I.   Introduction

It has become a truism that the EU suffers from a democratic �deficit�. [1] It suffers from deficiencies in representation, representativeness, accountability, transparency, and support. The problem is not merely that of the establishment of an additional layer of governance, further removed from the peoples of Europe. It is also that this process contributes to the transformation of the Member States, so that each Member State can no longer claim to be the source of its own legitimacy (Beetham and Lord 1998).  These transformations are driven it is held, by political and administrative elites operating with little popular input and control. Hence the emerging system is seen to suffer from weak popular legitimacy (Wallace 1993; Scharpf 1999; Schmitter 2000; Weiler 1999a). These assertions are generally premised on two further notions. The first is that the decision-making processes in the EU are closed, elitist and expert-driven and the second and closely related is that there is a very weakly developed or non-existent public sphere in the EU.

The EU, however, is a dynamic system and is undergoing deep changes, with regard to its range and scope of operations, its institutional apparatus, its effects on the Member States, and its commitment to democracy and legitimacy. Since the breakdown of the �permissive consensus� in the early 1990s, the EU has increased its commitment to democracy and legitimacy. The standards of legitimate governance pertaining to openness, accountability and transparency have been raised. Institutional reforms, human rights promotion and other remedial efforts have been made to close the legitimacy gap. These developments are puzzling when considered in light of the widely held assertion that there is no European demos, nor a genuine European-wide public sphere. If the public sphere is non-existent how then explain the commitment to democracy and rights - that has not only been sustained - but has even become strengthened over time? This is not akin to denying executive officials a role in fostering a democratically legitimate EU. But their projects and proposals are presented to, argued for, deliberated over, and decided upon in the various bodies that make up the EU � some of which are more subject to public scrutiny than other.

In order to answer this question pertaining to commitment to democracy and rights, we need to reconsider the widely held assertion that the public sphere is weakly developed, and ask if there is a type of public sphere emerging in Europe that is inadequately understood and conceptualised. To address this question, we adopt a deliberative democracy approach - an analytical perspective that is particularly conducive to the study of the role and salience of the public sphere, and therefore permits us to analyse the assertion of a very weakly developed public sphere. This approach distinguishes between strong and general publics � the former referring to a sphere of institutionalised deliberation and decision-making and the latter to a sphere of opinion formation (without decision-making power). The purpose of this paper is to assess selected central aspects of the institutional nexus of the EU in order to explore whether they qualify as strong publics.  Strong publics are a vital part of modern democracy. In the next part, part two, we clarify the meaning of public sphere. In part three, we discuss the role of strong publics in the EU. The focus is on Comitology, the European Parliament, and the Courts. The fourth and final part holds the conclusion.

 

II.  The Public Sphere � essential to democratic legitimacy

The deliberative perspective portrays politics as governing by public discussion. It posits that opinions are shaped and tested in public debate and further that people are able to change their opinions when faced with better arguments. Democratic politics entails giving reasons for government decisions to the ones who are bound by them. Only norms and statutes that are justified to those affected and that are accepted by all in a free debate can claim to be truly legitimate. [2] This is a basic principle of democracy. A truly sovereign person is one who is able to decide on the norms she is bound by. The public sphere is a precondition for realising popular sovereignty, because, in principle, it entitles everybody to speak without any limitations, whether on themes, participants, questions, time or resources. It is a common space for free communication that is secured by legal rights to freedom of expression and assembly, where problems are discovered, but also thematised and dramatised and formed into opinions and wills that formal decision making agencies are to act upon.  When seen from a deliberative perspective, parliamentary bodies transform the influence of the public sphere into communicative power and this in turn serves to legitimise political decisions in parliament (Habermas 1996:371). There is a vital interplay between the public sphere based in civil society and institutionalised will-formation in parliament, with both of these components essential to popular sovereignty. As Habermas observes �(o)nly the principles of the guaranteed autonomy of public spheres and competition between different political parties, together with the parliamentary principle, exhaust the content of the principle of popular sovereignty�(Habermas 1996:171).      

