Jean Monnet Center at NYU School of Law


Indirect legitimation

So far, twelve independent agencies have been created in the EU and the White Paper opts for more. This is so because they help the Commission in economising and in focusing on core tasks. In addition: "The creation of further EU regulatory agencies in clearly defined areas will improve the way rules are applied and enforced across the Union." (p.23) Furthermore, the inclusion of civil society organisations and the weight placed on transparency procedures are intended to increase the public awareness of the EU. It is a means to make visible who is participating and who is heard. This comes in addition to other measures to enhance coherence and openness. Keywords are the open method of co-ordination, working with key networks, and the simplification of Community law. The open method of co-ordination is especially interesting, as it entails a process of mutual adjustment and learning which allows for divergences to be spelled out and for the Member States to find their own way.5 According to the Council the open method ensures consensus through the four following elements:

It is a complement to ordinary legislation - the Community method - and "is used on a case by case basis. It is a way of encouraging co-operation, the exchange of best practice and agreeing common targets and guidelines for Member States, sometimes backed up by national action plans, as in the case of employment and social exclusion" (p.21) In many fields, such a method could add value by reducing the Commission to an information provider and supervisor of the process, and opening up for the Member States to compare their efforts and adjust their aspirations through benchmarking information and peer review. However, it is given a somewhat restricted role - "it should not be used when legislative action under the Community method is possible" and should not "upset the institutional balance, nor dilute the achievement of common objectives.." (p.22).

Now, well-intended and well-thought as many of the White Paper's proposals to make more effective and relevant policies may be, one may ask how much they contribute to increase the accountability of the executive branch to the elected legislatures and to open up the decision-making process of the EU. Will they enable more citizens to participate on an equal basis in the decisions that affect them at European level? Are the proposed changes really contributing to democratic governance?

The focus on governance, problem-solving, flexibility and reinforced co-operation derive, in legitimacy terms, from an intergovernmental view of the EU. The proposals presuppose a mode of indirect legitimation, i.e., the EU derives its legitimacy from the legality and legitimacy of the governmental system of the Member States. They wrongly convey the impression that the EU is in the hands of the Member States and that it is basically the Member States which provide for democracy. Governance measures for enhancing accountability, visibility and transparency provide an extra, additional layer of democratic legitimacy. As I will discuss below, the electoral authorisation of ministers at national level, and their accountability to their national parliaments does not suffice to provide for democratic legitimacy at EU level. Neither is the incorporation of interest groups and non-profit organisations in co-operative and consultative bodies. In such settings, actors are heard and may voice criticism, but there is no chance of equal access and popular control. The citizens lack the instruments of power to force decision-makers to look after their interests. The inhabitants are merely the subjects (or subordinates - "Untertanen") of power, not the holders of power themselves - they are not empowered to authorise or instruct their rulers. The ultimate instruments of control do not rest with the people but with the decision-makers.

The proposed mechanisms may enhance the effectiveness and efficiency of the decision-making system and help in targeting the policies. However, they do not necessarily contribute to close the legitimacy gap of the system. The real problem of democratic legitimacy lingers. Legitimacy is the second crucial criterion to be met for a political system to be recognised as valid, legitimacy and efficiency being albeit essentially interdependent and intertwined. Even an optimal decision may be opposed to if it has not been made in a procedurally correct manner, and, similarly and simultaneously, even good procedures are worthless unless they also produce good and timely decisions. This implies that the institutional reforms of the EU should be tested both with regard to their legitimacy and their functional salience. The White Paper is mostly about the latter.

5 The term stems from the Lisbon European Council and draw on supply-sided economics. "The emphasis is on consensus-forming with three elements found in each process: common assessment of the economic situation; agreement on the appropriate economic policy responses; and acceptance of peer pressure and, when necessary, adjustment of the policies being pursued." (Hodson and Maher 2001:723)




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