A rchive Date
[ 12-02-2003 ]
Category
[ International Relations ]
sub-Categoy
[ Germany ]
|
[Democratic accountability in the age of global markets and continental organizations
- 1. Introductory remarks
- 2. The impact of global markets and agencies on national decision-making processes: four approaches.
- 2.1. Extreme globalization theorists.
- 2.2. The approach stressing the changing role of nation states at the global scale.
- 2.3. The perspective of global financial markets as a new constituency.
- 2.4. The cosmopolitan model of democracy.
- 3. Rethinking the market vs. democracy dicothomy.
- 4. Accountability as a normative commitment.
- 5. Democratic responses to the challenges of global markets and independent agencies.
- 6. The European democratic deficit thesis and the new paths of accountability.
1. In a well-known decision of 1993 concerning the adhesion of the German Republic to the Maastricht Treaty (Brunner), the German Constitutional Court stated that “the inviolable content of the democratic principle” implies that members of Parliament should be accountable towards the people for the accomplishment of all public tasks and functionsThe only admitted exception was the creation from the Maastricht Treaty of the European Central Bank, in order to ensure monetary stability. I quote the decision from Giurisprudenza costituzionale, 1994, 689. . In this view, democracy is exclusively connected with national constitutional orders.
In the same year, a World Bank’s report observed that the so called East Asian miracle was mainly due to the insulation mechanism preserving from political pressure national technocratic elites which supervised macroeconomic managementWorld Bank, The East Asian Miracle, New York 1993, 348-349.. That advocacy for technocratic government echoes the Public Choice theorists presumption that any political deliberation follows entirely from the intent of politicians to be reelected, and should therefore be limited as far as possible in order to ensure economic growth, irrespective of the consequences for democracyIn spite of the deep economic troubles which the “Asian tigers” have recently met, this assumption is still widely held from the World Bank. See J.Fournier, L’Etat dans un monde en évolution. A propos du rapport de la Banque mondiale, Revue française d’administration publique, 1997, 557 ff. .
This view contrasts sharply with the German Court’s, thus demonstrating the depth of constitutional controversy posed from the rise of global markets and global and regional organisationsAlthough globalization of markets may be regarded as a phase in the history of capital, more than an entirely novel process. See J.H.Mittelman, How Does Globalization Work?, J.H.Mittelman (ed.), Globalization: Critical Reflections, London 1996, 230; R.Wade, La globalizzazione e i suoi limiti, in S.Berger e R.Dore (a cura di), Differenze nazionali e capitalismo globale, Bologna 1998, 77 ff..
Relationships between ‘constitutionalism’, ‘democracy’ and ‘nation-state’ have always raised intricate questions. Nevertheless, throughout the last two centuries, liberal democratic thought has presupposed a “symmetrical and congruent relationship”, both between citizen-voters and the decision-makers whom they are, in principle, able to hold to account and between policies of decision-makers and their constituents in a delimited territoryD.Held, Democracy and the Global Order. From the Modern State to Cosmopolitan Governance, Cambridge 1995, 224. . That territory has always corresponded to national boundaries. And both the concept and practice of constitutional orders have been constructed under those premises.
Global markets and global and regional organizations are increasingly reducing the influence of national decision-makers over public policies and, consequently, are changing the relationships with their electorate. Hence derives the question of whether constitutionalism can survive in the age of globalizationSee G.Ferrara, Costituzione e revisione costituzionale nell’età della globalizzazione, in Scritti in onore di Giuseppe Guarino, II, Padova 1998, 211 ss.; C.M.G.Himsworth, In a State No Longer: The End of Constitutionalism?, Public Law, 1996, 639; P.De Vega Garcia, Mundializacion y Derecho constitutional: la crisis del principio democratico en el constitucionalismo actual, Revista de estudios politicos, 1998, 13 ss.. My contribution is devoted to that question, although circumscribed within the meaning of ‘constitutionalism’ which I have before mentioned.