The notion of �public sphere� signifies that equal citizens assemble into a public and set their own agenda through open communication. Historically speaking, this public sphere � which was prescribed by the authorities � the public immediately lay claim to and used in confrontations with public authorities over the general rules of coexistence in the fundamentally privatised, but publicly relevant sphere for exchange of goods and societal work. The medium for this political confrontation is remarkable and without historical precedent: the public reasoning (Habermas 1962/1989:27). The public sphere that sprang forth in British coffeehouses from 1680 to 1730 - and correspondingly in drawing rooms and clubs in France - first consisted of literary, then political, public sphere.

In conceptual terms, the public sphere is non-coercive, secular, and rational. It is established through individual rights that provide citizens with protections from state incursions. The modern public sphere is founded on rational debate and antithetical to conflict-settlement by reliance on dogmas. This idea of public sphere is closely linked to the principle of universalistic argumentation. The public sphere is reflective - through it �society� thematises itself. The modern concept of public sphere stretched across all of civilised Europe (Taylor 1995:266).

The development of a public sphere has profound implications for the conception of democratic legitimacy. With this development, the power holders� basis of legitimacy is changed, as citizens are equipped with rights against the state. Decision-makers are therefore compelled to somehow enter the public arena in order to justify their decisions and to gain support. They cannot allow themselves to merely pose for the masses, as the Roman emperor did. There are no external bodies that guarantee the legitimacy of power - neither divine law nor traditional authority. Authority is found in the public �reasonable� discussion. With this legitimacy becomes not only precarious, but also a critical resource � something �outside of the reach of individuals�. We see a transition from the speech of power to the power of speech (Lefort 1988:38). Neither given institutions nor concrete persons guarantee the legitimacy of the law. Only the public debate in itself has norm giving power.

The conception of the public sphere presented above is a distillation of certain ideal-typical elements of a particular historical development, that of the emergence of bourgeois society. The subsequent development of society has weakened or even reversed some of these traits. For instance, in 1962 J�rgen Habermas spoke of a re-feudalisation of the public sphere. By this he meant that economic relations in society, which had been differentiated out as a private realm of action through the market, have re-entered the public agenda as interest-based politics. Rather than decision-making following a free and open debate, political questions are decided in closed assemblies and through institutionalised bargaining. Competition between political parties, a propagandistic press, and the neo-corporate channel of influence, channelled social power directly into the political-administrative decision system, without first subjecting it to public testing. What characterises the public sphere is no longer principled debates, or reflections on the common good, but rather the noise from the competition among political parties, effectively sponsored by sensationalist and commercialised media. Power seeks its realisation in the opportunities offered by closed rooms, committees, boards, and councils, and power-holders are left alone by a servile press that is loyal to the political parties. This perspective finds a strong resonance in the present debate on the EU, which is criticised for emerging into a closed and self-contained bureaucratic juggernaut (Siedentop 2000).

 

The EU - A closed and elitist system?

The most widely held view of the EU is that of a European bureaucratic and expert-based technocracy that competes and co-operates with a system of special interest rule � with big business and national public servants as the dominant interests. The system operates in such a manner that many of the decisions never reach the public eye, as they are taken behind closed doors in preparatory, regulatory and management committees. The system gives organised lobbies a strong position and favours special interests at the behest of the larger public. The large Member States have the most votes, and it is the voices of the economic-functional interests that are most easily heard, due to their lobbying and bargaining resources. Decisions are reached by experts, not accountable to elected representatives, and laws are passed without due hearings and with little transparency and publicity - it is an elite game (Middlemas 1995:612). The EU system on the whole is, on this reading, occupied by the special interests of big business and the ideology of free markets  (Lodge (ed) 1989, Traxler and Schmitter 1995, Andersen and Burns 1996, Siedentop 2000).

The question is how to establish whether a European public sphere exists. To address this question we need theoretical and methodological categories that are attuned to the peculiar nature and rationale of the public sphere. Categories of opinion- and will-formation through deliberation are needed in order to understand how actors� preferences are shaped � including how they are moulded and transformed in the process of establishing a common position and reaching binding decisions. A conceptual scheme that allows for the impact of the power of arguments in decision-making processes is needed. Most analyses of the EU focus on influence and the power of actors to enforce their preferences and are thus inadequate to address the question of the emergence of a European public sphere.

