Faculty of Philosophy Political Science Chair of Comparative European Governments Prof. Dr. Gerd Strohmeier Postal adress: Technische Universität Chemnitz, 09107 Chemnitz, Germany Visitor adress: Thüringer Weg 9, Zimmer 209, 09126 Chemnitz, Germany Office: Tel. +49 (0) 371 531-37612, Fax: +49 (0) 371 531-27729 E-mail adress: gerd.strohmeier@phil.tu-chemnitz.de Constitutional Engineering at the Supranational Level: The Concept of Full Parliamentarization of the European Union from a Critical Perspective Since the first direct election of the European Parliament in 1979, the call for the "full parliamentarisation of the EU, that is, a democratisation of the EU in accordance with national standards 1 has grown louder and the process has advanced gradually. The expansion of (qualified) majority voting in the Council and of the European Parliament's rights to participate with each treaty revision since the Single European Act can be understood as an increase in the parliamentarisation of the EU. 2 However, it is questionable if this will actually solve the problem resulting from the gap between legitimacy and efficiency. Many people believe that a weakening of the veto power of national governments in the Council will make the latter more efficient and foster the role of the European Parliament by giving it more legitimacy. 3 After all, the often-cited democracy deficit lies in the fact that the European Parliament as the only EU body that has direct democratic legitimacy has a smaller role than the Council whose democratic legitimacy is not due to being directly chosen, but being appointed, (several times removed from direct election). It would be a big mistake, however, to equate or confuse the European Parliament's small role with the EU's democracy deficit and consequently to mistakenly equate the increasing parliamentarisation with an increasing democratisation of the EU. Full parliamentarisation will not ameliorate the EU's democracy deficit but strengthen it 4 for two reasons: the fundamental conditions necessary for democratic administration are missing, and democratic rule has no clear objective. In principle, the EU lacks the object of democratic rule, that is to say, a European demos (populace) or a strong "collective identity, 5 a "we-feeling. A "democracy without a demos" 6 is, of 1 For example, Joschka Fischer in his speech "Vom Staatenbund zur Föderation Gedanken über die Finalität der europäischen Integration" given on 12 May 2000 at the Humboldt University of Berlin. The "full parliamentarisation" of the EU implies, first of all, an upgrading of the European Parliament to become the "primary or lower chamber" and a downgrading of the Council to function as the "secondary or upper chamber". 2 The Treaty establishing a Constitution for Europe even stipulates and expands qualified majority voting in the Council combined with the right of the European Parliament to participate as due process for engaging in a legislative act at the EU-level. 3 Cf. Werner Weidenfeld: Die europäische Verfassung verstehen, Bonn 2006, p. 69. 4 Cf. Dieter Grimm: Braucht Europa eine Verfassung?, in: Juristenzeitung, 50 (1995) 12, p. 581-591, here p. 589. 5 Cf. ibid., p. 589.
course, a contradiction in terms both at the national and the supranational level. I am not arguing that democracy requires a nation-state or that popular sovereignty requires the sovereignty of the state and that national borders therefore mark the limits of popular sovereignty. 7 The existence of a demos does not depend on a "unit of population but on "social cohesion even though social cohesion can be severely impeded at the supranational level due to the existence of a popular unit at the national level. Nevertheless, the decisive question is not whether, but when and under which conditions a supranational demos can exist. Essentially, this condition requires the integration of national demoi into a supranational demos characterised by a strong collective identity or social homogeneity; this means that without extensive socio-political integration or collective identification, it is hardly possible to have a parliamentary democracy and connected with it the forming of parliamentary majorities or the general application of the majority principle (similar to the application of the solidarity principle). 8 Consequently, a (supranational) demos requires the existence of a (supranational) society that has "a sense of belonging together which enables it to assume responsibility for majority decisions and solidarity, too". 9 Thus, a European demos requires a (politically integrated) European society. But there is no (politically integrated) European society at best there is a "European type of society. 10 In other words, Europe has no "economically, politically or linguistically and culturally integrated society but consists of a host of competing nation-states where history is present and a suspicious awareness has been raised of inside and outside, of interdependencies, rivalries, external effects and dependencies. 