I will first give a brief report of the interpretations concerning the challenges which global markets and organisations are expected to produce over national political deliberation. I will then attempt to give some answer to these challenges in terms of constitutional and democratic theory. Finally, I will inquire whether the outcome of these reflections can be referred to the current debate on democracy in European Union, that is, the most highly developed among continental organizations.
2. The impact of global markets on the relationship between national rulers and their electorate has been analyzed from a wide range of perspectives, which are here grouped as follows.
A first perspective corresponds to the assumption that nation-states can no longer accomplish their tasks and functions, being supplanted by global market forces. A second approach is instead founded on the premise that public institutions have still to play important roles, either through global and regional networks and organizations following from economic globalization, or through the new tasks which only nation-states could accomplish. A third view assumes global financial markets as a new constituency for national decision-makers. A fourth position notices the lack of democracy resulting from global and regional networks, and suggests models and remedies pursuing to enhance transparency and accountability at any scale of government.
2.1. Extreme globalization theorists contend that only two forces matter in the world economy, global market forces and transnational companies, and that neither of these is or can be subject to effective public governance; in this view, macroeconomic and industrial policy intervention by national governments can only distort and impede the rational process of resource allocation by corporate decisions and consumer choices on a global scaleK.Ohmae, The Borderless World, London 1990.. On the other hand, the assumption that global market forces have triumphed over national democracies is shared by the Marxist literature, according to which even international organizations and technocracies are subjected to the international capitalM.Chemillier-Gendreau, Les bases et les conditions de la démocratie internationale, in La pensée 309, 1997, 94; J.-M.Guéhenno, La fin de la démocratie, Paris 1993. .
This convergence is not a casualty, since the triumph of global markets can be asserted either on a simplistic reading of neo-classical economics, or on the gloomy supposition that international capital is a malevolent forceP.Hirst and G.Thompson, Globalization in Question. The International Economy and the Possibilities of Governance, Cambridge 1996, 189. .
The thesis of an irreversible decline of public governance has raised serious objections even on the empirical ground.
First, while Ohmae and public choice theorists assume that politicians cannot get rid of political deficit bias and of interest-group domination in order to return in office, in the past decade the public sector has stopped growing in virtually every advanced industrial country. In the United States, both parties are now committed to a more austere course of budget balance, and, under the Maatsricht Treaty, members of the European Union have committed themselves to limit the public debt and the public deficitR.Kuttner, Everything for Sale. The Virtues and Limits of Markets, New York 1997, 339. .
Moreover, the continuous concentration of industries at the world level may not necessarily lead to a borderless world, to the extent that it is on these major industries that much of the future competition among states for wealth-creating resources will be focused; at this regard, it has been noticed that many developing countries have tried to increase their competitiveness by forming regional trade blocs such as NAFTA, MERCOSUR and APECJ.Stopford, S.Strange, J.S.Henley, Rival states, rival firms. competition for world market shares, Cambridge 1991, 95 and 118. See also P.G.Cerny, Paradoxes of the Competition State: The Dynamics of Political Globalization, in Government and Opposition, 1997, 258 ff..
Finally, the creation of the World Trade Organization (January 1995) follows not only from the end of the Soviet Empire and of the Cold War, but also from the increasing international economic interdependence. National policy makers have realized that a new international cooperation institution was needed in order to cope with international constraints over many national measures, even those of largest economiesJ.H.Jackson, The World Trade Organization and the ‘sovereignty’ question, in Legal issues of European integration, 1996, 186.. While raising new questions about distribution of powers and accountability, WTO’s institution denies the thesis of a mere surrendering of national political powers to global market forces.
2.2. The institutional reorganization whom we are assisting at looks far more complicated than the irreversible decline of public powers imagined by extreme globalization theorists. But do states still play a meaningful, if not pivotal, role in the networks that are increasingly connecting together markets with regional and international agencies and organizations?
Some scholars believe that, while the institution of these agencies and organizations is due to the states will, their development will not depend from national institutions, but from their own capacity to accomplish the tasks and functions for whom they have been created; in this view, transnational networks differ radically from the Westfalian model, nor they are expected to prepare a new international orderS.Cassese, Poteri indipendenti, Stati, relazioni ultrastatali, in Foro italiano, 1996, V, 13..