Taking deliberation and the role of the public sphere seriously has implications for how we conceive of the process of integration. We thus have to supplement the two mainstream conceptions of integration, i.e. integration through functional adaptation, and integration through interest-accommodation (or strategic group activity), with a third, namely integration through deliberation  (i.e., through the process of arguing) (cf. Eriksen and Fossum 2000). These three modes are based on specific and analytically distinct logics of action. The two former modes are based on instrumental means-ends notions of rationality, whereas the latter is based on a communicative notion of rationality. The latter mode, integration through reason giving, is oriented at convincing opponents of the right course of action. A viable public sphere is an essential prerequisite for this mode of integration, because it forces the decision-makers to justify the decisions towards the ones affected.

The public sphere is a common space in society, but it is a space that today is divided into different types and categories. It consists of different assemblies, fora, arenas, scenes, and meeting-places where the citizens can gather. Today the public sphere is a highly complex network of various parts of public spheres, which stretch across different levels, spaces, and scales. There are strictly situated public spheres, where the participants meet face to face, there are written public spheres, and there are anonymous, faceless public spheres made possible by the new electronic media and developments (Habermas 1996:373 pp.).

In order to assess the assertion that the public sphere is weak or non-existent in the EU we need to distinguish between strong publics which refers to institutionalised deliberations �whose discourse encompasses both opinion formation and decision making��, and weak or what we will term general publics which refers to public spheres �whose deliberative practice consists exclusively in opinion formation and does not also encompass decision making.� (Fraser 1992:134) In institutional terms, strong publics alludes to parliamentary assemblies and discursive bodies in formally organised institutions imbued with decision-making power, yet constrained by the logic of arguing or by impartial justification. General publics, refers to the sphere of deliberation outside the political system, i.e. akin to the notion of civil society and to the logic of discovery. [3]

The distinction between strong and weak or general publics has implications both for the re-feudalisation of the public sphere thesis and for the question of an underdeveloped public sphere in the EU. It suggests that the notion of public sphere is really a multitude of different publics. Multiple publics are better at testing democratic legitimacy as more opinions and viewpoints are vindicated and more arguments aired. The notion of strong publics suggests that rational debate can also occur in closed settings where the requirement to provide justification is present. Further, the two spheres interact.

The criteria we will use in our assessment of the role and salience of strong publics in the EU refer to (a) decision-making capacity; (b) deliberation, i.e. that decision-making is preceded by deliberation and that decisions are justified through reason giving; and (c) representativeness, i.e. in principle that all those potentially affected by decisions have their say. The latter refers to openness and transparency. These criteria permit us to rank-order bodies, so that we can designate some as more or less developed strong publics.

In the EU there is a multitude of public spheres; national, international and transnational ones (Eder 2000, Delanty 1998, Schlesinger and Kevin 2000, Z�rn 2000). These may be separate, overlapping, or convergent. Further, there are both strong and general publics in the EU ranging from popular and academic debate in media via epistemic communities to representative assemblies.

III.  Towards Democracy in the EU?

What are the democratic functions of the strong publics in the EU? We examine the democratic aspects of the decision-making system in the EU, with emphasis on Comitology; the system of representation (EP); and the role of Courts (ECJ). 

 

Comitology: Substitute democracy?

The process of implementing legislative acts by the Commission is assisted by hundreds of committees that consist of experts from the Member States and are chaired by representatives of the Commission. This system of committees has been a vehicle for the Member States to exercise control and oversight from the start of European integration in the 1950s. Initially it covered such areas as agriculture, trade, and customs policies. It now also comprises amongst others research and development, environmental affairs and telecommunications. Comitology [4] is an EU expression denoting this practice, designated to constrain supranationalism. [5] The committee members are mainly experts and representatives from affected interest groups, as well as national civil servants, usually selected by national governments. [6]

Comitology may be understood as an institutional response to efficiency and legitimacy requirements. The Commission needs unbiased information and expert knowledge as well as opinions of laymen (and/or representatives of non-governmental bodies), in addition to loyalty and support from representatives of national governments, in order to be able to implement measures effectively. It is a general point that broad participation and fair decision-making rules enhance legitimacy. What is peculiar to Comitology - contrary to other international committees - is that these committees are involved in decision making that is directly binding on domestic governments. It has been suggested that Comitology is a new political order and one that may �repair� the democratic deficit. As both Member States and experts are included in the decision-making process it also contributes to deliberative supranationalism (Joerges and Neyer 1997). How can this be? Can Comitology be deemed a strong public?

