EU Constitutional Law 1020 First-Class Answer

Submitted by: Reuben Kane


Assignment Title: Blog: The EU legislative process lacks legitimacy.



Brexit: the escape from ‘unelected bureaucrats’?


A British perspective addressing the misconceptions surrounding Brexit. Is the European Union’s (EU) legislative procedures really as illegitimate as people perceive?

Following the United Kingdom’s (UK) accession to the European Economic Community in 1973, the former EU entity, the popularization of Euro-scepticism ensured that an EU referendum would inevitably occur. The complexity of the EU’s institutions, despite requests for simplification, such as ‘the merging of the position of the President of the Commission…with that of the European Council’ has consequently led to misconceptions developing concerning the EU’s legitimacy.[1]

This accusation of illegitimacy prevailed across the pro-Brexit campaign, directed primarily towards the European Commission. Is Brexit the only solution to escape from these supposedly ‘unelected bureaucrats’, who are alleged to be dominating the EU’s legislative process or is it legitimate enough in its current form?

In order to fathom whether the process truly lacks legitimacy, it is imperative to acknowledge the role of each involved institution.

The Commission’s legislative purpose is arguably where this distrust in the process emanated from as it is compositionally unique compared to the other main relevant institutions, comprising of one Commissioner from each Member State who is not directly or indirectly elected. The Commission initiates the proceedings: ‘Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise’.[2] Essentially the Commission’s function is to ‘act as the Executive of the Union’,[3] by introducing legislation which will require ratification from the European Parliament (EP) and the Council.

The unelected nature of the Commission has been subject to fierce scrutiny, although one must recognise that, ‘Every government has bureaucrats, who are by nature unelected. The EU, with about 33,000 civil servants, is dwarfed by the British government, which employs over 400,000’,[4] indicating the hypocrisy of this criticism which is further diminished by the Commissioner appointment procedure as the EP ultimately influences the Commission’s composition:

‘…the Commission, while not directly elected, is nominated by the heads of government in the European Council and approved by the European Parliament, which must first approve the nominee for president of the Commission and then the remaining 26 nominees en bloc.’[5]

The EP, consisting of 751 officials, is notoriously the most democratic institution as MEPs are voted for directly every five years, by proportional representative methods. After the initiative has been introduced, the EP and the Council, containing governmental ministers whom have been indirectly elected to this position through national elections, carry out their functions unitedly under the ordinary procedure: ‘The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions’.[6]

The legislative function of these institutions is to scrutinise the Commission’s proposals, advocating for necessary amendments, albeit they both lack the ability to introduce legislation themselves. Since the EP’s creation it has progressively gained more prominence, developing into an influential institution, apparent through the Lisbon Treaty provisions which ‘enhanced the EP’s role as legislator. The co-decision procedure, where a proposal needs to be approved by both the EP and the Council, became the ordinary legislative procedure’.[7] This signifies the legitimacy of the process as the directly and indirectly elected bodies, the EP and the Council respectively, have to provide their permission before proposals can be implemented, prohibiting the Commission from dictatorially controlling, illustrating legitimacy in practise.

National parliaments also possess a safeguard through the early warning mechanism implemented by Protocol Two of the Lisbon Treaty, forming a ‘virtual third chamber’,[8] empowering them to publicly oppose draft proposals through the usage of the ‘yellow card’ procedure meaning that ‘when reasoned opinions represent at least one third of all the votes allocated to the national parliaments, the Commission must review its proposal’, lowered further for matters concerning ‘justice, freedom and security’. [9] This has been triggered effectively three times with an orange card procedure co-existing, albeit has never been utilised but was nevertheless advancement towards a more legitimate EU.

The EP only became directly elected in 1979, and since then the average electoral turnout has been on a consistent decline, beginning at 61.99% to 42.61% by 2014, with an increment in 2019. The UK has never reached 40% at one single EP election, obtaining only 24% turnout in 1999.[10] Perhaps this sense of perceived illegitimacy can be attributed to miseducation and an unwillingness to be informed due to the societal differences cemented between the Member States and as Anand Menon, ‘an EU expert at King’s College in London, puts it, the system relies on “indirect elections via a demos that doesn’t exist”’.[11] Furthermore, in a Eurobarometer survey of 2013, ‘47 percent of the citizens who consider themselves knowledgeable about how the EU works tend to trust it, while only 27 percent of those who do not consider themselves knowledgeable about the EU do’, [12] demonstrating the correlation between understanding and support.

