Democracy and legitimacy of rights-based review

The relationship between fundamental rights and democracy can either be described as instrumental or intrinsic depending on whether democracy is instrumental for the protection of human rights. It is intrinsic if human rights and democracy are closely inter-dependent. In fact both options are possible.³⁴⁵ Democracy is the rule of the people without doubt. What form democracy may take in particular time and space is another issue. The most fundamental feature of democracy is the access of an individual to a decision-making process at different levels of society. In liberal democracies, the most important aspect of individual access is the right to cast a ballot in elections.

Further, the right for political activity and the right to run for political position are significant in this respect. These rights are secured by legal rules. These legal rules on governance form a considerable part of the legal notion of democracy. As is the case concerning government, broadly taken, at a state level these legal provisions can be found at the highest level of legal norms – usually at the constitutional level. We should, however, see that democracy is an ambiguous and essentially controversial concept. Furthermore, the conceptions of democracy in the political theory are different from democracy standards intrinsic to positive law.³⁴⁶ We should not restrict ourselves to

344 I do not see a reason for limiting the Court’s interpretation to substantive fundamental rights and not to understand constitutional traditions in a wider sense.

345 Besson Samantha: Das Menschenrecht auf Demokratie - Eine moralische Verteidigung mit einer rechtlichen Nuance. In Haller Gret, Günther Klaus, Neumann Ulfrid (Hg.): Menschenrechte und Volkssouveränität in Europa. Gerichte als Vormunde der Demokratie? Campus Verlag GmbH. Frankfurt am Main 2011, p. 73.

346 Jääskinen Niilo: Eurooppalaistuvan oikeuden oikeusteoreettisia ongelmia. Helsinki 2008, p. 133.

analysing the concept of democracy purely through the prism of the formalistic theory of law. Democracy also includes the realization of the rule of law and respect for fundamental rights, and it cannot function without the rule of law which aims at safeguarding that preconditions for democratic government are fulfilled. Additionally, fundamental rights can well be considered to fall within the essence of democracy.

If we further think about democracy within the EU framework, we may discuss the very foundations of the division of competence between the Union and the Member States. It is not necessary to deal with such questions as Kompetenz-Kompetenz, but only to refer to one particular case of the German Constitutional Court, namely the so-called Maastricht Urteil.³⁴⁷ In this case, the Constitutional Court ruled that it was within its jurisdiction to review the actions of the EU institutions in order to ensure that they remain within the limits of their competence. According to the Karlsruhe Court, it was required to guarantee the protection of fundamental rights of the German citizens. The question of who is the ultimate authority, the final enforcer of law in Europe, remains unsettled, as does the question of democracy.

The Anglo-American concept the rule of ‘law’ has often been used as a synonymy of the continental concept of ‘Rechtsstaat’. Both these concepts express the idea of justness in a modern state.³⁴⁸ Although these concepts may have different emphases for constitutional and historical reasons, they basically mean the same thing. The notion of the rule of law includes the principles of justness, legality, legal certainty, respect for fundamental rights and even democracy. The rule of law should thus be construed in a broad sense. ³⁴⁹

As Ely puts it “Thus the central function, and it is at the same time the central problem, of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people’s elected representatives that they cannot govern as they’d like.”³⁵⁰ In the same vein, Ely also discusses the issue that in practice a lot of power in the legislature has been vested on unelected administrators.³⁵¹ Ely finds that in a representative democracy, value determinations are to be made by elected representativeness and if the people disapprove them they can be voted out of office. For Ely, appointed judges are comparative outsiders in the governmental system and need to worry about continuance in office only very obliquely. This does not necessarily put them in a special position with regard to value determinations,

347 Brunner v. Maastricht Vertrag, BVerfGE 89 (1993). On the issue of competence-competence see also the so-called cases Solange I 37 BVerfGE 271 (1974) and Solange II 73 BVerfGE 339 (1986).

348 Hallberg Pekka: The Rule of Law. Edita. Helsinki 2004. p. 13. I believe that probably the biggest difference between for example the British and German understanding of the two concepts is the stronger attachment of the German perception to the Constitution, die Verfassung.