The system of Comitology has evolved through several phases. From the 1970s, due to increased workload, an expansion of the number of committees and through lobbying from interest groups, the system has been seen to be in the hands of powerful groups. This picture changed with the introduction of the Single Market in the 1980s. Many predicted � drawing on assumptions from rational choice and assumptions of powerful group pressures � that there would be a massive scaling down of market regulations. On the contrary, the pattern is one of re-regulation and modernisation rather than deregulation and the politics of the lowest common denominator (Majone 1996; Neyer 1999; Joerges and Everson 2000). Moreover, in some fields what we see is a regulatory �race to the top� rather than one �to the bottom�. For instance, in areas such as consumer and environment protection, health, biotechnology, and workplace conditions standards have been raised (Egan and Wolf 1999:253).

With the Treaty of Maastricht and the development of the Common Foreign and Security Policy (CFSP) and increased judicial co-operation (Justice and Home Affairs � JHA), the task environment became more complex and so did the negotiation milieu. After 1985 all the major interest groups were present in Brussels and the context of negotiations in the Comitology nexus became quite pluralistic, with many �legitimate� participants. The resultant interest pressure led to more reliance on scientific evidence in order to build a platform for decision-making, and as a means of getting support from all parties. 

In such complex settings, preferences can not only be stated but must also be justified by arguments � and arguments that can be supported by scientific evidence have the best chance of convincing the parties. �The multiplicity of actors and interests now mobilised at the supranational level did not allow any single actor to dominate. Even the representative of powerful interests had to resort to arguments, reasoning and evidence in order to prevail in these discussions.� (Egan and Wolf 1999:254) Committees enjoy extensive freedom of discretion and they are not structured to accommodate interest aggregation (Gerstenberg and Sabel 2000:28ff).

Comitology establishes a framework for co-operative problem solving by granting decisional autonomy and by enabling discussion on different aspects of the cases at hand. Within this new institutional architecture, innovation, creative problem solving and ability to form agreements become the indicators of success. Analysts have revealed that participants undergo learning, explore rather than merely assert preferences and change their loyalties � all of which are conducive to the formation of supranational identities and joint problem solving (Neyer 1999;  Joerges and Vos et al 1999; Egeberg 1999). Committees are not only epistemic communities but are also strong publics. To some extent this system does comply with all the three criteria of strong publics outlined above: a deliberative style of interaction � participants talk themselves into agreement; participation of representatives of affected parties; and ability to make decisions. Does this system contribute to legitimate governance?

 

Comitology as legitimate governance?

The distinction between legislative and judicial branches of government does not apply to the system of Comitology. The committees� actions are not controlled by the Member States, neither by the Commission representatives. The EP has been opposed to the Comitology decision [7] because it bypasses the EP in the legislative process. For instance, it contradicts the co-decision procedure, which places Parliament on an equal footing with the Council in those areas of legislation where co-decision applies. The EP has initiated various measures � political, budgetary, legal - to contain its spread, but without much success (Bradley 1997). Comitology is, as Weiler proclaims, in formal terms unconstitutional (Weiler 1999b:343), but is it undemocratic?

When assessed by means of a simple majoritarian model of democracy, Comitology is illegitimate, as it is neither subject to national control nor to control by the EP. The problem is more complex when assessed by means of the deliberative model of democracy. This model considers justification and consent in public debate as the legitimating principle of popular sovereignty. The requirement is that in a public debate all political actions should be seen as emanating from the laws, which on their part to be legitimate must be consented to in a free debate.

