The European Union is Inherently Undemocratic. This is Because it Aims at Peace Rather than Representation
by Andrew Alexander
The views represented in this article are solely those of the author and may not be construed as in any way representative of the views or policies of Oxford Royale Academy.
Where the EU is concerned, it would appear that familiarity breeds contempt – contempt from the voters, contempt for the voters, too.
In the most recent Pew Global study, it was the bastions of the established order, the old-Europe countries, which were most cynical about the European project. In France, only 22% found the EU economically beneficial and only 41% supported the EU as a whole. In Italy and Greece, only 11% reported an economic benefit from the Union. The majority were opposed to the federation in Britain, France, Spain, Greece and the Czech Republic. The median European voter was 15% less likely to be a supporter of the EU than a year ago.
This is not a new development. Electorate across the existing EU have consistently rejected national government attempts to advance integration at both the political and economic levels over the last decade. Irish voters rejected the Treaty of Nice in 2001; Denmark and Sweden both held referendums on switching to euros and met public refusal; France and the Netherlands rejected the European Constitution in 2005; and the Irish rejected the successor Treaty of Lisbon three years later.
Tellingly, the EU has chosen to ignore the verdict and tell the electorate to think again. The Irish vote in 2001 was overturned by a subsequent vote in 2002, the defeat of the European Constitution was followed by an identical Treaty of Lisbon with truculent electors in France, and the Netherlands refused a vote on this occasion. The Irish did get a vote, and voted against in June 2008. They were sent to the polls again in October 2009 and nodded the Treaty through.
These experiences serve to draw out a very important disconnect between public opinion and political reality regarding Europe: the EU is not a democratic body.
The Fruits of War
Ask a layman why the EU was seen as necessary following the Second World War, and the answer is likely to be a variation on “to protect democracy and to ensure peace.” This is an understandable view, and it is partly true. The peoples of Europe have long desired freedom from conflict, but seldom freedom for democracy.
The integration of Europe began as an economic process through the European Steel and Coal Community in 1952. For a long time, the European Question was, in fact, the German Question. The dominance of German industry was deemed, after two great wars, to be such that even a great coalition of European powers was unable to defeat it without American interventions which were tied to ever-escalating prices. By conjoining the economic interests of Germany and France in strategically important areas for armaments, like steel, it was hoped that an arms race between the two would be impossible. Likewise, the community offered a form of mutual guarantee against the Soviet Union in the East, by giving each partner an economic stake in the wellbeing of its neighbours. In this respect, what was seen as a dangerous economic rivalry between nations was subverted to provide for an economic rivalry between power blocs.
It is a peculiarly British conceit that the country went to war in 1914 and 1939 to protect democracy. It did no such thing.
Democracy, however, was another issue. Prior to the outbreak of the First World War, no major European nation had a franchise which incorporated more than a fifth of voters. The full franchise did not arrive in Britain until 1928, France until 1944, Germany and Austria until 1918, and Italy until 1945. Portugal had to wait until 1974. In other words, while war is constant in European history over three millennia, and a consciousness of it is deeply ingrained in national psyches and institutions, democracy is a relatively recent innovation. It is a peculiarly British conceit that the country went to war in 1914 and 1939 to protect democracy. It did no such thing. It went to war to protect the territorial integrity of Belgium and Poland respectively. The Allies discovered that they were fighting for democracy only when they required American support in both cases.
Conflicting desires for domination and security are, therefore, European preoccupations, rather than the franchise. While the Americas, the Arab world and the former USSR have all seen the vote follow after popular agitation for it, France alone in old Europe has seen a revolution in favour of democracy, and that was back in 1792.
There are two important consequences of this history that are pivotal to the understanding of the European Union. Firstly, the drive towards closer integration of institutions and the removal of national programmes even at the expense of the control of the electorate has been integral to the project from the beginning. Secondly, that democratic participation is of lesser cultural importance in Europe than elsewhere, particularly in the United States and the Dominion nations which introduced it earlier and still participate more enthusiastically in national political life. The EU model of governance has historically accounted for this and integration has not been the subject of continuous scrutiny by national electorates.
Blessed be the lawmakers
The anti-democratic bias in the EU is a function of its design. Governance institutions are created to coordinate between member states in relatively simple areas with limited resistance. As the bureaucratic apparatus grows, and initial tasks become accomplished, the bureaucracy begins to push into more complex, sensitive areas. However, as the bureaucracy is usually taking on a small selection of countries over disparate issues at any one time, it can usually claim majority support. In this way, powers are gradually eroded.
