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Summary European Union Law - Democratic Deficit
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  • EU Law
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  • Oxford University (OX)

Comprehensive summary/essay plan on the principle of democratic deficit in EU Law. This document will cover what is meant by the term 'democratic deficit' (including an analysis of what can legitimately be expected of the EU in this regard), and the problems currently threatening democracy within t...

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Document information

  • October 6, 2024
  • 5
  • 2022/2023
  • Summary

Subjects

  • eu law
  • european union law
  • democratic deficit
  • vodafone
  • germany v parliament and council

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  • Oxford University (OX)
  • Unknown
  • EU Law
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Democratic Deficit
1. What is meant by ‘democratic deficit’?
The idea of a ‘democratic deficit’ in the EU stems from the argument that power
within the EU is dominated by bureaucrats rather than by the elected representatives
of the people.
Essay will begin by identifying what is meant by a ‘democratic deficit’ and in
turn what we should expect from the EU.
In doing so, we must heed to Craig and de Burca’s caution about
being realistic with regards to our comparison with national regimes.
Various institutional aspects of the EU will then be analysed, including the ordinary
legislative procedure, as well as the apparent weakening of judicial control, thereby
exemplifying the clear existence of a ‘democratic deficit’.
* Have Reforms changed anything? *
While the Treaty of Lisbon has sought to remedy this issue, specifically with
regards to the introduction of the ‘Early Warning Mechanism’, will be argued
that such proposals, while helpful in theory, have failed to achieve the
outcome that was perhaps intended.
Jančić’s idea of introducing a “green card”.
Whereby national parliaments can propose new legislation and call
existing legislation for review.
Is sound and compelling.
BUT – if such mechanism were to be implemented, it would involve
a serious balancing act – would need to be determined whether the
potential improvement to the democratic value of the EU is important
enough to risk the re-nationalisation and weakened national
democracy that may follow.
Perhaps not.
2. What can be expected of the EU?
First pivotal to emphasise the point made by Craig and de Burca –
When discussing the democratic value of the EU, we must be realistic and
fair about what we are comparing the EU to.
Strictly comparing the EU with domestic parliamentary models of democracy
cannot be an adequate standard of comparison.
One cannot hold the EU to the same standard of an “idealised, old-fashioned
style democracy as we may a member state”, whereby all citizens can
participate equally.
The fact that the EU is responsible for legislating across all 27
member states renders this a practical impossibility.
Nevertheless, the right of citizens to have their voices heard and as a result influence
the nature and enforcement of various policies is the foundation of democracy.
Essay will therefore proceed on the basis that a ‘democratic deficit’ is present
when it is clear that citizens are so far removed from the law-making system
that they are powerless in their ability to influence or object to the manner in
which EU law is made (Craig and de Burca).

The question of whether such ‘democratic deficit’ exists within the EU can now be properly
answered.

3. Unresponsive to democratic pressures:
One fundamental difficulty with EU law system = it is unresponsive to democratic
pressures.
It is an integral function of democratic regimes that voters can change the
government.

, e.g., in the UK, this is done by general elections which, in theory,
take place every 5 years, the result of which directly changes the
composition of the government.
It is expected in democratic systems that the institution with the most democratic
legitimacy will hold the most power in shaping policy and making law.
This is not the case with the EU.
Legislative power is divided between the three Institutions: The European
Parliament (‘EP’), the European Commission (‘EC’), and the Council of
Ministers (‘the Council’).
BUT – of these, it is only the EP which is directly elected by the
citizens.
In this system, the EC, a completely unelected body, thereby holding
the least democratic legitimacy of all the institutions, holds the sole
power to initiate legislation.
Meanwhile, the EP, the most democratic of the institutions, still holds no
power to initiate legislation, even after the Lisbon Treaty.
What’s more, the EC is often described as the “Guardian of the Treaties” given the
huge mandate allocated to it provided by Article 17(1) Treaty of the European
Union (‘TEU’).
As a result of this, citizen’s involvement in the election of members of the EP
will have little to no effect on the policy of the EU, thereby creating the
disconnect between citizens and the law-making procedure which generates
the argument of a ‘democratic deficit’.
4. Ordinary Legislative Procedure:
Such deficit is also evident in the evolution and use of the Ordinary Legislative
Procedure (‘OLP’).
Involves up to three readings: the EC creates its legislative proposal and
sends it simultaneously to the Council and the EP who review and return with
amendments if necessary.
Article 294 Treaty for the Functioning of the European Union (‘TFEU’)
– provides for a second reading of these amendments, allowing the
Commission to present another draft, and the subsequent creation of a
‘Conciliation Committee’ which constitutes the third reading if required.
BUT – one key change over the decades of evolution of this procedure = often, the
three institutions will agree at the first reading, thereby negating the need for a second
and third.
Consequently, since its creation, the ‘Conciliation Committee’ has rarely been
used.
It is evident from this, therefore, that the law-making procedures of the EU have
become more effective.
Previously, it could in some cases take up to a few years for the EU to adopt a
measure, by which time the issue it was seeking to address may have changed
or disappeared so that such measure is no longer necessary.
BUT – it is equally clear that such efficiency has come at the detriment of reduced
democratic quality.
An agreement at the first reading requires that the EP, an institution made up
of over 700 members, must act in a more consensual way.
When such consensus becomes a priority, diversity in the debate might be
lost and marginalised voices may no longer be reflected in any adopted
measure.
As aforementioned, it is fundamental to a system of democracy that citizens fell that
their voice is heard and that it can influence the law-making procedure.
An increase in the number of policies being accepted at the first stage
indicates that this is not happening – differences of opinions and values are
not being shared via review and amendments.

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