The Committees are legal subjects and are constitutionally significant (Joerges 1999), but their legal competence is not to be understood in terms of a delegation model in which the actors merely act as agents of their constituencies. Authority is not conferred upon decision-makers according to a strict mandate. Not only do the structure and composition of the Committees - the members and their competencies, the level of discretion, the role of scientific reasons - do away with that fiction. The practice of reason giving, manner of preference formation and ability to reach agreement on collective action speak in favour of another view on Comitology committees. �They are designed not to reflect and aggregate self-interest, but rather to use the initially parochial and sectarian perspectives to foster mutual learning, and eventually the transformation of preferences as part of the elaboration of shared interpretations� (Gerstenberg and Sabel 2000:29). Nor is it to be understood as merely conferring legislative authority on non-authorised bodies. The members do not operate with fixed mandates but within legal frameworks that consist of a set of rules and norms that govern the decision making process. The members in the committees deliberate in the shadow of the law: �.. any criticism of divergent views must use arguments which are compatible with European law �� (Joerges 1999:317). Further, in modern complex societies delegation is part of the lawmaking process due to the knowledge and information that are needed for practically handling intricate matters. It is mainly the problem-solving capacity that is delegated. But as the agenda also consists of morally and ethically salient issues pertaining to risk regulation this is not the whole story. Comitology does not merely represent an a-political, technocratic administration of things. It also has to find viable answers to politically sensitive and normatively salient questions.

 

Enhancing political rationality

It may be that Comitology, when viewed in isolation, comes down to managerial informalism (Weiler 1999b) or technocratic deliberation (Scmalz Brunz 1999) or administration without state (Wessels 1999) as open access and participation are limited, as is the scope for transparency and public accountability. However, in some respects Comitology can be seen to contribute to legitimate governance. Well-informed problem solving and efficient decision-making, are also part of good governance. Expert-based decision-making is not on its own detrimental to democracy.

Committees may be seen as a solution to the problem of overloading political decision- making agencies, as well as to the problem of finding correct answers to normatively laden risk decisions.  These answers cannot be found by mere voting or by bargaining over contested issues. Nor can such questions be solved in a valid manner by subsuming them under legal statutes. Extended participation and more publicity also do not help much in reaching right decisions in cognitively demanding cases. Deliberation in committees, on the other hand, may contribute to the reaching of correct decisions when adhering to the logic of argumentation, i.e., when the discussion comply with criteria of truth and justice (Cohen and Sabel 1997, Joerges 1999:334, Gerstenberg and Sabel 2000). In this sense Comitology is akin to a kind of strong publics. On their own such strong publics ground the presumption that decisions can be vindicated and justified in a public debate due to their epistemic quality. They contribute to the rationality of decision making which is also an inherent part of democratic governance. This is so because the legitimating force of the democratic procedure is not merely to be found in participation and preference aggregation but in the access to processes that are of such quality that publicly acceptable decisions presumably can be reached (Habermas 1998:166). On this reading committees may be seen as contributing to a vital aspect of modern government, a part that is intrinsic to the principle of representation.

Representation contributes to the refining and enlarging of opinions by passing them through the deliberate concern of chosen members of the demos, it is often held. In larger, more complex, and pluralist settings the representatives have to take different interests and perspectives into consideration in order to justify particular claims and reach more reasonable and legitimate decisions. Representation may be seen as a precondition for political rationality as it secures institutional fora in which elected members of constituencies can peacefully and co-operatively seek alternatives and solve problems and resolve conflicts on a broader basis (Sunstein 1988). As James Madison contended, representation contributes to political rationality by lifting elected members of the community out of parochial settings, potentially corrupted by local factions or liable to self-interested representation, and locate them in supra local settings where they have to ground their claims with regard to others' interests and needs. The representatives do not only have to justify their decisions to their own electorate, but also to the representatives of other electorates. Thus closed-ness and representation are integral parts of modern government and basic to the principle of parliamentarianism.

In the same way Comitology is a system in which �national and Community actors pool their respective sources of legitimacy  - including their functional and technocratic reputation � to make the system acceptable to both the involved and concerned groups and to the population at large� (Wessels 1999:267). Comitology is conducive to parties acting according to guidelines rather than according to mandates � informed by opinions and expertise rather than fixed interests and preferences. The dialogical structure of communication and the forging of solidarity between diverse actors point towards transnational, deliberative proceedings in which the co-operative process and the manner in which it is conducted bear the burden of legitimation.

