Challenging Executive Dominance in European Democracy
| Date | 01 January 2014 |
| Published date | 01 January 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12054 |
THE
MODERN LAW REVIEW
Volume 77 January 2014 No 1
Challenging Executive Dominance in
European Democracy
Deirdre Curtin*
Executive dominance in the contemporary EU is part of a wider migration of executive power
towards types of decision making that eschew electoral accountability and popular democratic
control. This democratic gap is fed by far-going secrecy arrangements and practices exercised in
a concerted fashion by the various executive actors at different levels of governance and resulting
in the blacking out of crucial information and documents – even for parliaments. Beyond a
deconstruction exercise on the nature and location of EU executive power and secretive working
practices, this article focuses on the challenges facing parliaments in particular. It seeks to
reconstruct a more pro-active and networked role of parliaments – both national and European
– as countervailing power. In this vision parliaments must assert themselves in a manner that is true
to their role in the political system and that is not dictated by government at any level.
INTRODUCTION
Why does executive dominance matter in the context of the European Union?
One reason is the nature and reach and intensity of EU governance as it has
evolved, in recent years in particular. European governance embraces the
Treaty-based and other powers of the various key political actors (the European
Council, the Commission, the Council, the European Parliament), in particular
their role in law making and execution. The European Council sets the agenda
and directs the law making institutions, the Commission proposes the content of
far-reaching legislation, ensures its implementation and negotiates international
agreements and the Council is co-legislator, main decision-maker and executive
actor depending on the policy area. European governance also covers the
executive power of the European Union that is exercised to a considerable
extent by a host of more ‘hidden’ but, nonetheless, formal actors towards the
backstage of European governance (for example, European level agencies and
‘comitology’ committees).1Agencies that provide key certification of airplanes
*Professor of European Law and Director of the Amsterdam Centre for European Law and Govern-
ance (ACELG), University of Amsterdam. This article is a revised and expanded version of the 2013
Chorley Lecture, delivered at the London School of Economics on 4 June 2013. I dedicate this article
to the memory of Peter Mair, inspirational political science colleague and friend.
1 See further, D. Curtin, H. Hofmann and J. Mendes, ‘Constitutionalising EU Executive Rule-
Making Procedures: A Research Agenda’ (2013) 19 ELJ 1.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 1–32
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or medicines or food and committees that decide which tracts of land to place on
the environmentally protected area list are adopting decisions that are seemingly
‘technical’ but may also be politically salient in a host of ways. All these decisions
matter, also ultimately for the European citizen, even if they only sporadically or
invisibly affect him or her.
Another reason to be concerned about executive dominance is the manner in
which democracy is hollowed out in the context of the EU. The phenomenon
of strong executive power sidelining the institutions of representative or liberal
democracy often consolidates and intensifies in times of emergency or crisis. The
US security emergency had repercussions worldwide and also in Europe and
continues to be felt today.2The fight against terrorism has spawned a variety of
disputed legal acts and legislation in Europe with fundamental implications for
the privacy and civil liberties of citizens and non-citizens.3Unilateral control
over information and decision-making at the expense of parliaments is a long-
standing feature of more ‘inter-governmental’ arenas of decision-making includ-
ing the EU’s Common Foreign and Security Policy (CFSP).4The Terrorist
Finance Tracking Program (TFTP) Agreement with the US, for example, allows
the sharing between the EU and the US of the personal banking records of
suspected terrorists.5Europol, the EU policing organisation, oversees the imple-
mentation of the TFTP agreement by the US but as we now know in the
aftermath of the Snowden revelations, the US simply continues to take the
information it wants directly anyway and operates in a largely law-free and
parliament free zone.6In what became known as the ‘SWIFT’ affair, power was
exercised through the depoliticisation of the TFTP as well as a depoliticised
understanding of the European fight against terrorism finance in general.7
The most recent emergency or crisis, the economic crisis, resulted in an
acceleration of decision-taking by supranational and national executives at the
2 See for a long-standing challenge to the blacklisting of terrorists by the EU, Joined Cases
C-584/10 P, C-593/10 P and C-595/10 P Commission and others vKadi, Judgment of 18 July
2013, not yet published.
3 See for example the Proposal for a Directive of the European Parliament and of the Council on
the use of Passenger Name Record data for the prevention, detection, investigation and pros-
ecution of terrorist offences and serious crime, COM (2011) 32 final, 2 February 2011. The EP
was set to vote on this proposal on 10 June 2013, but the vote has been delayed.
4 See further, the special issue of the Journal of European Public Policy edited by H. Sjursen, The EU’s
Common Foreign and Security Policy: The Quest for Democracy (2011) 18 JEPP.
5 See, Agreement between the European Union and the United States of America on the processing
and transfer of Financial Messaging Data from the European Union to the United States for the
purpose of the Terrorist Finance Tracking Program, OJ 2010, L 195/5.