Other scholars describe an analogous picture, but are concerned for its indeterminacy. Since governing powers cannot simply proliferate and compete, “different levels and functions of governance need to be tied together in a division of control that sustains the division of labour”, and the nation state is central to this process. Although nation states are now simply one class of powers and political agencies in a complex system of powers, they still have a centrality because they provide legitimacy as the exclusive voice of a territorially bounded populationP.Hirst and G.Thompson, Globalization in Question, 188 ff..
Concern for governance takes here priority over the question of whether international governance can be democraticP.Hirst and G.Thompson, Globalization in Question, 184.. In this view, the process of ‘suturing’ governing powers relies on states because of the democratic legitimacy which they still dispose of. But this appears inconsistent with the transformations which global markets and regional and global agencies have already determined at the national scale also on the ground of political accountability and, therefore, of democratic legitimacy.
2.3. The influence which stock markets exert over national decision-making processes has to be distinguished from the challenge for democracy provided by the reorganization of firms at the global scale.
Stock markets have been considered as a second constituency, although very different from the national electorate, before which governments are now accountableT.Padoa-Schioppa, Il governo dell’economia, Bologna 1997, 26; C.Crouch e W.Streeck, Il futuro della diversità dei capitalismi, Stato e mercato, 1997, 19. W.Wriston, The Twilight of Sovereignty: How the Information Revolution is Transforming Our World, New York 1992.. Stock markets are not dominated by few rentiers, since most shares are owned by institutional shareholders such as pension funds, insurance companies, unit trusts and investment trusts, which represent the interest of millions of investors and creditors: their purpose is not to “vote” against any measure not ensuring immediate profits, but is rather to force governments to eliminate fiscal illusions and to enhance the transparency of spending decisions and proceduresReport of The Economist, December 1995..
Rather than affording solutions, then, stock markets would increase the costs of allocational distortions and reward efforts of national governments in reducing budgetary imbalancesInternational Monetary Fund, World Economic Outlook, Globalization. Opportunities and Challenges, May 1997, Washington D.C. 1997, 3..
The assumption of a double constituency raises various objections. Since financial markets are anonymous entities not only for the people, but also for funds investorsR.B.Reich, The Work of Nations, New York 1992, 160., their relationship with political decision-makers cannot easily be compared with that occurring between politicians and citizen-voters. Furthermore, because of new technologies applied to finance, daily financial flows are 50 to 100 times larger than the flows of good and services, and this disconnects financial markets from the real world, suppressing the costraints imposed by space and time which both contribute to man’s balance and his insertion into realityH.Ploix, Wall Street and Politics, in Aspenia, 1996, n. 3, 22, suggesting that universal ethical principles should enhance the behaviour of financial players. .
Finally, increasing pressures for reregulating some international capital flows so as to allow for cross-border investment and borrowing but not speculative currency movementsH.Thompson, The Nation-State and International Capital Flows in Historical Perspective, Government and Opposition, 1997, vol. 32, 113. George Soros has repeatedly contrasted the belief that markets can take care of everything, warning that this belief is today a bigger threat than any totalitarian ideology., contrast the hypothesis of financial markets spontaneously enhancing the transparency of spending decisions and procedures.
2.4. The fourth approach assumes that the impact of global markets and regional and global organizations on national policy requires a theoretical reconstruction of democracy and a set of correspondent institutional devices.
One suggestion is to ovverride the weberian dicothomy between the human rights model and the market model, since the former tends to disorder not less than the latter. The task of a droit mondial raisonnable should consist in ordonner le multiple, also through new international rules correcting current tendencies of markets, which jeopardize a fair economic competition not less than the democratic sphereM.Delmas-Marty, Trois défis pour un droit mondial, Paris 1998, 75 ff..
A quest of a new strategy for democratic theory recurs also in the “cosmopolitan model of democracy”, founded on the principle of autonomy, expressing both the idea that people should be self-determining and the idea that democratic government upholds a legally circumscribed structure of powerD.Held, Democracy and the Global Order, 147..