From the point of view of democracy, however, to be legitimate both the principles of representation and the outcome of institutionalized deliberations must endure scrutiny in open rational debate where all citizens are free to participate. That is why the question of the quality of Comitology as a strong public is contingent on the connection to and the viability of other strong and general publics in which all can participate on an equal and free basis. However, this is even more so the case with the European Parliament, which is of central (but far from exclusive) importance to the question of legitimate governance in Europe.

 

The European Parliament - a strong public?

Parliaments are both decision-making and deliberative bodies. They embody this combination better and more explicitly than any other political body: they are quintessential strong publics. As J.S. Mill noted �I know not how a representative assembly can more usefully employ itself than in talk, when the subject of talk is the great public interests of the country�(Mill 1972:259). Deliberation is intrinsic to the mode of representation that Parliaments are based on. This principle of representation can be stated as follows: �no proposal can acquire the force of public decision unless it has obtained the consent of the majority after having been subjected to trial by discussion�(Manin 1997:190).

Initially the EP was a consultative body with very limited powers and made up foremost of representatives of national parliaments. Over time, and in particular after the introduction of direct election of MEPs in 1979, its decision-making powers have grown immensely, and the links to national parliaments have become severed. The decision-making role of the EP is still considerably weaker than that of national parliaments, as it is virtually excluded from pillars Two and Three (CFSP and JHA). However, within its realm of competence the EP has become a co-legislator with the Council of the European Union in almost all policy areas except agriculture. The EP also exerts a measure of accountability. It has the right to approve of (and reject) as well as censure the Commission. In fact it has now demonstrated the willingness (and some ability) to �throw the scoundrels out� which is one of the main indicators of parliamentary power. It was the EP that unearthed the practices in the Commission that generated concerns with fraud and nepotism. It set up the committee of independent experts and imputed on the Commission its right to find out � through going through books, files and papers � who was responsible for what was going on. However, the EU is not a parliamentary system, as there is no government that emanates from the EP. The Commissioners are appointed by the Member States and the Commission is more of an expert body - than a politically accountable - government. The fact that the EP is excluded from a range of policy fields means that numerous decisions are made without being subjected to trial by discussion in the EP.

The trend over time is one of a heightened role of the EP in the EU�s decision-making structure. This has also helped to open up the institutions of the EU, through increased transparency and inter-institutional deliberation. From a deliberative perspective, it matters how much scope for arguing a decision-procedure permits before a vote has to be taken or another decision-making body (Council) can intervene and carry on with the proposal. Co-decision has increasingly become the standard procedure in legislative matters. This is the most cumbersome, but also the decision procedure that requires the greatest amount of deliberation and reason giving. This procedure gives Parliament more influence than do earlier decision-making procedures. Power is necessary if Parliament is to be a legislative chamber on a par with the Council. But co-decision can also foster deliberative virtues in that it spurs co-operation, conciliation and anticipated reaction among all the three key decision-making bodies (Corbett et al. 2000:188-9). Albeit deficient in decisional terms, what is the deliberative quality of the EP?

 

Deliberative qualities?

The institutional setting of which the EP is part is marked by a consensual style of politics (Lord 1998). Multiparty parliamentary systems are generally consensus-oriented but the EU is probably even more so. One reason is its peculiar institutional make-up, with absence of a clear-cut division between government and opposition. Majorities can then more easily form around a number of dimensions. Such a structure places particular onus on ability to persuade and convince strangers through reference to more generalised categories and arguments.

An open mandate and leverage in relation to party organisation is required for preferences to be changed and wills to be moulded in parliamentary fora. Deliberation presupposes ability to conduct an open and free debate without serious ties or aspects of �bootstrapping� of representatives. [8] Representative systems of competitive party democracy are based on partisan selection of representatives, constraints on the autonomy of representatives to vote according to their conscience and judgement, the structuring of public opinion around partisan cleavages, and very little scope for open deliberation in parliament (Manin 1997). The EU is not based on party democracy, and there is more scope for open deliberation in the EP than in a full-fledged party-based system.

