Jean Monnet Center at NYU School of Law


4. The Narrow Constraints of European Governance by Majority Rule

Like the proverbial generals who are always fighting the last war, the White Paper's proposals to "revitalise the Community method" make a lot of sense when hypothetically applied to the problems of the past. Economic integration could, indeed, have been achieved more quickly and more efficiently if the Parliament and the Council had restricted their involvement to the definition of the "essential principles" of legislation proposed by the Commission, if the Council had been ready to "vote as soon as a qualified- majority seems possible rather than pursuing discussions in the search for unanimity" (p. 22), and if the Commission would then have been allowed to define the "technical detail" without being encumbered by Comitology procedures. When applied to, say, the definition of work-safety standards in the Machinery Directive, or of common rules governing the solvability requirements for insurance companies, legitimacy would not have been much of a problem since the common interest of producers and service providers in gaining access to the larger European market would have ensured the acceptance of any reasonable Europe-wide rule even if national industries and their governments might have preferred solutions which differed at the level of "technical detail".

But what if these differences should have had high political salience for national constituencies? Think of recent efforts to reform national pension systems, where even minute technical details could have a significant impact on the life chances of individuals and, hence, were the object of fierce battles among interest groups and political parties, or would even provoke violent protests that could jeopardize a government's survival. If such issues were, indeed, to be settled by the "Community method" and majority rule at European level, the lack of legitimacy could blow the Union apart.

It is worrying that the authors of the White Paper seem to be happily unaware of any legitimacy constraints on European institutions. Thus, they twice assert that their recommendations merely concern the way in which "the Union uses the powers given by its citizens" (p.3, 8), and they are emphatic in postulating that "it is time to recognize that the Union has moved from a diplomatic to a democratic process..." (p. 29). The first of these statements is, of course, not even a self-serving euphemism. It is simply wrong. The powers that the Union is able to exercise were either delegated by the governments of the Member States, or were usurped by the Commission and the Court through interpretations of Treaty provisions which exceeded the original intent of the contracting governments. Whether, and in what way, "citizens" should finally get a say in all this is a question considered with much fear and trepidation (even more so after the Irish referendum) in the opening debate on a European "Constitution". For the time being, at any rate, the powers of the Union rest on intergovernmental agreement and a passive respect for "the law" - neither of which are solid rocks to stand on if European policies should violate intense national preferences.

The same objection would have to be raised against the White Paper's reference to "a democratic process" if that should imply majority rule. Voting by qualified-majority has become a useful device for speeding up Council decisions in constellations where the divergence of policy preferences does not have high political salience in national constituencies. When this is not the case, however, Member State governments have very good practical and normative reasons to invest time and effort in the search for consensual solutions. On practical grounds, the shadow of the future is long, and governments should hesitate before antagonizing others because they may find themselves in the same corner tomorrow. On normative grounds, moreover, legitimate majority rule would presuppose a strong European collective identity, vigorous Europe-wide public debates, and the manifest political accountability of European governors. Even before mentioning the Union after the Eastern enlargement, suffice it to say that none of these preconditions has, as yet been realised in the present European Union. This is not meant to discourage efforts that would gradually create the preconditions of democratic legitimacy and majority rule at European level. For the time being, however, Europe cannot operate as a majoritarian democracy, and European policy must be consensual if it is to be legitimate.




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