Accordingly, rights at the centre of the democratic process can be defended independently of the notion of national citizenship and of claims of universality: these rights can be justified directly in relationship to democracy. Since the nature and possibilities of political community do not necessarily refer to national structures and mechanisms of political power, people can be conceived both as citizens of their immediate political communities, and of the wider regional and global networks impacting upon their livesD.Held, Democracy and the Global Order, 224 ff..
The cosmopolitan model of democracy emphasizes its distinction from Hayek’s preference for an international market order relying on the rule of law, which neglects to inquire into the extent to which market relations are themselves power relations that can costrain the democratic process; on the other hand, the rationale of political intervention in the economy should not derive from the domain of political control, but “from the requirements to ensure that the conditions are met for the democratic regulation of sites of power in all their forms”D.Held, Democracy and the Global Order, 246 ff..
At this respect, many complementary suggestions are advanced, including the extension of mechanisms of democratic accountability across international structures, and the establishment of regional parliaments or the enhancement of their role (the European Parliament), which would help to regulate the forces which are already beyond the reach of national democratic mechanisms and movementsD.Held, Democracy and the Global Order, 276 ff..
While presupposing correctly the necessity of reviewing some theoretical premises of democracy, the “cosmopolitan democratic law” may solve conflicts posed from “multiple citizenship” either by relying on a global judicial authority invested of corresponding powers, or on a detailed set of rules which only an international representative body could state. But both these hypothesis would be at odds with multiple citizenship.
Moreover, risks of unchecked political power relations raising from the programme of bringing the economy into the sphere of democracy cannot be avoided by asserting that political intervention would find its rationale in the pursuit and maintenance of the rule of democratic lawD.Held, Democracy and the Global Order, 265-266, replying to a possible shumpeterian objection.. If that rule is founded on universally acknowledged ethical standards, its pursuit and maintenance can hardly be conceived as political intervention in the economy. And if it corresponds instead to choices of elected officials, the schumpeterian objection would maintain its strength.
These difficulties seem related to the opposition between power relations arising from global markets and “cosmopolitan democratic law”, aimed at gradually expanding democracy to any sphere of power. This presupposes that democratic goals can only be achieved by maintaining an excusively artificial concept of democracy.
3. How can understanding of the challenges posed by global markets and agencies be improved, without renouncing to constitutionalism and democratic commitment? If this is the crucial question, we need to draw attention on the opposition between market and democracy which is still largely presupposed by constitutional and political thinking. This tradition, in continental Europe more than elsewhere, treats “the market as though it were a spontaneous order which emerges solely through the unplanned interactions of individual agents”, and “democracy as though it were a planned order which involves the extension of conscious control over blind and unconscious processes”A.Gamble, The Limits of Democracy, in P.Hirst and S.Khilnani (eds.), Reinventing Democracy, The Political Quarterly, Cambridge 1996, 129. .
Even once admitted that either a purely market-oriented or a purely plan-oriented policy cannot today be conceived out of a narrow and socially insulated dictatorshipJ.Dunn, The economic limits to modern politics, in J.Dunn (ed.), The economic limits to modern politics, Cambridge 1990, 36., one might still consider market as a merely spontaneous order and democracy as a merely artificial order.
The short account above afforded of the problems and challenges posed from global markets and agencies demonstrates that that dicothomy is a too rigid approach, and prevents new ways of thinking about how long-term institutional change can best be promoted.
An alternative proposal is to consider both market and democracy as “imperfect systems”, that is, “as particular institutional orders which are both the product of spontaneous interaction, in the sense that many things happen in an unplanned way as the result of individuals adjusting to each others plans and behaviour, and also the product of deliberation and decision, in the sense that the conditions for this interaction are only sustained through political will and commitment”A.Gamble, The Limits of Democracy, 129..