Inability to control own agenda can be seen as a form of bootstrapping. The EP enjoys a great measure of autonomy in setting its own agenda (albeit not in determining its own institutional role within the EU). This right has been confirmed in several rulings by the ECJ. The EP is thus quite free to pursue those matters it deems important as well as respond to concerns of citizens and social movements. To fulfil its role the EP has developed a wide repertoire of means, such as debates, reports, hearings, and resolutions. These mechanisms produce arguments and justifications and convey information, and insert a deliberative style of politics into the EU, hence promote general publics.

True representativeness does hinge on equal opportunity to express oneself by all those potentially affected by a norm or a decision. Given the linguistic diversity of Europe, true equality would seem to presuppose a multilingual body, where every representative can express him or herself in a language they are wholly familiar with. The EP does operate as a multilingual body - there are 11 working languages in the present EP (only the South African and Indian parliaments have a comparable linguistic diversity). The Political Groups in the EP are made up of representatives from different Member States, which means that MEPs must actively interact with representatives from different language and cultural backgrounds. Such interactions cut across national bounds and serve to downplay national orientations. They may foster a body of representatives that is cognisant of cultural variation, culturally self-reflective, and compelled to argue in more universalistic terms.

The emergence of the European Parliament within the institutional structure of the EU can be depicted as that of an increasingly institutionalised body of will-formation that is equipped with legislative powers, asserts standards of accountability and injects transparency. It is still, in overall terms and despite obvious progress, less developed in these functions than are parliaments in democratic states. It is not based on a parliamentary - neither is it based on a party model of democracy. Partly due to this it has been able to develop certain rather unique deliberative qualities. In representational terms it is also the only body that represents the entire populace of the EU. To what extent is it able to foster democracy in the EU?

 

The EP � audit democracy?

The EP is not a full-fledged parliament in a legislative sense. It has however developed a particularly important surveillance role and can usefully be termed an instance of audit democracy. This term can denote a type of strong public that promotes democracy through its monitoring and stock-taking role more than through its decision-making one. First, as the EU is still very much an entity in the making, the EP takes stock of and seeks to clarify its constitutional status and essentials. It is still an entity that �dear not speak its name� � and an entity whose fundamental telos is still not established (Weiler 1999a). The EP has long propounded the need for a European constitution and has formulated several draft constitutions. [9]

Second, the EP has actively and consistently taken stock of the democratic status of the EU. Part of this effort has been oriented outwards, for instance to the Commission and part of it has no doubt been to promote its own institutional role. It asserts that the legitimacy of the EU has to be based on a dual principle of representation: the EU as a union of states and as a union of peoples (EP Background Information: 06-12-2000:1-2). In institutional terms this would entail an EP that is equal to the Council. The EP has also long argued that the democratic deficit of the EU is to a large extent a parliamentary deficit (Neunreither 1994:299). As the entity with the greatest potential to become the foremost � but far from exclusive - embodiment of the peoples of Europe, the EP has been a core actor in the promotion of democratic legitimacy within the EU, in particular since the 1980s (Neunreither 1994:302). The EP actively spells out general standards of legitimate governance and develops specific proposals for how these can be met, although its absence from the treaty-making process does leave it in the role of stock-taker.

Third, the EP has consistently taken stock of the status of human rights, both inside the EU and in other parts of the world (Alston and Weiler 1999:42-5; Corbett et al. 2000:273-5). The means include annual reports on human rights in the world (since 1983); debates; resolutions; refusal to assent to external agreements where serious human rights issues are involved; increases of funding for human rights issues; sending of election monitors; parliamentary delegations; and constant prodding of the Commission and Council to adopt human rights oriented policies. Two EP committees address human rights issues, the Committee on Civil Liberties and Internal Affairs Committee and the Sub-Committee on Human Rights of the Committee on Foreign Affairs, Security, and Defence Policy.

The heightened role of the EP within the institutional structure of the EU � in itself and through the organisation and actions of the EP � has been important to the heightened commitment to democracy in the EU: �The existence of a body of full-time representatives in Brussels, asking questions, knocking on doors, bringing the spotlight to shine in dark corners, in dialogue with their constituents back home, makes the EU system more open, transparent and democratic than otherwise would be the case.�(Corbett et al. 2000:6).

