BY MATTHIAS KETTEMANN
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Today, after the Czech Republic’s highest court failed to find any grounds on which it was unconstitutional, Czech President Václav Klaus finally signed the Lisbon Treaty . The treaty’s reforms will now enter into force on December 1, 2010. The debate on its contents, however, is far from over. Reacting to my article on the Treaty in the previous issue of the Harvard Law Record, a number of commenters criticized the undemocratic character of the new treaty and argued that it would make the EU less democratic (or, at worst, no more democratic) than it was before. These arguments are misleading: they are based on a wrong conceptual approach to democracy in the EU’s unique post- and transnational context.
Article 2 of the Treaty on European Union as amended by the Treaty of Lisbon emphasizes that the Union is founded “on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (emphasis added). This principle of democracy, which extends its reach vertically (towards Member States) and horizontally (towards EU institutions), is corroborated in the EU’s different codifications of human rights, such as Article 3 of the First Additional Protocol to the European Convention on Human Rights, the common constitutional traditions of Member States, community practice, and the other democratic principles contained in the amended treaty.
Despite this, it is true that the commitment to democracy, which had already been made in Article 6(1) of the Treaty on European Union as it existed prior to Lisbon, has not prevented the emergence of the “democratic deficit”.
But the Lisbon Treaty’s attempts at reform have at least led to a partial mitigation of portions of EU law that create a gap between the expectation of democracy and its fulfillment. Some problems remain, namely the gap between the amended treaty’s Article 9, which enshrines the principle of equality for all EU citizens, and the voting procedures in the Council, which offer less favourable population-to-voting power ratios to citizens of bigger states.
But the Lisbon Treaty truly mitigates the democratic deficit by increasing the legitimacy of European decision-making processes. First, national governments, responsible to national parliaments, are united in the European Council. Second, there are direct lines of legitimacy from the citizen to the European Parliament, though they are not yet widely perceived.
When Article 10 (2) of the Lisbon-amended EU treaty lays down the democratic accountability of heads of state or governments in the European Council and of the governments in the Council to their national parliaments, or to their citizens, it relies on the powers of national parliaments to influence EU decision-making procedures at an early stage by parliamentary control. Using this control more actively will ensure that the lawmaking process will result less clearly in “laws made in Brussels”, but, instead, in legislation that emerges from a process based on a dialogue between the Commission, national parliaments, national governments on both the national and the Union levels, the Council, and, importantly, the European Parliament.
The Lisbon Treaty also bolsters the significance of the national parliaments’ European counterpart. Article 14 (2) of the amended EU treaty states that the European Parliament is composed of “representatives of the Union’s citizens”. This may seem obvious, but it represents a real change: Article 189 of the old EC Treaty still referred to “representatives of the peoples of the States brought together in the Community”. The new “community” is one where the European citizenry may play a direct role, rather than one mediated by the Union’s collection of states.
Beyond institutional reforms, the Lisbon Treaty not only strengthens the representative dimension of democracy, but actively encourages citizen participation: by embracing civil and political rights, and by further integrating civil society and representative associations into the lawmaking process.
Such support will increase the quality of deliberative democracy in Europe, allowing for the creation of a European public discourse. Beyond the treaty’s new legal framework, however, far-reaching structural changes in citizens’ socio-political approaches to European topics and their (under)representation in the media, need to be discussed. This will take years.
Indeed, arguments over the shape of democracy have been a consistent feature of European intellectual history,. It stands to reason that the European Union should be able to shape a new geometry of democracy that fits its current state. A realistic conception of democracy has to be developed for the Union. The multinational model, in which the member states are the (only) relevant actors, seems anchored in the traditional, nation state-oriented model of democracy. It is essential to realize that the transfer of powers to regulatory entities beyond the nation state needs to coincide with new models for the legitimation of their decisions.
A functional model of democratic legitimacy is needed that combines participative, representative and deliberative elements, in a setting where actors can translate needs into political postulates and develop, propose and pass suitable remedies. This model must make it possible to trace back the exercise of this authority directly – and in an uninterrupted chain of legitimation – to the citizens of the European polity, who need to participate, to the greatest extent feasible, in the process of developing laws and norms.
Now that the Lisbon Treaty will enter into force, it is upon the citizens of the European Union to fill the letter of the law with life and to dispel the myth of the democratic deficit.
Matthias C. Kettemann is an LL.M. student from Austria.