It is not inevitable that the creation of government institutions automatically creates an impetus for a greater government role in civic life. The arrangement of institutions in the United States is such that it deliberately creates antagonistic relationships between them, and therefore operates as a block against the power of each. The EU system, where no actor with democratic authority is sufficiently strong to overrule the Commission, serves no such function.
There are other additional features of the EU governance system which support this tendency towards authoritarian and expansive political power being exercised by those with only tenuous democratic connections. Foremost amongst these is the power of judges.
This power derives chiefly from the difficulties inherent in crafting treaties which must be acceded to by 27 separate nation states. Precise language is more likely to increase the number of potential points of dispute, whereas a vague text encourages member states to either push back their concerns to a later date or to rely on the clause being interpreted in line with their own wishes when it finally appears before either a national court or the European Court of Justice.
In a system where treaties are constructed with deliberate ambiguity, the task of deciding what lawmakers meant falls to the ECJ. When considering the court, it should first be recognised that the European legal tradition is dissimilar to the British tradition. It is also, thanks to recent interpretation, superior to it. As is the case with the national justice systems of the continental countries, the ECJ is a civil law court, interpreting a civil code as each case arises, rather than being constrained by the consideration of precedent in past cases. As there is little new under the sun, a system based on precedent will, of nature, move slowly and act against judicial radicalism as judges will be constrained by the actions of more conservative predecessors. In a civil law system, judges can shift the accepted interpretation of a statute, often very radically, in one sitting. This has the effect of creating a more activist judiciary and bringing about a further de facto ability to make political weather to another non-elected actor.
The impact of judge-made law has been profound. When the Law Lords decided in Factor Tame II that the British parliament had, in signing up for the European Community, rendered European law superior to British law, they effectively instituted what Professor Vernon Bogdanor has recognised as a “new constitutional order”. Again, this is partly thanks to the conflict between common and civil law traditions. British common law courts interpret narrowly and do not invent law to fill in statutes they believe have been misapplied.
This is not the case in Europe. Again, there is a historical reason for this. The victorious allies re-wrote the constitutions of the Axis powers after the Second World War. In keeping with the civil service view that the war had been caused by over-mighty executives able to use demagoguery to over-ride the democratic machinery of the nation concerned, their solution was much more powerful courts. An integral part of this was to provide a written constitution, and with it to ensure that the judiciary was able to strike down statute and over-rule the elected government.
The unintended consequence of this was to make continental judges an additional arm of the legislature. Like a second chamber, they are able to operate a veto power against new legislation as a result of their ability to strike it down. This has been taken to extreme lengths in the new European countries, Hungary’s supreme court struck down 273 laws in one five-year spell from 1990, for instance — one in three of all those passed. Likewise, Poland’s highest court was at one point striking down some 40 laws every year, including one allowing abortion on limited grounds.
In some European jurisdictions, courts have gone further and started creating laws to cover gaps between existing statutes. For instance, Germany’s constitutional court created a privacy law in 1973 when deliberating on the Princess Soraya case. European lawmakers have been conscious of the anti-democratic tendency of courts to flex their muscles for some time, but they haven’t been able to stop it. When the French founded the Fifth Republic, mention of a veto power for the courts was specifically removed from the constitution. The supreme court, in turn, found a reference to the Declaration of the Rights of Man in the preamble to the constitution and took this to be sufficient grounds to assume this power.
All this is evident in the ECJ’s most important judgements. In Cassis de Dijon it assumed the power to judge whether laws passed in one member state and applicable to imports and domestic products equally could be construed as discriminatory on cultural grounds, opening up a new and highly subjective field of legal activity. In Van Gend en Loos it declared that it had an ability to strike down national laws which had not been explicitly recognised in any EC treaty law, while in Costa it declared EU law superior to national law, again not an explicit treaty change.
Again, this is an instance of an institution seizing power, and again it is an example of major changes being made without the direct consent of the people affected in the referendum sense, but also without their indirect consent – these judges are not, by and large, figures who have ever stood for public election, although in some countries such as Italy they are chosen thanks to political associations.
The Corporatised Continent
The European democratic model has become a corporate one thanks to the EU. In return for the services the union provides, particularly for peace in our time, the public is prepared to give up its democratic grip. The important decisions in EU life are made away from public scrutiny and by figures and institutions which are poorly understood and little captured by the democratic process. The argument against a pan-European superpower was always that its subject peoples would suffer from a lack of say over how they were run – we are now in the situation where this has happened, and while dissent is growing, the harsh truth is that the subject peoples never quite cared enough about democracy to reverse the process.