Conceptualising European Union legitimacy through democratic participation.

Abstract

Against a backdrop of democratic and legitimacy theory, I critically re-examine the European Union's purported 'democratic deficit' and question whether it has continued relevance as a 'de-legitimating' force. I consider the provisions on representative and participatory democracy articulated in Part 1, Title VI, Article 1-46 and 47 of the Constitutional Treaty, which are designed to stimulate citizen participation in European governance. While the path to ratification of the Constitutional Treaty appears to have been obstructed, the specific provisions in Article 1-47 nonetheless invite discussion as to whether the norms may contribute to the theoretical and functional development of democracy beyond an institutionalised conception of representative democracy and whether they can in turn contribute to the legitimation of supranational lawmaking. On the question of 'who can participate', I conclude that contemporary understandings of democracy demand the redefinition of the body politic to encompass all those who reside in the EU.

Keywords: European Union, legitimacy, democracy, participation, constitutional treaty, citizenship

Introduction

The continuing debate about the European Union (EU) constitution, its desirability and prospects has stimulated renewed scholarly interest in the related questions of democracy and legitimacy. The emergence of a Constitutional Treaty (CT) (albeit not in force), has suggested new possibilities for conceptualising democracy, democratic participation and legitimation generally. In this paper I have recourse to these three issues from diverse theoretical perspectives and in the context of relevant CT provisions. The decline of traditional democratic participation (defined in terms of electoral activity) has encouraged the search for alternative modes of popular participation in the EU polity. It is argued that the democratic legitimacy of EU lawmaking requires effective dialogue between the governed and the governing institutions and actual public participation in the political processes of the EU. This invites discussion of civil society, its make up, its representativity and the specific avenues for participation outlined in the CT. In particular, Article 1-47 sets out a blueprint for participatory democracy at EU level, which will be examined in section 4 of this article.

While the progress of the CT towards ratification has halted following its rejection by French and Dutch voters, the provisions in Article 1-47--The principle of participatory democracy--merit discussion as to whether they may contribute to the theoretical and functional development of democracy beyond an institutionalised conception of representative democracy and whether they can in turn contribute to the legitimation of supranational lawmaking. The stalling of the CT should not stymie discussion of its provisions even in the absence of a consensus view among European leaders as to whether and how to proceed with ratification. (1) Though the issues of democratisation and legitimacy of the EU are clearly divisible from the CT, the proposals in the CT invite scholarly analysis as they represent the latest initiatives in a longstanding debate on the topics. Such analysis may build on existing knowledge and even suggest possible reformulations of democratic theory or restore momentum to the flagging enterprise of political integration. Even if the CT is never ratified, many of its institutional and other prescriptions will probably see light in the form of amendments to existing treaties, although it is by no means clear how this issue will progress. (2) Depending on the manner in which future amendments are ratified, this may perpetuate claims of illegitimacy and reinvigorate the perennial criticisms of elite decision-making. Perhaps more than ever before, there is a need to ascertain and achieve some consensus as to the sources of EU legitimacy in order to avoid painting the EU into a corner whereby public approval for further constitutional development is demanded yet the conditions for informed public deliberation are withheld. The dangers inherent in this scenario are evident.

In this paper I briefly revisit the nature of EU legitimacy (3) and the intersections between democracy and legitimacy. I then outline some differing conceptions of democracy, focusing on participatory democracy against a backdrop of the norms of governance outlined in the Commission's White Paper on Governance (4)--viz. openness, participation, accountability, effectiveness and coherence--now partially captured within Article 1-47 of the CT. The instruments of participatory democracy warrant evaluation to ensure the broadest participation of members of the communities that make up the polity. As drafted, the provisions in Article 1-47 of the CT may be seen to encourage participation by citizens and their representatives. However, there appear to be few mechanisms in place by which some of the most marginalised, least recognised and least empowered members of the public may directly contribute to dialogue and participate within the political structures of the EU. In particular, non-citizens are excluded. These are the nationals of third countries who reside in a EU member state but do not have the citizenship of a member state. If the democratisation of the EU demands greater inclusiveness and participation in deliberative processes of all those affected by decisions, the CT seems to fall short. Although a welcome initiative in terms of substantive value, the provisions in Article 1-47 fail to respond to calls for greater inclusiveness and to contemporary challenges of democracy and multiculturalism. They do little to redress the lack of recognition and marginalisation of those who do not enjoy the rights of member state (and thus EU) citizenship. In the latter part of this article I therefore consider an important impediment to the realisation of the legitimacy enhancing effects of Article 1-47 CT.