Discoveries of failures of both market and public power go back to Adam Smith, David Hume and Alexis de TocquevilleSee S.Holmes, Tocqueville and democracy, in The idea of democracy, 43, stressing Tocqueville’s refusal “to rely on political or economic mechanism alone”.. Part of that legacy can fruitfully be related to the delicate questions posed by global markets and agencies.
For example, the ultimate significance of the establishment of WTO may rest on Smith’s connections between global commerce and peace, which, in turn, is required for democratic developmentG.Ionescu, Peace, Commerce and Democracy, Government and Opposition, 1994, 47.. In the meanwhile, the mistaken evaluation of markets about Mexican financial conditions before the crisis of 1994See the Report of The Economist, December 1995. denies Hayek’s confidence in the capacity of the ‘spontaneous order’ in collecting informations.
Once admitted that this perspective affords a better understanding both of the risks and of the opportunities of globalization, it is worth examining whether it implies some renouncement to constitutionalism and democratic commitment.
The “imperfect system” perspective relies on mutual adjustments and incremental means, to the extent that the goals of securing equality and liberty can better be achieved by encouraging the development of a learning society, rather than by insisting on the current dicothomy between democracy and marketA.Gamble, The Limits of Democracy, 130.. A “learning society” is a concept deeply connected with a certain idea of democracy and constitutionalism.
In some American theories, achievement of a constitutional balance between market and government becomes crucial. Through deliberative or constitutional politics, “human beings seek to direct and constrain their future interaction, which they anticipate to be largely strategic. They seek to remedy the failure of strategic interaction to yield outcomes affording fair mutual advantage”D.Gauthier, Constituting democracy, in D.Copp, J.Hampton, and J.E.Roemer, The idea of democracy, Cambridge 1993, 322 ff.. While failures of both market and government are once again here presupposed, the constitutional tradition of “We, the people” is called to remedy those failures. As we will see, the comparison with that tradition might help the comprehension of European constitutional adjustments.
4. Moving a step further, it is worth to examine whether consideration of democracy as an entirely ‘artificial order’ might derive from historical contingencies, rather than from normative commitment.
Brunner’s statement that accountability of decision-makers towards the people lies at the heart of “the inviolable content of the democratic principle” connects directly, if not ontologically, accountability as a democratic principle with the symmetrical relationship between national rulers and citizen-voters. But since the assumption is not demonstrated, Brunner does not face openly the question of whether “the inviolable content of the democratic principle” has rather historically presupposed that symmetrical relationship, and therefore the entire experience of nation-states.
The correspondence between political decision-makers and citizen-voters has certainly ensured a framework of certainty helping constitutional and political theories in connecting democracy with the artificial concept of the nation state. But, although precious for the democratic enterprise, this is an historical contingency, from which it does not follow that that correspondence is something intrinsic to democratic theory or to constitutionalism.
Political accountability reflects instead a normative commitment: the correspondence between the exertion of political power, wherever a ‘political power’ can be recognised as such, and the obligation to account for that exertion towards citizens. The appeal of democratic accountability “is closely related to the appeal of the vision of democratic rule as preserving freedom or preventing domination”J.Dunn, Democracy, globalization and human interests, Il Politico, 1998, 365., to the extent that that meaning of accountability is presupposed. Under this premise, accountability can be referred to any scale of government and even to the market sphere, although finding diverse balancements and adjustments with other principles, such as independence from partisan politics and freedom.
Constitutional theory is here at stake. Abandonment of traditional concepts engenderes uncertainty, but their maintenance prevents us from any understanding of crucial problems which democracy and constitutionalism have to face and of the related theoretical challenges.
5. The very experience of nation states reveals that political accountability of national rulers towards their electorate is no longer the only form of accountability for the exertion of power.
According to the diceyan doctrine of accountability, ministers are accountable to the public, via Parliament, for their own decisions and for the work of their departments, while civil servants are accountable internally to their political chiefs. That doctrine is at odds with the direct accountability of civil servants also for issues of policy, which emerges from the administrative experienceSee P.Barberis, The New Public Management and a new accountability, Public Administration, 1998, 451 ff.; C.Turpin, Ministerial Responsibility: Myth or Reality?, J.Jowell and D.Oliver (eds.), The Changing Constitution, Oxford 1989, Second Edition, 53 ff..
