Jean Monnet Center at NYU School of Law




There is a considerable body of literature, growing by the day, on the nature of the Community, how it has evolved, and its future direction. Political scientists, lawyers, economists and those versed in international relations have all made contributions to this debate. Joseph Weiler's essay in this volume exemplifies the range, difficulty and importance of the issues which are being addressed.

Notwithstanding this wealth of literature, there have been fewer inquiries directly into the structure of legislative authority within the EC itself, which combine both an empirical assessment of that division of authority, and a normative justificatory framework. That is the object of the ensuing analysis. Both aspects of the inquiry are equally important if the conclusions are to carry conviction.

The precise focus of this analysis should be understood at the outset. Joseph Weiler has advanced the thesis that there may be different models of democracy which best capture different aspects of the operation of the EU:[2] the international facets may best be explained through a consociational model, the supranational aspects of Community governance through some version of Schumpeterian elite democracy or pluralist democracy, and the infranational elements through a neo-corporatist model. The present chapter accepts this tripartite division. The first and third of these models are explored by Weiler in some detail, the second is mentioned only very briefly. The present discussion addresses only the supranational aspects of the Community, which covers the basic structure of political authority and the making of primary laws within the EC itself, and suggests a normative model of democracy which best fits the empirical data. This model is, as will be seen, different from that posited by Weiler, although it does in fact fit well within the overall thesis for which he argues.

The first part of the argument will consider the structure of legislative authority in the EC as it is likely to evolve in the light of the discussions at the present IGC. Time will tell what changes, if any, are made to the Community's legislative process by this Intergovernmental Conference. The reports of the major institutions prepared for the IGC, and that of the Reflection Group itself, do, however, provide a fairly clear indication of the developments which can be expected. It will be argued that we can draw out of these documents four major points which are of importance for the future division of authority in the Community's legislative process.

When we consider the difficult questions concerning democracy and legitimacy within the EU there is, of course, no reason why we should be wholly confined by the views of the institutions themselves or those of the Reflection Group. Any commentator can always reject the premises and/or the conclusions which underpin these documents and present instead a different structure which, in their view, captures a more desirable form of democratic ordering for the Community. Such theorising is both valuable and useful. Such an approach will, however, not be employed here for both empirical and normative reasons.

In empirical terms, if we are concerned with problems concerning democracy and legitimacy within the EU then we must take account of the probable developments in this area, and the Reports to be discussed provide important evidence as to the likely direction of institutional reform. This does not mean an uncritical acceptance of any of the probable outcomes of the 1996 IGC. It does mean that the future shape of the Community/Union will be strongly influenced, as it has been in the past, by political considerations which we ignore at our peril. One may well reach the conclusion that the likely shape of institutional competence post the 1996 IGC still leaves much to be desired. This is not, however, a reason to place one's head in the sand and ignore important empirical evidence as to how the Community is likely to evolve over the next few years.

In normative terms, it is not possible to reach conclusions as to how far we need to supplement the legislative process with other tools for enhancing democracy and legitimacy within the Community without having some fairly detailed idea as to the probable future structure of those very procedures themselves. Thus, as we shall see in more detail below, the place of participation rights, and the meaning to be accorded to ideas such as transparency, are intimately connected to the way in which the primary legislative process itself actually operates.

The second part of the argument will present a normative justification for the division of power within the EC in the light of the empirical data. The essence of this thesis can be presented as follows. For some the operation of the EC is best explained against the backdrop of an elitist theory of democracy. While it can be accepted that there are aspects of the EC which are elitist it will also be argued that many elements of the Community do not, and have never, fitted such a model, and moreover that it does not provide a fitting foundation for a European conception of the demos. It will be argued that a republican model of political authority can, by way of contrast, both fit the empirical data and also provide a more attractive normative foundation for the EC than other suggestions which have been made. It should be stressed at the outset that this democratic model has deep roots within European intellectual history, and, as will be seen, it provides the foundation for an important strain of more modern European intellectual thought.

[1] Professor of Law, Worcester College, Oxford. I am grateful for the helpful comments of Grainne de Burca, Carol Harlow, and the participants at the 1996 Hart Workshop on Lawmaking In the European Union. The proceedings of this Workshop will be published in a book.

[2] Weiler with Haltern and Mayer, "European Democracy and Its Critique" (1995) West European Politics 4, 24-33.




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