty delays, dilution, or deadlock; and (b) the uniformity ideal for further integration, in which the fear that differentiated integration will undermine an already diffuse sense of solidarity and community stymies not only deeper integration but also enlargement through graduated membership.41 So how would one remedy the problems of throughput legitimacy? With regard to the rules, replacing the unanimity rule with supermajorities with opt-outs on treaties and abandoning the uniformity ideal in favor of more differentiated integration would be steps in the right direction.42 With regard to pluralist access, why not through more policy with pluralist politics? National governments need to find ways of encouraging citizen involvement in supranational decision-making by helping them to organize themselves transnationally so as to gain access and influence in European decision-makingproviding funding, information, and strategic advice. Social movements, moreover, could also do more on their own to try to get their message through to Brussels through transnational organization and representation, rather than spending so much of their time and energy organizing No votes in treaty referendums. But national governments would need also to improve the national-level inputs, by bringing civil society into national formulation processes focused on EU decision-making. Importantly, however, stakeholder democracy, even if improved, is not necessarily public interest oriented democracy. And however much the EU and national governments seek to promote policy with pluralist politics to enhance throughput legitimacy, this cannot be a substitute for input legitimacy, although it can be a supplement to it as well as a way of ensuring better output legitimacy.
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46.5 Conclusion As for a final assessment of the quality of democracy and legitimacy of the EUit is both worse than it seems to some but better than it appears to others. Moreover, the problems of European democratic legitimacy are not confined to the EU level but are arguably as serious if not more so for the EU's member states. And only by reinforcing democracy at the national level as well as by improving national citizens access to EU decision-making through input and throughput processes can we be sure to shore up the legitimacy of EU output. Finally, in order to explain the problems of the EU, an institutional analysis of EU structures and practices alone is not enough; the ideational and discursive aspects of democracy and legitimacy are as, if not more, important. This is because how citizens think and talk about the EU and its institutions are as important for democratic legitimacy as are the democratic practices that infuse the institutions with legitimacy.
Notes:
(1.) Vivien A. Schmidt, Democracy in Europe (Oxford: Oxford University Press, 2006)Find it in your Library; Sergio Fabbrini, Compound Democracies (Oxford: Oxford University Press, 2007)Find it in your Library. (2.) Kalypso Nicoladis, Conclusion, in Kalypso Nicholadis and Robert Howse, eds, The Federal Vision (Oxford: Oxford University Press, 2001).Find it in your Library (3.) Schmidt, Democracy in Europe. (4.) Fritz W. Scharpf, Governing in Europe (Oxford: Oxford University Press, 1999).Find it in your Library (5.) David Easton, A Systems Analysis of Political Life (New York: Wiley, 1965)Find it in your Library. (6.) Schmidt, Democracy in Europe. (7.) The exception is a small cluster of scholars mainly in Germany and bordering countries, although most have limited the definition of throughput to rules-based procedural legitimacy, leaving out interest group participation. See, for example, Michael Zrn, Democratic Governance Beyond the Nation-State, European Journal of International Relations 6, no. 2 (2000), 183221Find it in your Library; Arthur Benz and Yannis Papadopoulos,
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Governance and Democracy (London: Routledge, 2006)Find it in your Library; R. Holzhacker, Democratic Legitimacy and the European Union, Journal of European Integration 29, no. 3 (2007), 25769Find it in your Library; Thomas Risse and Marieke Kleine, Assessing the Legitimacy of the EU's Treaty Revision Methods, Journal of Common Market Studies 45, no. 1 (2007), 69 80.Find it in your Library (8.) Giandomenico Majone, Europe's Democratic Deficit, European Law Journal 4, no. 1 (1998), 528.Find it in your Library (9.) Andrew Moravcsik, Reassessing Legitimacy in the European Union, Journal of Common Market Studies 40, no. 4 (2002), 60324.Find it in your Library (10.) Anand Menon and Stephen Weatherill, Transnational Legitimacy in a Globalising World: How the European Union Rescues its States, West European Politics 31, no. 3 (2008), 397416.Find it in your Library (11.) James Caporaso and Sidney Tarrow Caporaso, Polanyi in Brussels: European Institutions and the Embedding of Markets in Society. RECON Online Working Paper 2008/01, available at: <www.reconproject.eu/ projectweb/portalproject/RECONWorkingPapers.html>. (12.) Giandomenico Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (Oxford: Oxford University Press, 2009).Find it in your Library (13.) Scharpf, Governing in Europe. (14.) Martin Hpner and Armin Schfer, A New Phase of European Integration: Organized Capitalisms in Post-Ricardian Europe. MOIFG Discussion Paper no. 2007/4. Available at SSRN, <http://ssrn.com/abstract = 976162. (15.) Furio Cerutti, Why Legitimacy and Political Identity are Connected to Each Other, Especially in the Case of the European Union, in Furio Cerutti and Sonia Lucarelli, eds, The Search for a European Identity (London: Routledge, 2008), 322.Find it in your Library (16.) Schmidt, Democracy in Europe. (17.) Ruud Koopmans, The Transformation of Political Mobilisation and Communication in European Public Spheres, 5th Framework Programme
