This article is the English version of : Marie-Françoise Bechtel, « Peut-il y avoir une démocratie européenne ? », published in Politique étrangère, Vol. 83, Issue 4, 2018.

Asking whether a European democracy is in fact possible is clearly a sign of the times. Does this question, which points to a deficit by inviting us to revisit a much-criticized model, also point to a necessary objective? We might initially think not: things move fast in the early twenty-first century and, as Hubert Védrine highlights, the world does not wait for powers to constitute themselves as such if they have neither the desire nor the ability to do so.

In the multilateral world that is currently taking shape, is the key challenge for Europe not rather to present itself as a power that can defend its economic and strategic interests like the other great centers of power, providing itself with the means to speak in an independent voice to the best of its ability? In terms of this challenge—which plants the seeds of tomorrow in the present, and highlights that action cannot be taken too soon—it could be argued that the EU’s internal modes of existence and organization are ultimately of secondary importance. We might even go so far as to apply the reasoning of Thierry de Montbrial, who believes that in the current international order, what counts is the effectiveness of a regime, which results from its power and thus wins the support of its people.  It is, however, undeniable that the EU lacks effectiveness in its self-projection as a power, and above all lacks the support of the peoples within it. This is hardly surprising.

The democratic deficit

It is difficult for any honest observer, let alone a jurist, to deny that the EU has a democratic deficit. Indeed, the word “deficit” is actually something of an understatement here.

What is inevitable?

It is often pointed out how the EU’s expansion made effective governance based on representation worthy of this name impossible, but this overlooks the fact that the European Economic Community (EEC) turned its back on the essential principles of democracy at a very early stage. It was with the Van Gend en Loos ruling in 1963 that the Court of Justice of the European Communities (CJEC) established law decided by the Community authorities as a “sovereign legal order imposed on member states.” This power grab beyond the letter and spirit of the Treaty of Rome initially went unnoticed, as it seemed to represent a diversion from the hierarchy of norms, a kind of challenge destined to remain the only of its kind. However, and contrary to all expectations, this approach ultimately succeeded in the context of inattentiveness and carelessness on the part of the member states: nature abhors a vacuum, and the ambition of judges did the rest.

It was also with the support of judges that EU directives—which, according to the text of the treaty (still in force), “shall be binding, as to the result to be achieved, upon each Member State”—became texts that set out in detail how this “result” should be reached. As a result, the transposition of directives has now become a matter of simply copying and pasting into domestic law extremely dense texts that are usually dictated by non-representative bodies  —a point to which we will return—with ever-increasing reach. While citizens’ obligation to know the law remains theoretical when it comes to national law (which itself has the tendency to become tediously prolix), this deficit is amplified to the nth degree in European law, with these same citizens being aware of its vast extent and nothing else. For thirty years the EU’s powers were continually expanded, and their juxtaposition with out of reach institutions did the rest.

The institutions

The institutions of the modern EU do not fundamentally differ, in their actual definition, from those present at its beginnings. The fact that they exercise an increasing number of sometimes poorly defined powers does however give the devolved powers of the bodies that make up the EU much greater reach.

Technically speaking the EU is an international organization, but one that is sui generis, in which the member states “have freely chosen to exercise some of their powers in common,” as article 88-1 of the French Constitution has stated since Maastricht (1992). This makes it a unique organization. The question is whether the acceptance of supranationality may exempt the institutions of this unique body from respecting democratic standards founded on the separation of powers. These powers are almost entirely absent: first and foremost, there is no legislative power derived from a sovereign people that has exclusive power to define norms, a power that is shared with the Commission. The Commission is itself not only the executive body of the Council of the European Union, but a parallel source of uncontrolled legislative initiative. Meanwhile, judicial authority is beyond the reach of citizens, who can consult the Court only in cases where there is a direct interest, few of which it recognizes. […]

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