11 In a certain sense, the countries or the people of Europe are "too old, burdened by too much history and too proud of their specific achievements 12 to be able to constitute a politically integrated European society. The existence of historically grown ethnic, cultural and linguistic differences does not prevent the development of a politically integrated European society in general but it clearly hampers true integration. In addition, the lack of a "democratic infrastructure makes integration even more difficult. The EU also lacks the basic condition of democratic rule a European public or the ability for "supranational discourse. 13 After all, a democracy without a public and an ability to discourse is 6 Cf. Richard Münch: Demokratie ohne Demos. Europäische Integration als Prozess des Institutionenund Kulturwandels, in: Wilfried Loth/Wolfgang Wessels (Eds.): Theorien europäischer Integration, Opladen 2001, p. 177. 7 Consequently, any authority within the state which has not been legitimised by (all) people or exclusively by the people is to be considered a (principal) form of heteronomy and ultimately the opposite of popular sovereignty. Cf. Christoph Gusy: Demokratiedefizite postnationaler Gesellschaften unter Berücksichtigung der EU, in: Zeitschrift für Politik, 45 (1998) 3, p. 267-281, here p. 247. 8 The majority principle cannot be applied to decisions regarding key issues, when the difference between the majority and the minority does not result from objective considerations but from fundamental contradictions and if the minority perceives the decision by the majority not as a legitimising procedure but as heteronomy. Cf. C. Gusy (footnote 7), p. 279. 9 Cf. Dieter Grimm: Braucht Europa eine Verfassung?, in: Juristenzeitung, 50 (1995) 12, p. 581-591, here p. 590. 10 Cf. Claus Offe: Gibt es eine europäische Gesellschaft? Kann es sie geben?, in: Blätter für deutsche und internationale Politik, (2001) 4, p. 423-435, here p. 424. 11 Ibid. 12 Ibid, p. 433. 13 Cf.D. Grimm (footnote 9), p. 590. 2
just as impossible as a "democracy without a demos : 14 "The existence of elected parliaments ( ) says less about the democratic potential of a political system than the plurality, internal representativeness, liberty and ability of political parties, organisations, associations, civil movements, and communication media to compromise. 15 That means that democracy is more than parliamentarianism and can only be implemented through parliamentarianism if specific parliamentary-democratic conditions have been met. These are largely tied to the existence of a general social public or ability to discourse. After all, parliamentary decision-making requires an integrated "pre-parliamentary process of determining the opinions and desires of the community, as well as a comprehensive debate of political decisions outside of the legislative setting 16 in the scope of an open community-wide discussion of interests and conflict management 17, as well as "feedback by representatives to those they represent. 18 Consequently, in order to implement (supranational) parliamentary democracy, the EU needs (supranational) cross-media structures 19 that constitute a general public and facilitate a general discourse within society. That means that a European parliamentary democracy needs a functioning European public. However, there is no functioning European public; at best there is a (weak) trend to Europeanise national publics. 20 In other words, European topics are not debated by (supranational) European media in a "European language from a European perspective but by national media in a national language from a predominately national perspective. 21 Although within a certain communicative community, communicators do not necessarily need to use the same media 22, a communicative community requires communication participants to be able to use the same media. A communicative European community cannot be created if there are almost exclusively national media used exclusively by national audiences with exclusively national communication habits. As an integral component of such communication habits, language presents a decisive obstacle to the creation of a European public. A European public or a European discourse requires European media offerings, i.e., European media offerings for a European audience that speaks one European language (and as thus is able to communicate). 23 14 R. Münch (footnote 6), p. 177. 15 D. Grimm (footnote 9), p. 588. 16 Cf. Jürgen Gerhards: Europäisierung von Ökonomie und Politik und die Trägheit der Entstehung einer europäischen Öffentlichkeit, in: Maurizio Bach (Ed.): Die Europäisierung nationaler Gesellschaften, Wiesbaden 2000, p. 286. 17 C. Gusy, (footnote 7), p. 276. 18 Ibid. 19 Cf. D. Grimm (footnote 9), pp. 587. 20 In certain areas only, the national public deals with European topics and evaluates these from a non-nation state perspective. J. Gerhards (footnote 16), p. 296 or there is talk of selective "Europeanised" public communication in the sense of transnational communication of the same topics at the same time and under the same focus of relevance Klaus Eder/Cathleen Kantner: Eine Kritik der Rede vom Öffentlichkeitsdefizit, in: M. Bach (footnote 16), p. 238. Similar communications patterns might have increased in recent years. However, we should not confuse a European public with "increased reporting of European topics by national media" D. Grimm (footnote 9), p. 588. 21 Cf. D. Grimm (footnote 9), p. 588. 22 Cf.Klaus Eder/Cathleen Kantner: Eine Kritik der Rede vom Öffentlichkeitsdefizit, in: M. Bach (footnote 16), p. 312. 23 Cf. Grimm (footnote 9), p. 588. 3