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of the European Commission (2004), available at: <http://europub.wzberlin.de; Neil Fligstein, Euroclash (Oxford: Oxford University Press, 2008)Find it in your Library; Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres (Ithaca: Cornell University Press, 2010), 12833.Find it in your Library (18.) Jean Leca, The Empire Strikes Back! An Uncanny View of the European Union. Part II, Government and Opposition 45, no. 2 (2010), 208 90.Find it in your Library (19.) Jan Zielonka, Europe as Empire (Oxford: Oxford University Press, 2006).Find it in your Library (20.) Ulrich Beck and Edgar Grande, Cosmopolitan Europe (Cambridge: Polity Press, 2007).Find it in your Library (21.) Schmidt, Democracy in Europe; Vivien A. Schmidt, Re-Envisioning the European Union: Identity, Democracy, Economy, Journal of Common Market Studies 47 Annual Review (2009), 1742.Find it in your Library (22.) Risse, Community of Europeans. (23.) See Vivien A. Schmidt, European Elites on the European Union: What Vision for the Future?, in Andrew Gamble and David Lane, eds, European Union and World Politics: Consensus and Division (London: Palgrave Macmillan, 2009), 25773Find it in your Library. The definitions of the first three discourses follow E. O. Eriksen and J. E. Fossum, Europe in Search of Legitimacy, International Political Science Review 25, no. 4 (2004), 43559Find it in your Library, and Helen Sjursen, Enlargement in Perspective: The EU's Quest for Identity Recon Online Working Paper 2007/15, available at: <www.reconproject.eu/projectweb/portalproject/ RECONWorkingPapers.html>. The definition for the fourth discourse follows Jolyon Howorth, European Security and Defense Policy (Basingstoke: Palgrave, 2007).Find it in your Library (24.) Jrgen Habermas, The Postnational Constellation (Cambridge, MA: MIT Press 2001)Find it in your Library; Beck and Grande, Cosmopolitan Europe. (25.) Howorth, European Security. (26.) See Schmidt, Re-Envisioning for more on this as well as other suggestions.
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(27.) Schmidt, Democracy in Europe, ch. 4. (28.) Liesbeth Hooghe and Gary Marks, Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus, British Journal of Political Science 39, no. 1 (2009), 123.Find it in your Library (29.) Hans-Peter Kriesi, Edgar Grande, and Romain Lachat, West European Politics in the Age of Globalization (Cambridge: Cambridge University Press, 2008)Find it in your Library. (30.) Marks and Hooghe, Postfunctionalist Theory. (31.) Mark Franklin and Cees van der Eijk, The Sleeping Giant, in Wouter van der Brug and Cees van der Eijk, eds, European Elections and Domestic Politics (Notre Dame: University of Notre Dame Press, 2007), 189208.Find it in your Library (32.) Simon Hix, What's Wrong with the European Union and How to Fix It (Cambridge: Polity Press, 2008).Find it in your Library (33.) Justin Greenwood, Organized Civil Society and Democratic Legitimacy in the European Union, British Journal of Political Science 37, no. 2 (2007), 33357.Find it in your Library (34.) Christian Joerges and and Jrgen Neyer, Transforming Strategic Interaction Into Deliberative Problem-Solving, Journal of European Public Policy 4, no. 4 (1997), 60925.Find it in your Library (35.) Oliver Gerstenberg and Charles Sable, Directly Deliberative Polyarchy: An Institutional Ideal for Europe? (2000), available at: <http:// www.law.columbia.edu/sable/papers/gerst-sable1029.doc. (36.) Charles Sabel and Jonathan Zeitlin, Experimentalist Governance in the European Union (Oxford: Oxford University Press, 2010), 1220.Find it in your Library (37.) Eriksen and Fossum, Europe in Search of Legitimacy. (38.) E. O. Eriksen, John Erik Fossum, and Augustn Jos Menendez, Developing a Constitution for Europe (London: Routledge, 2004)Find it in your Library; Risse and Kleine, EU's Treaty Revision Methods.
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(39.) Klaus Eder and Hans-Jrg Trenz, Prerequisites of Transnational Democracy and Mechanisms for Sustaining It: The Case of the European Union, B. Kohler-Koch and B. Ritberger, eds, Debating the Democratic Legitimacy of the European Union (Lanham, Maryland: Rowman and Littlefield, 2007), 1712.Find it in your Library (40.) David Coen, EU Lobbying (London: Routledge, 2008).Find it in your Library (41.) Schmidt, Re-Envisioning, 2832. (42.) Schmidt, Re-Envisioning, 2832.
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Democracy and Legitimacy in The European Union

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The Oxford Handbook of the European Union

Erik Jones, Anand Menon, and Stephen Weatherill

Democracy and Legitimacy in the European Union

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Democracy and Legitimacy in the European Union

Democracy and Legitimacy in the European Union

Democracy and Legitimacy in the European Union

Democracy and Legitimacy in the European Union

Democracy and Legitimacy in the European Union

Democracy and Legitimacy in the European Union

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