10 Colum. J. Eur. L. 173 (2004)

Stephen C. Sieberson, Adjunct Professor of Law at the University of Oregon School of Law. The author has previously taught at the University of Washington School of Law, Seattle, at the Faculty of Law, Erasmus University, Rotterdam, and at the Faculty of Law, University of the Netherlands Antilles, Curaçao.

Throughout its first half-century the European Union has been the subject of an ongoing and vigorous discussion as to its form. For a 17-month period beginning on February 26, 2002, that discussion was carried out in the grandest manner possible – a constitutional convention. On July 18, 2003, the European Convention completed its work and released its Draft Treaty Establishing a Constitution for Europe. This document is now under examination, and it will be further debated in a lengthy approval and ratification process whose successful conclusion is by no means assured.

There are many ways to view the Draft Constitution. It may be seen essentially as an attempt to clarify and improve the institutional structure of the European Union. It may be considered as a vehicle to redefine the relationship between the Union and its expanding group of Member States. Or it may be analyzed as a ground-breaking document with the potential to stimulate the creation of a new federation, a United States of Europe. These approaches and others will be addressed in this article, but the particular focus will be the extent to which the Draft Constitution resolves the long-standing concern over the EU’s “democratic deficit.”

The democratic characteristics of the European Union have been under scrutiny from its inception, but the term “democratic deficit” has generally been attributed to David Marquand, whose 1979 book Parliament for Europe was published just as the first elected European Parliament was about to convene. Marquand, who had served as a member of the British Parliament and as an EC Commission official, argued that further European integration should not be pursued unless the democratic accountability of Community institutions could be ensured. He contended that a proposed end to unanimous voting on the Council would rob the democratically legitimate Member States of their power of oversight, and a “democratic deficit” would result unless the European Parliament were to fill the void. In the ensuing years a wide variety of criticisms of the EU have been expressed in terms of such a deficit, and the phrase has resonated among politicians and scholars alike.

Concerns over democratic legitimacy and the perceived deficit have permeated recent discussions on the future of the European Union, and they have served as motivating factors for the Constitutional Convention. When the Commission published its seminal White Paper on European Governance in 2001, it based its sweeping proposals for EU institutional reform on “principles of good governance,” including openness, participation and accountability. These principles were described as the underpinning of democracy, not only for the Member States, but also for the Union. Later that year, the European Council met in Laeken, Belgium, and issued its Declaration on the Future of the European Union. The Laeken Declaration noted that the EU “derives its legitimacy from the democratic values it projects, the aims it pursues and the powers and instruments it possesses” as well as from its “democratic, transparent and efficient institutions.” Nevertheless, the document set forth a lengthy list of questions illustrating the need to “increase the democratic legitimacy” of the EU’s institutions. These questions were intended to serve as themes for the Constitutional Convention, which the Declaration mandated to begin in 2002.

As its title indicates, this article will analyze the Draft Constitution to determine whether it offers institutional and procedural improvements of sufficient scope to eliminate or even substantially reduce the European Union’s democratic deficit. Such an analysis presumes that the deficit can be defined, but a review of the extensive literature on the subject reveals that a comprehensive catalog of deficit theories has not yet been written. This article will attempt to provide a useful framework for the subject and sufficient detail to support the critique of the Draft Constitution.

As background, Part II of this article will explore in broad terms whether it is possible to describe an ideal structure for a democratic European Union, and whether that structure should follow the pattern of an intergovernmental organization, a federal state, or something else. Parts III and IV will describe the range of democratic deficit theories that have been advanced by critics who demand that the Union must be more democratic than it is at present. In Part III the emphasis will be on identifying the sources of popular dissatisfaction with the EU system overall, while Part IV will focus on particular institutions within the EU and the Member States. Alongside the criticisms in Part IV, there will also be a variety of suggestions for improving the Union and an analysis of what the Draft Constitution would accomplish toward that end. Part V will review several issues raised by the Convention and the Draft that are not focused on particular EU institutions, and it will assess whether the Constitution as a whole would eliminate the democratic deficit.