The ‘standard version’ of the democratic deficit formulated by Weiler, consisting of the increased role of the executive Commission in matters of legislation, the weakness of the European Parliament (hereafter the EP), the lack of ‘European’ elections, EU distance to public scrutiny and voters, and finally ‘policy drifting’ by the executive non-compliant to voter interests, has and continues to be a major target of criticism within the field of European Union (the EU) law. The matter is of utmost importance in light of the implications of such in the EU legislative process involving the EP and its perceived lack of substantive necessity despite reforms seeking to remedy such.
Since the establishment of supremacy in EU law by the European Court of Justice in Van Gend en Loos and Costa, it is primarily the law-making process of the EU itself that drives the debate on the perceived lack of democracy. Central to all of this is the complexity of the process that casts doubt upon its democratic legitimacy. Despite the Treaty of Lisbon (Lisbon) remedying much of the loathsome deficit, effort is still required as overwhelming flaws in the democratic legitimacy of the EU persist to which no single remedy is available. The most significant feature of the complexity of EU law-making throughout its various stages concerns the intra-EU balance of powers which furthers the debate on the democratic deficit. As such, focus must be placed upon the structure and function of the primary EU institutions which are undoubtedly interlinked to the claims of a democratic gap in the law-making process. Factors of representation, electoral politics and public scrutiny are also matters of importance and potentially propose a contrary account to the underlying grievances. It must be accordingly contended that an effort to align the complaints composing the democratic deficit is necessary to provide proper analysis of this pressing EU issue.
First among the concerns is the excessive role of the Commission in law-making that raises questions on the democratic legitimacy of the procedure. The Commission has primary control over secondary legislation, mainly based on the Ordinary Legislative Procedure (OLP), allowing it to act as a policy-making director of EU law equipped with exclusive powers of initiating legislation, effectively ensuring its power to set the EU agenda. The Commission’s monopoly of power over initiating this legislation extends to many areas of EU law-making. Despite attempts to qualify this power by way of TFEU Article 241 in giving the EP or the Council of the EU rights to submit legislative proposals, the sole initiator remains the Commission which also retains the power to reject and scrutinise their proposals as it deems appropriate. Further to this are attempts by Lisbon to qualify the agenda-setting powers of the Commission by way of TEU Article 11(4) and the Protocol increasing national parliament participation in the law-making process. Following this, the Commission must consider the opinions, review proposals and take into account proposals by EU citizenry. In practice though, the Commission is still the ultimate arbiter of decisions by retaining the final say on initiating legislation. The EP effectively plays a subsidiary role and this clearly places the Commission at the head of the OLP and makes the system useless without it.
Aside from power initiating legislation, the Commission is active throughout the OLP. It scrutinises Parliament’s amendments in second readings for the Council to approve by Qualified Majority Voting (QMV) or unanimity, depending on the Commission’s position. Also, the Commission sits in the Conciliation Committee to attempt to reconcile...