349 The rule of law hence touches upon some very comprehensive legal principles. According to Hallberg there are fundamental elements of the rule of law which are legality, separation of powers, the protection of fundamental rights and the rule of law as a functional entity. Ibid., pp. 70-90.

350 Ely John Hart: Democracy and Distrust. A Theory of Judicial Review. Harvard University Press.

Cambridge, Massachusetts 1980. pp, 4.-5.

351 Ibid., p. 131. For Ely the crucial issue is that these administrators are neither elected or re-elected and are controlled only spasmodically by officials who are.

but rather puts them in a position to objectively assess claims “that either by clogging the channels of change or by acting as accessories to majority tyranny, our elected representatives in fact are not representing the interests of those whom the system presupposes they are”.³⁵²

If we place the EU institutions against a backdrop of representative democracy, it is quite obvious that the democratic legitimacy is somewhat hollow in one sense or another. This goes back to the system of checks and balances that is different from national level constitutional arrangements. This is also because of the lack of a truly European demos to which the democratic legitimacy of the institutions could be returned to. The most visible feature of representative democracy is anchored to the system of democratic elections through which the will of the people will be expressed. In the context of the EU, we can identify two kinds of representative democracy that can be considered either as direct or indirect when seen from the EU angle. Both of these models have their pros and cons in terms of democratic involvement.

The EP, despite its apparently feeble link to the local level, is a representative body whose democratic legitimacy at the EU level springs from direct elections although different election systems are applied depending on the political system of the Member State. Thus, emphasis should be placed on the words at the EU level.

EU Member States’ governments can be regarded at the EU level as indirect, although they are directly elected. The Member States’ governments carry out their political tasks and functions under the supervision of national parliaments in the spirit of parliamentarism, but the will of the people comes to the EU level only indirectly, through the Council. In spite of this, the government of a given Member State is more closely tied to the will of the local people than the EP for many obvious reasons. Nonetheless, this does not erase the fact that the most advanced attempt at the EU level to incorporate the direct will of the people to the decision-making process is the EP. This raises the topic of the role of national parliaments.³⁵³ The Lisbon Treaty introduced elements to the primary EU law that clearly reinforce the possibilities of national parliaments to obtain information on topical EU issues, if this does not already happen through the Member States governments. The Treaty also strengthens the possibilities of national parliaments to have their voice to be heard directly.³⁵⁴ This is a remarkable improvement in linking national parliaments, the true local level element engaging the people, with the EU policy and legislative processes. Nonetheless, the shortcoming here is the

352 Ibid., p. 103.

353 Traditionally, national parliaments have often been described as the loser of the European integration process as a consequence of transfer of legislative power from the national to the EU level and simultaneously from parliaments to the Member State governments. Auel Katrin: The Europeanisation Parliamentary democracy. In Auel Katrin and Benz Arthur (Eds.): The Europeanisation of Parliamentary Democracy. Routledge. New York 2006, p. 5.

354 For recent high-quality discussion on the role of national parliaments in the EU policy-making see a joint paper by leading think-tanks on EU policy: Legitimising EU Policymaking. What role for national parliaments? Prepared by Stratulat Corina, Emmanouilidis Janis A, European Policy Centre (EPC), Fischer Thomas, Bertelsmann Stiftung and Piedrafita Sonia, Centre for European Policy Studies

(CEPS). 2014. Available at http://www.epc.eu/documents/uploads/pub_4101_legitimising_eu_policymaking.pdf. Visited on

20.2.2014.

rather scarce powers of national parliaments to provide effective inputs to the legislative process, although advancements are being made in a positive direction. Finally, let us turn to the Commission that, of all the EU institutions involved in the legislative process, has the weakest tie-in to the democracy.

This is not, however, non-existent and during the last decades also democratic elements of the Commission have been strengthened, particularly due to the fact that it is politically responsible to the EP. The Commission can thus be considered to have a double legitimacy.³⁵⁵

Graph 7. Institutions and bodies involved in the ex ante review of fundamental rights in the EU legislative process. Interface of objectivity and democratic legitimacy.

