1. Use and Meaning of the Term

The phrase "democratic deficit" is cited as having first been used in 1977 by the Young European Federalists in their Manifesto,^[1] which was drafted by Richard Corbett. In 1979 it was used by David Marquand in reference to the then European Economic Community, the forerunner of the European Union. He argued that the European Parliament (then the Assembly) suffered from a democratic deficit as it was not directly elected by the citizens of the Community.^[2] 'Democratic deficit', in relation to the European Union, refers to a perceived lack of accessibility to the ordinary citizen, or lack of representation of the ordinary citizen, and lack of accountability of European Union institutions.^[3][4]

1.1. Constitutional Nature of the Democratic Deficit

In the European Union, there are two sources of democratic legitimacy: the European Parliament, chosen by the electorates of the individual EU countries; and the Council of the European Union (the "Council of Ministers"), together with the European Council (of heads of national governments), that represent the peoples of the individual states. The European Commission (the executive branch of the Union) is appointed by the two bodies acting together. Democratic legitimacy within the EU can be compared with the dual legitimacy provided for in a federal polity, such as the United States of America , where there are two independent sources of democratic legitimacy, the House of Representatives and the Senate, and, to become law, decisions must be approved both by one institution representing the people as a whole and by a separate body representing the peoples of the individual states.^[5]

The German Constitutional Court referred to a "structural democratic deficit" inherent in the construction of the European Union.^[6] It found that the decision-making processes in the EU remained largely those of an international organisation, which would ordinarily be based on the principle of the equality of states and that the principle of equality of states and the principle of equality of citizens cannot be reconciled in a Staatenverbund.^[6] In other words, in a supranational union or confederation (which is not a federal state) there is a problem of how to reconcile the principle of equality among nation states, which applies to international (intergovernmental) organisations, and the principle of equality among citizens, which applies within states.^[7] A 2014 report from the British Electoral Reform Society wrote that "[t]his unique institutional structure makes it difficult to apply the usual democratic standards without significant changes of emphasis. Certainly, the principles of representativeness, accountability and democratic engagement are vital, but the protection of the rights of minorities is perhaps especially important. The EU is a political regime that is, in one sense at least, entirely made up of minorities."^[8]

1.2. European Commission

One assertion of democratic illegitimacy focuses on the role of the European Commission in initiating legislation. This criticism has, in turn, been criticised, using comparisons with the situation in national governments where few members' bills are ever debated and "fewer than 15% are ever successfully adopted in any form", while government proposals "generally pass without substantial or substantive amendments from the legislature".^[9] The Commission is reestablished every five years. Individual members of the incoming Commission are nominated by national governments and the proposed Commission is (or is not) approved jointly and severally by the Council of the European Union and the European Parliament.^[10] Parliament has the power to dismiss the Commission early (and has used that power).

According to R. Daniel Kelemen, fragmented power systems like the European Union and the United States may tend to produce more detailed regulations that give member states less discretion in implementation.^[11]

In an attempt to strengthen democratic legitimacy, the Treaty of Lisbon provided that the nomination of the President of the European Commission should "take account" of the result of the European parliamentary elections, interpreted by the larger parliamentary groups to mean that the European Council should nominate the candidate (Spitzenkandidat) proposed by the dominant parliamentary group. However, this has also been criticized from the point of view of democratic legitimacy on the grounds that the European Union is not a country and the European Commission is not a government, also having a semi-judicial role that requires it to act as a "referee" or "policeman" rather than a partisan actor. The fear is that a "semi-elected" Commission president might be "too partisan to retain the trust of national leaders; too powerless to win the loyalty of citizens". This, too, is seen as a possibly insoluble problem resulting from the European's dual nature, partly an international organization and partly a federation.^[12]

The Electoral Reform Society observed polling evidence from Germany which showed that support for the CDU/CSU (EPP group) ahead of the 2014 European Parliament elections was higher than support for the Social Democrats (S&D group) and that there was little difference between their support in the opinion polls for national and European Parliament elections. This was despite another poll showing that S&D candidate Martin Schulz was more popular among German voters than EPP candidate Jean-Claude Juncker. They concluded that "this does not suggest that the majority of German voters are treating the contest as a chance to choose a Commission President." However, they recommended that the candidate model be kept with "a clearer set of rules for future elections."^[8]