Moreover, in an increasing number of countries, both the search for greater efficiency in the public services and the consideration of users of those services as consumers rather than as citizens press for incentive-based forms of accountability of civil servants, and for a greater financial transparencyR.Myers and R.Lacey, Consumer satisfaction, performance and accountability in the public sector, International Review of Administrative Science, 1996, 331 ff.; G.Arena, La democrazia nell’amministrazione, ovvero l’“utente-sovrano”, in G.Gozzi (a cura di), Democrazia, diritti, costituzione, Bologna 1997, 53 ff..
Finally, the flourishing of independent agencies in many European countries is strictly related with the devolution to these authorities of broad regulative powers. While parliamentary responsibility is correspondingly reduced, agencies face problems of legitimacy and need therefore to balance their own independence with new forms of accountabilityM.Shapiro, The Problems of Independent Agencies in the United States and the European Union, European Law Journal, 1997, 293 ff..
The new paths of accountability appear more or less directly connected with the new tasks of public powers towards markets, and demonstrate that even in nation states the accountability issue is far more complex than that concerning the traditional relationship between representatives and electors. Attempts to oppose on this ground national experiences to global markets and to EU institutional arrangements are therefore ill-founded not only because of the fallacies of the market vs. democracy dicothomy, but also because the accountability issue affects democracy and constitutional law even at the national scaleG.Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, 1998, 15..
On the other hand, decision-making processes of transnational companies and global and regional agencies can be enhanced through incremental adjustments aimed at diffusing accountability and transparence, rather than through imposition of political will.
It is worth mentioning the debate on stakeholding, founded on the premise that decisions of companies concern groups of people other than shareholders (employees, customers, suppliers, creditors)J.Williamson, The Road to Stakeholding, Political Quarterly, 1996, 212.. Once referred to underdeveloped countries, that premise appears in a different light. In those countries, decisions of transnational companies affect the welfare of people more than the policies of the respective governments, thus exerting strong political powers without obligation to account for that exertion. Since this contrasts strikingly with democracy and justice, the “road to stakeholding” should not leave apart this issue.
Another question concerns secrecy, which is an ancient evil ‘naturally’ affecting whoever holds power. One of the main reasons justifying both democracy and constitutional law consists in reducing at least secrecy with respect to public proceduresN.Bobbio, La democrazia e il potere invisibile (1976), in N.Bobbio, Il futuro della democrazia, Torino 1984, 75 ff. . The rise of global agencies and organisations has confirmed the ‘natural’ tendency towards secrecy. A recent example is afforded from the absolute secrecy which has characterized negotiations on Multilateral Agreement on Investment. But it is worth adding that the provisional failure of those negotiations (april 1998) has been partly due to the strong opposition of public opinion movements and of the European Parliament against that proceedingSee M.Esposito, Le regole “discrete” della sovranità economica, Politica del diritto, 1998, 483.. From the perspective here afforded, the increasing role of international non-governmental organisations at the global scale should be encouraged, since it might significantly enhance transparence of the decision-making processes of international and regional agencies, such as WTOC.Bellmann and R.Gerster, Accountability in the World Trade Organization, Journal of World Trade, December 1996, 32 ff..
Finally, after the establishment of WTO and other international cooperation institutions, attention should be required “to the ‘constitution’ of these international institutions, just as extensive attention is given to national level ‘constitutions’”: and this raises typical issues of constitutional law such as preventing abuse of power, channelling important informations to decision-makers, giving constituencies the opportunity to be heard and to have weight or influence on the decision making processesJ.H.Jackson, The World Trade Organization and the ‘Sovereignty’ Question, 186..
A broader participation to WTO legislative process for those affected by trade decisions is sometimes recommended in light of the EU example, which “underscores the importance of political institutions such as the European Commission and the European Parliament in the process of developing socially responsive rules to govern economic and trade obligations”R.Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, Duke Law Journal, March 1995, 922..