6 The EU is debating suspending the agreement as a result. See speech by Commissioner Malmström
to the EP Civil Liberties Committee, 24 September 2013 and European Parliament resolution of 23
October 2013 on the suspension of the TFTP agreement as a result of US National Security Agency
surveillance. Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//
TEXT+TA+P7-TA-2013-0449+0+DOC+XML+V0//EN&language=EN (last visited 18
November 2013). On the inadequacy of legal remedies see, E. Fahey, ‘Law and Governance as
Checks and Balances in Transatlantic Security: Rights, Redress and Remedies in EU-US Passenger
Name Records and the Terrorist Tracking Program’ (2013) Yearbook of European Law 1.
7 See, M. Wesseling, The European Fight against Terrorism Financing: Professional Fields and New
Governing Practices (2013) University of Amsterdam, PhD thesis.
Challenging Executive Dominance in European Democracy
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
2(2014) 77(1) MLR 1–32
European level, often with a very profound and wide-reaching national impact.8
The new role of the European Union in the adoption process of national budgets
is obviously of direct consequence to the financial wellbeing of citizens across
Europe.9Plans for a single supervisory mechanism for banks10 and for a banking
resolution authority11 touch on very sensitive areas of national policy. Executive
dominance by EU institutions and by (some) national actors at the European
level has now reached into such sensitive policy fields as national budgets and
macro-economic decisions (for example with regard to Cyprus).12
The phenomenon of executive dominance in the EU context should not be
seen as particularly exceptional or sui generis in comparative terms. Rather it can be
understood as part of a much wider phenomenon of the migration of executive
power towards types of decision-making that eschew forms of electoral account-
ability and popular democratic control in a context where there is ‘less party on the
ground’.13 Peter Mair’s work shows how the very rationale behind the EU, long
before the economic crisis, conforms closely to more general thinking about the
role and the drawbacks of popular democracy. He analysed the EU as a deliberate
construction by national executives as ‘a protected sphere’ in which policy making
can evade the constraints imposed by representative democracy at the national
level.14 This democratic gap is fed by far-going secrecy arrangements and practices
exercised in a concerted fashion by the various executive actors at different levels
of governance and resulting in the ‘blacking out’ of crucial information and
8 See, in general, F. Scharpf, ‘Monetary Union, Fiscal Crisis and the Pre-emption of Democracy’
(2011) MPIfG Discussion Paper 11/11; J. Habermas, The Crisis of the European Union: A Response
(Cambridge: Polity Press, 2012); J. Weiler, ‘In the Face of Crisis: Input Legitimacy, Output
Legitimacy, and the Political Messianism of European Integration’ (2012) 34 Journal of European
Integration 825; M. Maduro, ‘A New Governance for the European Union and the Euro:
Democracy and Justice’ (2012) RSCAS Policy Papers PP 2012/11; K. Nicolaïdis, ‘European
Democracy and Its Crisis’ (2013) 51 JCMS 351; B. Crum, ‘Saving the Euro at the Cost
of Democracy?’ (2013) 51 JCMS 614.
9 See, eg, D. Chalmers, ‘The European Redistributive State and a European Law of Struggle’
(2012) 18 ELJ 667.
10 See, Proposal for a Regulation of the European Parliament and of the Council establishing
uniform rules and a uniform procedure for the resolution of credit institutions and certain
investment firms in the framework of a Single Resolution Mechanism and a Single Bank
Resolution Fund and amending Regulation (EU) No 1093/2010 of the European Parliament and
of the Council, COM (2013) 0520 final, 10 July 2013.
11 See, Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the
European Central Bank concerning policies relating to the prudential supervision of credit
institutions and Regulation of the European Parliament and of the Council amending Regulation
(EU) No 1093/2010 establishing a European Supervisory Authority (European Banking Author-
ity) as regards its interaction with Council Regulation (EU) No 1024/2013 conferring specific
tasks on the European Central Bank concerning policies relating to the prudential supervision of
credit institutions, both adopted by the European Parliament on 12 September 2013 and awaiting
publication in the O.J.
12 See too, J. Fossum, ‘The Structure of EU Representation and the Crisis’ in S. Kröger (ed), Political
Representation in the European Union. Democracy in a Time of Crisis (London: Routledge, 2014)
(forthcoming).
13 R. Katz and P. Mair, How Parties Organize: Change and Adaptation in Party Organisation in Western
Democracies (London: Sage, 1994).
14 See further, P. Mair, Ruling the Void: The Hollowing of Western Democracy (London, New York:
Verso, 2013) in particular ch 4. See too, P. Lindseth, Power and Legitimacy: Reconciling Europe and
the Nation-State (Oxford: OUP, 2010).
Deirdre Curtin
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 3(2014) 77(1) MLR 1–32
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