One must appreciate that no political system is perfect and whilst a ‘democratic deficit’ may exist within the EU, the legislative process is more legitimate than many comprehend.

Bibliography

Primary Sources:

1. Consolidated Version of the Treaty on the European Union [2008].

Secondary Sources:

1. Dimiter Toshkov, ‘Why it’s not so simple to make the EU simpler’ (LSE Blogs, 18 October 2017) <https://blogs.lse.ac.uk/europpblog/2017/10/18/why-its-not-so-simple-to-make-the-eu-simpler/> accessed 19th November 2019.

2. European Commission, ‘Subsidiarity Control Mechanism’ <https://ec.europa.eu/info/law/law-making-process/adopting-eu-law/relations-national-parliaments/subsidiarity-control-mechanism_en#annual-reports> accessed 20 November 2019.

3. EPRSauthor, ‘In Focus – The European Parliament Has More Power’ (EPRS Blog, 17 March 2014) <https://epthinktank.eu/2014/03/17/in-focus-the-european-parliament-has-more-power/> accessed 20 November 2019.

4. I. Cooper, ‘A “Virtual Third Chamber” for the European Union? National Parliaments after the Treaty of Lisbon’ (2012) 35 WEP 441.

5. Sonia-Morano Foadi & Jen Neller, Fairhurst’s Law of the European Union (12th Edition, 2018) 57.

6. Tom Ward, ‘The European Union: A Crisis of Legitimacy?’ (2010) 9(1) Sage Journals <https://journals.sagepub.com/doi/full/10.1007/s12290-010-0124-4> accessed 19 November 2019.

7. UK Political Info, ‘European Parliament Election turnout 1979-2019’ <http://www.ukpolitical.info/european-parliament-election-turnout.htm> accessed 20 November 2019.

8. ‘Does it make sense to refer to EU officials as “unelected bureaucrats”?’ The Economist (14th July 2017)<https://www.economist.com/the-economist-explains/2017/07/14/does-it-make-sense-to-refer-to-eu-officials-as-unelected-bureaucrats> accessed 15th November 2019.

[1] Dimiter Toshkov, ‘Why it’s not so simple to make the EU simpler’ (LSE Blogs, 18 October 2017) <https://blogs.lse.ac.uk/europpblog/2017/10/18/why-its-not-so-simple-to-make-the-eu-simpler/> accessed 19th November 2019. [2] Consolidated Version of the Treaty on European Union [2008] OJ C115/25. [3] Sonia-Morano Foadi & Jen Neller, Fairhurst’s Law of the European Union (12th Edition, 2018) 57. [4]Does it make sense to refer to EU officials as “unelected bureaucrats”?’ The Economist (14th July 2017) <https://www.economist.com/the-economist-explains/2017/07/14/does-it-make-sense-to-refer-to-eu-officials-as-unelected-bureaucrats> accessed 15th November 2019. [5] Tom Ward, ‘The European Union: A Crisis of Legitimacy?’ (2010) 9(1) Sage Journals <https://journals.sagepub.com/doi/full/10.1007/s12290-010-0124-4> accessed 19 November 2019. [6] Consolidated Version of the Treaty on European Union [2008] OJ C115/22. [7] EPRSauthor, ‘In Focus – The European Parliament Has More Power’ (EPRS Blog, 17 March 2014) <https://epthinktank.eu/2014/03/17/in-focus-the-european-parliament-has-more-power/> accessed 20 November 2019. [8] I. Cooper, ‘A “Virtual Third Chamber” for the European Union? National Parliaments after the Treaty of Lisbon’ (2012) 35 WEP 441. [9] European Commission, ‘Subsidiarity Control Mechanism’ <https://ec.europa.eu/info/law/law-making-process/adopting-eu-law/relations-national-parliaments/subsidiarity-control-mechanism_en#annual-reports> accessed 20 November 2019. [10] UK Political Info, ‘European Parliament Election turnout 1979-2019’ <http://www.ukpolitical.info/european-parliament-election-turnout.htm> accessed 20 November 2019. [11] The Economist (n 4). [12] Toshkov (n 1).