High CJEU

Neutrality and objectivity in fundamental rights review

Cion National systems

Council EP

Low High Democratic legitimacy

Graph 7 illustrates the interrelationship between neutrality and objectivity, vis-à-vis democratic legitimacy when it comes to different actors involved in control of fundamental rights. All these bodies, except the CJEU, are involved in the legislative process and the related ex ante review. As can be seen in the figure in the case of the EP, it may be that a high democratic legitimacy may not be a silver bullet in securing compliance with fundamental rights in the legislative process.

355 Firstly, there is the responsibility to the EP that finds its concrete form when nominating the new Commission. On the other hand, the EP can force the Commission to resign. Secondly, the Commissioners are nominated by the Member States governments and therefore the political situation of the particular EU Member State is reflected in this selection process. The link to democracy is, however, extremely thin and in practice Member State governments have free hands to propose the candidate for the position “of the Member State’s” commissioner.

It is also important to introduce a certain kind of system of judicial checks and balances with the development of ex ante review in all the key institutions, namely the Commission, the Council and the EP. Eventually, improving the quality of legal texts and contributing to the fulfillment of this objective already in the preparatory phase, is in the interests of legal certainty and thus the interest of an individual. The current situation in which the EP is involved in the ordinary legislative process and the CJEU in enforcement enhances the system of checks and balances in the EU.³⁵⁶ Furthermore, according to van Gerven each of these institutions monitors the others to ensure that they do not impinge on its powers and may bring the respective case to the CJEU.³⁵⁷ This is increasingly the normal way of doing business, also within the sphere of AFSJ. If we consider the internal dynamism of the EP in fundamental rights issues, we can note that there seems to be an internal shift in interest from external or international fundamental rights issues to internal fundamental rights issues that form the hard core of EU legislation. This trend is probably unavoidable and it also greatly contributes to the EU competence in external fundamental rights issues.³⁵⁸

A certain kind of logic of complementarity justifies the legitimacy of the EU by pointing to the systematic differences between European and national institutions arguing that their specific capacities supplement each other in an effective way. For example, the Commission, which is independent from electoral pressures, can act in general interest.³⁵⁹ In the EU, there is in fact no way of throwing the government out. Dismissing the Commission by the Parliament cannot be considered as its equivalent.³⁶⁰ This is a clear gap, because citizens should always have the possibility to “throw the scoundrels out”. It has been a clear objective to link the Commission’s appointment to more democratic and open procedures. This has found its expression especially in terms of the role of the EP. The Santer Commission had to resign in 1999 due to withdrawal of the EP’s support from the Commission.

Furthermore, the EP has exercised democratic control when appointing the Commission. This has happened, for example, in the form of hearings in the EP and in some cases the Commissioner-to-be has been forced to change the foreseen portfolios or even to withdraw.³⁶¹

356 See Lenaerts Koen and Cambien Nathan: The Democratic Legitimacy of the EU after the Treaty of Lisbon. In Wouters Jan, Verhey Luc and Kiiver Philipp (Eds.): European Constitutionalism beyond Lisbon. Intersentia. Antwerpen 2009, p. 199.

357 Van Gerven Walther: Wanted: More Democratic Legitimacy for the European Union. Some Suppositions, Propositions, Tests and observations in light of the Fate of the European Constitution. In Wouters Jan, Verhey Luc and Kiiver Philipp (Eds.): European Constitutionalism beyond Lisbon.

Intersentia. Antwerpen 2009, p. 156.

358 See case C-22/70 Commission v Council (ERTA).

359 Hurrelmann Achim: Multilevel Legitimacy: Conceptualizing Legitimacy Relationships between the EU and National Democracies. In Democratic Dilemmas of Multilevel Governance. Legitimacy, Representation and Accountability in the European Union. DeBardeleben Joan and Hurrelmann Achim (Eds.): Democratic Dilemmas of Multilevel Governance. Legitimacy, Representation and Accountability in the European Union. Palgrave MacMillan. Basingstoke 2007, p. 24.

360 Weiler J.H.H.: Why should Europe be a Democracy: The Corruption of Political Culture and the Principle of Toleration. In Snyder Francis: The Europeanisation of Law. Hart Publishing. Oxford 2000, p. 215.

361 With these examples I refer particularly to cases of László Kovács, Rocco Buttiglione and most recently Alenka Bratusek.