1.3. European Parliament

One assertion of democratic illegitimacy focuses on the alleged weakness of the European Parliament. This has been countered by a number of political scientists, who have compared the systems of governance in the European Union with that of the United States, and stated that the alleged powerless or dysfunctional nature of the European Parliament is now a "myth".^[9] It is argued that there are important differences from national European parliaments, such as the role of committees, bipartisan voting, decentralized political parties, executive-legislative divide and absence of Government-opposition divide. All these traits are considered as signs of weakness or unaccountability, but as these very same traits are found in the US House of Representatives to a lesser or greater degree, the European Parliament is more appropriately compared with the US House of Representatives.^[9] In that sense, it is now a powerful parliament, as it is not controlled by a "governing majority": Majorities have to be built afresh for each item of legislation by explanation, persuasion and negotiation.

Legislative initiative in the EU rests almost entirely with the Commission, while in member states it is shared between parliament and executive. However, in national parliaments less than 15% of legislative initiatives from individual members of parliament become law in any form when they do not have the backing of the executive, while most proposals by the executive are passed without major amendments in parliament. The European Parliament, on the other hand, can only propose amendments, but these proposals are successful in more than 80% of cases, and even in controversial proposals, the success rate is almost 30%.^[9]

Liberal Democrat (ELDR) MEP Chris Davies, says he has far more influence as a member of the European Parliament than he did as an opposition MP in the House of Commons. "Here I started to have an impact on day one", "And there has not been a month since when words I tabled did not end up in legislation."^[13]

European elections

The low turnout at European elections has been cited as weakening the democratic legitimacy of the European Parliament: the BBC commented that in Britain many more votes were cast in an election on the reality show Big Brother than in the 1999 European Parliament election. On the other hand, the President of the European Parliament [the 'Speaker'] compared the turnout for the European Parliament to the presidential elections in the United States:

In fact, the figures that are compared, the European Parliament voter turnout from 1999 (49.51%)^[14] and the US presidential voter turnout from 1996 (49%)^[15] are only marginally different, and the US voter turnout for 1996 was the lowest turnout in the US since 1924 (when it was 48.9%). The turnout in European elections has also been declining every election without exception to a low of 42.54% in 2014.^[16]

According to Matej Avbelj (Director of the Law Institute in Ljubljana, Slovenia), the EU democratic deficit can be viewed as having a formal component (which is likely to be remedied) but also a social component resulting from people's low acceptance of the EU, as evidenced by low voter turnout.^[17]

Legal commentators such as Schmidt and Follesdal argue that the European Union lacks politics that individual citizens understand. This flows from the lack of knowledge of political parties and is reinforced by the lack of votes at European Union elections.

1.4. Council of the European Union

Voting in the Council (of relevant Ministers) is usually by qualified majority voting, and sometimes unanimity is required. This means that, for the vast majority of EU legislation, the corresponding national government has usually voted in favour in the Council. To give an example, up to September 2006, out of the 86 pieces of legislation adopted in that year the Government of the United Kingdom had voted in favour of the legislation 84 times, abstained from voting twice and never voted against.^[18]

2. Development of Democratic Legitimacy and Transparency

Over time, a number of constitutional changes have been introduced to increase democratic legitimacy:

• The Maastricht Treaty introduced
  • the status of EU citizenship, granting EU citizens the right to vote and stand in elections to the European Parliament and municipal elections in their country of residence, irrespective of their nationality (subject to age and residency qualifications).^[19]
  • the legislative procedure known as the "co-decision procedure", giving the directly elected European Parliament the right of "co-deciding" legislation on an equal footing with the Council of the European Union.^[19]
• The Treaty of Lisbon, which came into force on 1 December 2009 introduced
  • a separate treaty title confirming that the functioning of the EU shall be founded on representative democracy and giving EU citizens both direct representation through the European Parliament and indirect representation via national governments through the Council of the European Union^[20]
  • the establishment of the co-decision procedure as the standard ("ordinary") legislative procedure^[20]
  • a significant increase in the powers of the European Parliament^[20]
  • the right of any EU citizen or resident to petition the European Parliament "on any matter which comes within the Union's field of activity and which affects him, her, or it directly".[Article 227 TFEU].^[21]
  • making meetings of the Council public when there is a general debate and when a proposal for a legislative act is voted on. These debates can be viewed^[22] in real time on the Internet.^[23]
  • enhancing the role of national parliaments in EU legislation.^[24]
  • giving full legal effect to the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council of the European Union and the European Commission in the year 2000.^[25]