This will sound ironical to some European ears. It is time to see whether this irony is justified.
6. Among continental organisations, European Union is unique both for its insisting on territories where nation-states have been historically conceived and founded and for its having displayed the greatest “potential to alter the relative congruence between territory, identity and function which characterized the nation state”B.Laffan, The European Union: a distinctive model of internationalization, Journal of European Public Policy, 1998, 238. See also I-J.Sand, Understanding the New Forms of Governance: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions, in European Law Journal, 1998, 271..
Accordingly, European institutional arrangements are perceived as contrasting with national traditions far more deeply than elsewhere. The fact that, contrary to many European constitutional scholars and courts assumptions, European institutions are sometimes regarded from outside as an example of democratic governance is therefore a seeming paradox.
At any rate, the debate on the European democratic deficit needs to be partly distinguished from that on the European Constitution. While the former deals principally with the distribution of political power among European institutions, presupposing an analogy with national institutional systems, the latter has been proposed in spite of the fact that analogies with constitutional decision-making at the national scale are difficult to sustain. In fact, the thesis that the European Union has already its own ‘Constitution’ relies on other and more substantial meanings of that term, and are often referred to the development of an autonomous legal system, founded on economic and social rights and protected by the European Court of Justice against Member States lawsSee N.MacCormick, Democracy, Subsidiarity, and Citizenship in the ‘European Commonwealth’, Law and Philosophy, 1997, 334, although adding that implementation of European Treaties from Member States has called for debate and decision, frequently constitutional amendments, sometimes referendums, that is, a democratic endorsement of the key doctrines concerning the standing of Community law as a distinct system. .
Those debates are of course mutually connected. But their distinction might disentangle many questions, and is surely requested for the purposes of this contribution. I will indeed refer only to the debate on the democratic deficit, which is more directly related to the accountability issue and to the dicothomy between market and democracy.
According to the democratic deficit thesis, the European system lacks of democracy, since the influence of the Commission and of national governments in the decision making-process still overrides that of Parliament. While popular elections give Parliament the strongest legitimacy among political institutions, powers of the representative body are considered too weak both for what concerns legislative decisions and for its influence over the appointment of the CommissionSee e.g. J.Lodge (ed.), The European Community and the Challenge of Future, Frances Pinter 1989 and H.Schneider, Die Legitimitatkrise der Europaischen Integration, in R.K.Furtak (Hrsg.), Politik un Bildung als Zukunftsgesestaltung, Festschrift fur G.Bals zum 65 Geburstag, Landau, 1994, 221 ff..
The democratic deficit thesis raises objections on this ground, since it does not correspond any more to European institutional arrangements.
From the Single European Act onwards, European Parliament has gradually extended its influence over the European decision-making processesJ.Lodge, The European Parliament, S.S.Andersen and H.A.Eliassen (eds.), The European Union: How Democratic Is It?, London 1996, 187 ff.. Moreover, the Amsterdam Treaty has put the Parliament and the Council on an equal footing in the co-decision procedure introduced by the Maastricht Treaty, and in the meanwhile has extended this procedure to a significant number of new areas. While recognizing that the pillar structure of the Union has been left untouched in Amsterdam, and that Parliament’s role is still subordinate in some important areas, scholars believe that the European institutional system is now close to that of federal systems, in which the legislative power is shared by two branches, representing the population of the Union and its Members, respectivelyR.Dehousse, European Institutional Architecture after Amsterdam: Parliamentary System or Regulatory Structure?, Common Market Law Review, 1998, 606..
Another analogy between the European and the Member States institutional system can be sustained on the ground of the relationships between Parliament and Commission. The Maastricht Treaty had provided for Parliament to be consulted on the choice of the person that national governments intend to appoint as President, and requested a vote of approval from Parliament before the appointment of the whole Commission. The Amsterdam Treaty requires the nomination of the designed President to be approved by the European Parliament, and provides that the Commission shall work “under the political guidance of its President”, thus giving him a clearer authority than in the past over the members of the executive. A further step has thus been made towards those parliamentary models where the head of the executive enjoys a special authority over the cabinetR.Dehousse, European Institutional Architecture, 612..