Verhoeven takes up the interrelationship between the Commission and the EP as the one ensuring the accountability and political responsibility of the Commission. Furthermore, she sees the national parliaments’ role mainly in the democratic control of the Council.³⁶² This is in many respects true, just to start with the nomination of the Commission and the key position of the EP in this process. We should not however forget that the Lisbon Treaty has moved the accountability of the Commission also towards the scrutiny of national parliaments. If one important goal with the Treaty amendment is to reinforce the role of the national parliaments, generally one concrete example of the increased role of national parliaments in controlling the Commission is the possibility to “show the Commission a yellow card” for not complying with subsidiarity principle in draft legislative acts.³⁶³ Already in the context of the wrecked Constitutional Treaty Walker drew attention to the fuller operationalization of subsidiarity through the early involvement and the monitoring function of national parliaments in the law-making process and the effect of the EUCFR in this.³⁶⁴ The focus on controlling the Commission through the EP has likely been focused on for too long. Even though examples exist of the control exercised by the EP, such as demission of the Santer Commission, the real added value in providing democratic down-to-earth control could be found in national parliaments that clearly are placed both physically and mentally closer to ordinary citizens. This new control function of the national parliaments is interesting and important, and this kind of approach could provide a partial remedy to the democracy deficit.³⁶⁵

For the use of this new yellow card procedure, for the reasons of subsidiarity for example, Wyatt has argued that a sufficient amount of yellow cards by national Parliaments – if neglected by the Commission – could initiate a process of the CJEU to request the Commission to demonstrate that the national Parliaments had made an error of appraisal in objecting the draft act on subsidiarity grounds.³⁶⁶ In this case, yellow cards meeting the threshold would function as procedural requirement to review the validity of act. For the role of national parliaments in the control of subsidiarity in the legislative process we can at least say that it has brought transparency to the legislative process. Discussions on subsidiarity often take place in very early phases of the legislative process and opinions of legal services of EU institutions have been

362 Verhoeven, p. 238.

363 See Protocol No 2 of the TFEU on the application of the principles of subsidiarity and proportionality. Pursuant to Article 6 of the protocol “any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers”.

364 See Walker Neil: The Migration of Constitutional Ideas and the Migration of the Constitutional Idea: The Case of the EU. EUI Working Paper LAW, No 2005/04. Department of Law. European University Institute. Florence 2005, p. 14.

365 It is interesting to note that nowadays the EP has often called for a pragmatic strategy in functional co-operation with national parliaments. Neunreither Karl-Heinz: The European Parliament and National Parliaments: Conflict or co-operation? In Auel Katrin and Benz Arthur (Eds.): The Europeanisation of Parliamentary Democracy. Routledge. New York 2006, p. 165.

366 Wyatt Derrick: Is the European Union an Organisation of Limited Powers? In Arnull Anthony, Barnard Catherine, Dougan Michael, Spaventa Eleanor (Eds.): A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood. Hart Publishing. Oxford and Portland, Oregon 2011, p. 22.

criticized for limited access of the public and for being dealt with behind the closed doors. Opening control of subsidiarity to the national parliaments means also opening the processes and contents to a greater extent to the public. The crucial issue to be solved is the question of subsidiarity as the law-making process raises the issue of democratic accountability and regulation at different levels of the EU.³⁶⁷ A good step forward was taken in the Lisbon Treaty with the introduction of the above-mentioned yellow card procedure that strengthens the democratic surveillance in the legislative phase at exactly the right level, the national Parliaments to which EU citizens feel most attached and find the expression of their will more closely than the distant EP.

criticized for limited access of the public and for being dealt with behind the closed doors. Opening control of subsidiarity to the national parliaments means also opening the processes and contents to a greater extent to the public. The crucial issue to be solved is the question of subsidiarity as the law-making process raises the issue of democratic accountability and regulation at different levels of the EU.³⁶⁷ A good step forward was taken in the Lisbon Treaty with the introduction of the above-mentioned yellow card procedure that strengthens the democratic surveillance in the legislative phase at exactly the right level, the national Parliaments to which EU citizens feel most attached and find the expression of their will more closely than the distant EP.