3. Conceptualising democracy, legitimacy and the development of good governance in the EU
| Pages | 80-120 |
| Author | Melanie Smith |
3 Conceptualising democracy,
legitimacy and the development
of good governance in the EU
A key feature of Article 226 is that it provides a forum for political
interaction between the institutions of the European Union (EU), and
between the institutions and the citizen. This interaction occurs in both the
judicial and administrative phase of Article 226, and concerns the
formulation of policy, the administration of infringement investigations and
ex post control and accountability of the discharge of public power. Because
of the lack of intervention by the European Court of Justice (ECJ), these
political and administrative interactions are largely unbounded by legal
restrictions. This transfers the pressure for creating legitimacy in the
operation of Article 226 from legal controls, to the quality and nature of the
political decision-making that drives Article 226. The political environment
that shapes the operation of (and political decision-making within) Article
226 becomes a key factor in our understanding of the role it plays in a
Union with constitutional pretensions.
Questions regarding the evolution of the EU and its expanding
boundaries (both territorial and philosophical) are inextricably bound to
complex questions about the nature of the EU project, and the extent of the
legitimacy and popularity such an entity commands. The lack of traditional
democratic mechanisms and government institutions in the EU has led to
questions as to how the EU ought to be judged in terms of its political
legitimacy or democratic merit as a whole. These debates have evolved
from claims as to whether or not there is a palpable ‘democratic deficit’
operating in the EU, to more subtle discussions that are less concerned with
quantifying the depth of the democratic deficit, but instead consider some
alternative conceptualisations of democracy which fit more neatly with the
current organisational structure and governance mechanisms of the Union.
More recently, debates have widened and are often interrelated with
discussions of such nebulous concepts as ‘legitimacy’ and ‘good
governance’ when addressing the subject of the overall credibility of the
Union’s organisation. Such debates are not confined to the academic arena,
but are very much at the centre stage of EU politics, with a renewed focus
on how to improve the legitimacy of the EU in the eyes of the citizens in
the context of a constitutional project, as evidenced by such texts as the
Laeken Declaration1 and the Commission’s contribution to this debate in
the White Paper on Governance (WPG).2 The debate about the nature and
direction of the European polity did not begin with the Laeken Declaration,
but rather has been part of an ongoing process of renewal and reform that
has gained significant momentum since the Maastricht Treaty. Such debates
feed into every policy-making domain of the Union, including the policy
domain of enforcement of legal obligations. In order to incorporate a useful
debate regarding the political context of the EU into the evaluation of the
role of Article 226, this chapter will focus on some key questions relating to
the legitimacy of the EU. It will highlight the fact that good governance in
particular has been used to bridge the divide between traditional concepts of
democracy and workable solutions to the legitimacy question. By defining
the key concepts of legitimacy and good governance, the discussion of the
role of Article 226 can take place with reference to a specific intellectual
framework.
This chapter will be structured as follows. The first section will discuss
the challenge of terminology in academic debates on the democratic deficit,
and the difficulties caused by embedded conceptions of democracy in
attempting to construct an effective discourse. The next section will then
offer a broad outline of some conceptual tools used in academic debates, in
order to help to clarify the discussion of democracy and legitimacy in
relation to the research questions. The third section introduces the concept
of ‘good governance’, which has been embraced as an alternative approach
to increasing the EU’s legitimacy, and in particular considers the
contribution of the Commission in its WPG. Finally, the fourth section will
focus upon how these conceptual tools and contemporary institutional
contributions can be utilised in order to outline a framework of analysis for
the consideration of the legal and political context of the enforcement
action. This framework of analysis will be used as a lens through which the
role of Article 226 will be evaluated.
THE CHAL LENG E OF TERM INOLO GY
The question of the democratic deficit in the EU is as vast as it is opaque.
It is, like questions relating to the concept of legitimacy, very much
dependent on one’s theoretical and ideological perspective. What there can
be no doubt about is that there is a pervasive feeling of discontent among
the European public with the Union project.3 In response to this perception
of discontent, politicians, bureaucrats and academics alike have tried to
envision a solution to this crisis, albeit in sometimes very different guises.
The suggestions presented as a means of solving the problem of the
democratic deficit are equally problematic – there is, at the heart of these
debates, no accepted definition of the term ‘democratic’. Consequently, the
ideas (or ideals?) are wide ranging depending upon which definition of
‘democratic’ is adopted.4 This in turn depends upon one’s own normative
vision for the EU in the first place, and indeed whether you think that the
Union ought to be democratic under any definition at all.5 This question is
difficult to resolve without an accepted benchmark as to what is democratic
or legitimate. While this is certainly not inimical to the generation of debate
on the problem of legitimacy and democracy in the EU, and indeed such
debate might certainly create a more democratic environment in and of
itself,6 such difficulties do present a challenge to those charged with making
concrete and readily defendable changes to the system of governance in the
EU.
The ‘ sta te mo del’ of de moc racy
The term democracy is inevitably linked in the popular consciousness
with the modern Western liberal conception of state-level democratic rule.
This typical benchmark of the ‘state model’ of democracy is, in reality, a far
cry from the idealised version of democracy against which the EU is
unfavourably judged. Executive-dominated parliaments, declining voter
turnouts and the effects of globalisation on nation-state politics are just a
few points on a very long list of criticisms to be levelled at modern state
democracies. There is no single model of state democracy, even one with all
of these limitations. The approach to democratic governance varies over
time and territory.7 There are a myriad of different configurations currently
in operation, so it is unsurprising that, in practical terms, an organisation
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