Democracy and Rule‐making Within the EC: An Empirical and Normative Assessment

• DOI: http://doi.org/10.1111/1468-0386.00023
• Date: 01 June 1997
• Author: P. P. Craig
• Published date: 01 June 1997

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Democracy and Rule-making Within the EC:

An Empirical and Normative Assessment

P. P. Craig*

Abstract: The object of this article is to consider the democratic legitimacy of the

structure of legislative authority which exists within the EC. The analysis draws upon

the work of Joseph Weiler, and accepts that different conceptions of democracy may

best explain different aspects of the Community. The present article addresses only

what Joseph Weiler terms the supranational aspects of the Community and suggests

that a republican model of democracy can help us to understand the division of

competence in this area. While changes can undoubtedly be made which will improve

the operation of democracy within this sphere of the Community, and such changes are

suggested in the subsequent analysis, it is argued that the republican model provides a

sound basis on which to build.

I Introduction

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.

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

1

: 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 paper accepts this tripartite division. The first and third of these models

European Law Journal, Vol. 3, No. 2, June 1997, pp. 105–130

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* Professor of Law, Worcester College, Oxford. I am grateful for the helpful comments of Grainne de

Burca, Carol Harlow, Joseph Weiler 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.

1

Weiler with Haltern and Mayer, ‘European Democracy and Its Critique’ (1995) 4 West European Politics

24–33.

are explored by Weiler in some detail, the second is mentioned more briefly. The

following 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 Inter-

governmental Conference. Time will tell what changes, if any, are made to the

Community’s legislative process by this IGC. 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 com-

mentator 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

European Law Journal Volume 3

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