Prospects and Limits of Democratic Governance in the EU

• Date: 01 January 2011
• Published date: 01 January 2011
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00538.x
• Author: Stephan Bredt

eulj_53835..65

Prospects and Limits of Democratic

Governance in the EU

Stephan Bredt*

Abstract: The EU Treaty contains for the first time a title on democratic principles. These

provisions emphasise the importance of national parliaments and the EU parliament for

the democratic legitimacy of the EU. The new chapter on democratic principles does not

address the central challenge of the EU polity to the traditional understanding of demo-

cratic legitimacy, the disjunction of political and economic governance as expressed by the

important role of independent institutions like the Commission, the European Central

Bank and agencies in EU governance . This is a consequence of the fact that the status of

independent regulatory institutions in a democratic polity has not been clarified—neither

in the EU nor in the Member States. However, such independent institutions exist in

diverse forms in several Member States and could hence be understood as a principle of

democratic governance common to the Member States. Such an understanding has not yet

evolved. The central theoretical problem is that regulatory theories which explain the

legitimacy of independent institutions as an alternative to traditional representation

remain outside the methodology of traditional democratic theory. Economic constitutional

theory, based on social contract theory and widely neglected in the legal constitutional

debate, offers a methodological approach to understanding independent regulatory insti-

tutions as part of representative democratic governance.

I Introduction

The Treaty on European Union (TEU) and the Treaty on the Functioning of the

EU (TFEU)1have established the next step in the evolution of European governance.2

They contain the latest concept of democratic governance developed for the EU.

Concerning the principles of democratic governance, the two treaties are composed

mainly on grounds of the proposals of the Treaty establishing a Constitution for

Europe (the Constitutional Treaty).3The Intergovernmental Conference, establishing

* Legal Counsel in the Department for Regulatory, Cartel and Competition Law of Deutsche Bahn AG,

Berlin.

1Treaty on European Union [2008] OJ C115/13 and Treaty on the Functioning of the European Union

[2008] OJ C115/47.

2The term ‘governance’ is used here to describe the EU polity. For the origin and other correlated

meanings of governance, see C. Möllers, ‘European Governance: Meaning and Value of a Concept’,

(2006) 43 Common Market Law Review 314.

3The text and an overview on the treaty establishing a constitution for Europe is available at http://

en.wikisource.org/wiki/Treaty_establishing_a_Constitution_for_Europe.

European Law Journal, Vol. 17, No. 1, January 2011, pp. 35–65.

© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

the Constitutional Treaty, conceived it as a decisive step in the development of demo-

cratic governance in the EU. It comprised an own chapter dealing with the ‘democratic

life’ of the Union and describing more precisely its democratic character. The central

stipulations of this chapter in the Constitutional Treaty were taken over in the Reform

Treaty4and have become a part of the Treaty on European Union. In the preceding

treaties, democracy was only one of several principles the EU was built on (Article 6

EU). The original Treaty of Rome did not even mention it. The new Title II on

‘provisions of democratic principles’ is hence also a result of the long standing ‘demo-

cratic deficit’ and ‘governance’ debates.

The stipulations of Title II of the TEU express the concept or an ideal of democratic

governance for the EU. The question to be examined here is: do these stipulations on

democratic governance in the EU comprise new developments or new expressions of

democracy? Do they maybe even contain first elements of what Robert Dahl called the

third transformation of democracy and could hence serve as a guideline for the future

development of the EU?5The central aspect to be analysed in this article is whether and

how the new stipulations in the TEU deal with the relation of institutions of majori-

tarian decision making as embodied in the Parliament and the Council and non-

majoritarian institutions such as the Commission, the European Central Bank (ECB)

and the EU agencies. More specifically, the aim of the article is to analyse whether such

non-majoritarian institutions that characterise the EU polity besides the majoritarian

institutions, are part of an evolving understanding of a European democracy.

To answer these questions, the following issues will be dealt with. First (section II),

the stipulations of Title II of the TEU and hence the concept of democratic governance

comprised within them will be examined. As these stipulations of democratic gover-

nance do not contain explanations on independent institutions like the Commission,

the ECB or agencies that also characterise EU governance, the theoretical basis for the

role and democratic legitimacy of such independent institutions will be analysed in a

second step (section III). Thereby (section IV), it will be examined whether independent

(administrative) institutions are a new development on the European level or if the

existence of such institutions could be understood as an administrative and constitu-

tional tradition common to the Member States. Finally (section V), it will be examined

whether and how the theoretical explanations of such institutions found in the previous

analysis could be complemented by the theory of economic constitutionalism and

functionalist integration theory.

II Democratic Governance in the New Treaty on European Union

A Analysis of the Stipulations of Title II TEU

Title II of the new EU Treaty comprises four Articles (Articles 9–12) on the principle

of democratic governance. Besides these principal stipulations, protocols 1 and 2

contain regulations on the participation of national parliaments in EU decision

making. In the following, the analysis is concentrated on the regulation of Title II of the

4Arts I-45–I-47 of the Constitutional Treaty have been taken over in Arts 8–8b of the Reform Treaty and

been amended by Art 8c which elaborates on the role of national parliaments; see Treaty of Lisbon [2007]

OJ C306/14.

5The first being the creation of the Greek city states, the second being the creation of representative

government in the European nation states in the eighteenth and nineteenth century.

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