The lack of a common European language is an essential reason for the lack of a European public: "Europe is not a communicative community because Europe is a multi-lingual continent the most trivial fact is at the same time the most fundamental one. 24 Consequently, the lack of a common European language is "the greatest obstacle to the Europeanisation of the political substructure on which a functioning democratic system and an effective parliament depend. 25 It is important to note that language should not be reduced to a communication instrument. Language is much more than a mere means of communication. It is an integral element of a political culture or political identity. In this context, it is clear that English cannot be a European lingua franca for two reasons: first, it does not facilitate any politically substantial communication of the masses 26, and second, it does not facilitate communication in a person's native language. In the long run the fact of the multitude of languages spoken in Europe prevents the formation of a communicative European community both for quantitative and qualitative reasons and thus the founding of European media, parties, and associations. We can conclude that the fact that there is neither a European demos nor a European public poses a structural obstacle on the way to the full parliamentarisation of the EU which cannot be overcome institutionally. 27 This is the reason why the "full parliamentarisation of the EU would not result in more but in less democracy. 28 It would not give Europeans a greater say in EU matters but it would result in the increased heteronomy of nations within the EU. 29 Besides the lack of a European demos and a European public, there is another hurdle complicating full parliamentarisation of the EU Parliament itself, because it is not what many people think it is: a "true parliament 30, a body where people are represented following national models, because, after all, there are not only differences between the European Parliament and national parliaments in terms of power but also with regard to structure. Accordingly, probably the most important structural difference between the two is that the European Parliament is not the parliament of the people of Europe but of the people living in EU member-states. It is elected by national populaces pursuant to national election laws in national elections where national parties 31 compete for national "percentage shares in national contests. 24 Peter Graf Kielmansegg: Integration und Demokratie, in: Markus Jachtenfuchs/Beate Kohler-Koch (Eds.): European Integration, Opladen 1996, p.55. 25 Cf. Grimm (footnote 9), p. 588. 26 Cf. J. Gerhards (footnote 16), p. 290. For the overwhelming majority of EU citizens, English is a foreign language that they master only to the extent that they can carry on a modicum of conversation. That means that those people who would be allowed to participate more by full parliamentarisation would be capable of participating only to a limited extent. M. Rainer Lepsius: Die Europäische Gemeinschaft und die Zukunft des Nationalstaats, in: ibid.: Demokratie in Deutschland. Ausgewählte Aufsätze, Göttingen 1993, p. 257. 27 Cf. D. Grimm (footnote 9), p. 590. 28 Cf. ibid., p. 589. 29 Cf. C. Gusy (footnote 7), p. 273. After all, if the importance of the Council were downgraded, the weakened connection to the member states would not be compensated for by a stronger link to EU citizens. D. Grimm (footnote 9), p. 589. Karl-Otto Sattler: Magische Kräfte im europäischen Haus, in: Das Parlament, edition of 1 Nov. 2004, p. 3. 31 After all, there are no European parties but only "loose collaboration among programme-related parties in the framework of transnational party assemblies or party umbrella organisations. 4
These percentages show that the European Parliament cannot function as a representative body of a European public due to the Parliament's composition. According to the principle of decreasing proportionality, the relative under-representation of large countries (e.g., Germany) and the relative over-representation of small countries (e.g., Luxembourg) drastically limit the ability of votes to be weighted equally and the ability for people to be elected at the European level; together these factors would indicate that Community suffrage violates the German Constitution (Grundgesetz) and the constitutions of other countries. 32 Of course, there are institutional methods of remedying the lack of a "true parliament as an obstacle to the "full parliamentarisation of the EU but it would not resolve the problem of the missing European demos and the missing European public. Therefore, it would be a grave mistake to shape European representative democracy according to the ideal of nation-state based representative democracy. Parliamentary democracy is without a doubt the best form of democratic rule at the national level but not at the European level. The establishment of democratic structures at the European level is not a question of generally transferring nation-state mechanisms to non-national institutions, 33 but a question of adequately adjusting democratic postulates to conditions of a supranational framework. 32 C. Gusy (footnote 7), p. 269. 33 Ibidem., p. 277. 5