According to written provisions, then, European institutional arrangements appear far more similar to those of Member States than few years ago. Therefore, the question of whether current democratic standards are satisfied will depend largely on issues such as the effective functioning of institutions, the shifting of national political parties decision-making at the European scale and so on.
But the very premise that European institutions should function as national institutions in order to reach an acceptable democratic standard raises criticism.
The democratic standard requested from the European system is centered on popular legitimacy of political institutions. Popular legitimacy is of course a fundamental requirement for democratic functioning of political institutions, but this diverges from the idea that democracy consists exclusively in representative mandate from the people’s will. This idea is historically rooted in national constitutional traditions of Continental Europe, where all along the XIX century parliaments fought for their primacy, that is, for sovereignty, over constitutional monarchs and their governments. Parliaments won that conflict, and the Constitutions of the following century will sanction their victory.
In light of its historical roots, the democratic deficit thesis is centered on the distribution of power among political institutions, thus leaving aside questions which appear not less crucial for democracy and constitutionalism.
One of these questions regards publicity attaching to deliberations of European institutions, which “is a necessary condition both of answerability and of a proper public discourse on matters of public concern Europe-wide”N.MacCormick, Democracy, subsidiarity, and citizenship, 353-354..
At this respect, the Amsterdam Treaty establishes a right of access to European Parliament, Council and Commission documents, which nonetheless have to be clearly identified, thus enabling European institutions to reject mere requests of information. Furthermore, no reference is made to the proceedings of committees assisting the Commission and the Council, whose importance in the European decision-making process is increasingly aknowledgedR.Dehousse, European institutional architecture, 621..
Traditional constitutional cathegories are again at difficulties with dimensions of markets regulation which are less known and practised at the national than at the European scale.
These dimensions affect both regulations supplementing the prohibitions of restrictions to trade between Member States and “efficiency enhancing policies”, which attempt “to increase the aggregate welfare of society”G.Majone, Europe’s Democracy Deficit, 28.. Unlike the redistributive, these policies are delegated to institutions insulated from the political process, such as the European Central Bank and EC agencies, and rely on non-majoritarian sources of legitimacy, such as expertise, procedural rationality, transparency, accountability by resultsG.Majone, Europe’s Democratic Deficit, 28..
On the other hand, a greater transparency in regulatory decision-making, mainly through the requirement from regulators of giving reasons for their decisions, would enhance their democratic accountability without renouncing to the efficiency goals which regulators are believed to pursue better than elected politiciansG.Majone, Europe’s Democracy Deficit, 20 ff., and A.Kreber, Agencies in the European Community - a step towards administrative integration in Europe, Journal of European Public Policy, 1997, 242..
Notwithstanding its resistance, the paradigm that equates democracy with legitimacy of political institutions fails to give account of the whole accountability issue. Hence derives the suggestion for constitutional scholars to draw attention on questions which appear alien to that paradigm, and inasmuch crucial for the democratic outcomes of the European enterprise.
European institutions have evolved in unpredictable and often sudden manners, rathen than through “a gradual and consensual debate leading to new reforms”. For example, the strong role of the principle of free competition may have been a side-effect of the Court’s early decisions on supremacy and direct effect and later the combination of these decisions with the qualified majority voting of the Council. In the European institutional evolution, “unintended consequences will often arise, but also often be accepted as fait accompli”I-J.Sand, Understanding the New Forms of Governance, 277. . Hayek’s warnings against the perils of constructivist rationalism can therefore be referred to any ‘grand design’ approaches to the European institutional arrangementsN.MacCormick, Democracy, Subsidiarity, and Citizenship, 355. .
While corresponding to the perspective of both market and democracy as imperfect systems, suggestions to achieve democratic improvements through incremental adjustments demonstrate that the European enterprise needs further constitutional understanding and democratic commitment.
Prof. Didier Maus
Université de Paris
35, Rue St. Dominique
 World Fact Book (CIA)]
|