 This development does not occur through the EP alone. It is given impetus by the links � formal and informal - between the EP and national parliaments. Formalised co-operation takes place through such bodies as the Conference of the Parliaments of the Union (Assizes); the assembly of the WEU; and the Conference of European Affairs Committees (COSAC). COSAC has met twice a year since its establishment in 1989. COSAC does not have decision-making power � it is merely a deliberative body (Blichner 2000:152). Other important links are co-operation between EP committees and European Affairs Committees in national parliaments/legislatures, as well as among political groups. The EP has taken several steps to keep national parliaments updated on the EU legislative agenda as well as during the various stages of the legislative process (Neunreither 1994:310).

These intermediary bodies help tie the strong publics together. The emergence of the EP as a strong public also has spill over effects on and helps spur general publics. Elections to the EP are one such aspect of fostering European debates during electoral campaigns, but their effectiveness in building such links is greatly stymied by the fact that national concerns continue to dominate the elections to the EP. The absence of truly European political parties also makes this link weaker and more tenuous than is the case with national party systems.

The EP does play an important role in further democratising the EU but it can certainly not do this alone and is highly dependent on other actors. Perhaps somewhat surprisingly, one such set of actors may be courts.

 

Courts as strong publics?

The general view in political science is that courts � in particular high courts - constrain the role of representative bodies. This question is important given the central role of courts in fostering integration in the EU. It is widely held that, much of the impetus for the European integration process, is provided by Courts and the legal system (Weiler 1999a, Frankenberg 2000). The initial legal system was derived from treaty-based law. Over time this has emerged into a quasi-constitutional legal system based on a set of fundamental principles. An important point is that in the EU the general principles of EC law are to a great extent judge-made. In what sense are courts strong publics and what are their effects on democracy?

There are certainly aspects of Courts that are reminiscent of strong publics. They institutionalize will-formation through interpretation, rule application and rule adoption and in this sense act as decision-makers. They are also vital embodiments of procedurally regulated deliberation, in the sense of giving reasons and justifications. In institutional terms, the judicial procedures regulate the topics and the questions that may be brought up, the use of time, who the participants are, the distribution of roles etc., and the judge as a presumed neutral third party controls that the norms are interpreted correctly and complied with (cf. Dworkin 1986). These procedures delimit the access of premises, ensure unambiguous and binding results, and connect argumentation to decision-making. The judicial procedures, then, compensate for the fallibility of communicative processes and improve their incomplete or quasi-pure fairness of procedure (Alexy 1978/89:179). Courts establish rationales, as well as assess norms and rules, in terms of their legal and normative validity. There is a tension here between legality and legitimacy as judges decide according to the code legal/illegal but cannot themselves set the criteria for the code. The structure of legal reasoning relieves the judges of certain concerns and opens up for inputs from other spheres of action (Luhmann 1995:338). Whilst the public reason giving provided by Courts does provide those affected with a feedback mechanism and an intake through which to challenge the Court�s ruling as well as the norms and justifications involved, the terms may be largely self-referential or they may refer to more general principles. The reasons provided by Courts in their rulings alert the public to what the Courts consider as operative legal standards. Courts are deliberative bodies but the structure of the legal system makes discourses prone to becoming self-referential and confined to norm-application. This is one limitation of courts as strong publics in a deliberative sense. Related to this is the general lack of representativeness. Judges are not elected nor does the legal discourse include all those potentially affected by a norm. This can be somewhat compensated for insofar as the legal system is based on and oriented to human rights, and insofar as the laws are made subject to public scrutiny and deliberation in representative bodies such as parliaments.

One of the peculiar features of the EU is that  �(t)he national courts and the European Court are integrated � into a unitary system of judicial review�(Weiler 1994:515). The system that has emerged is one in which national level courts � in particular lower-level ones - have become parts of the sources of law that national judges draw on. One source of this convergence has been the role of the legal language itself; �the language of reasoned interpretation, logical deduction, systemic and temporal coherence � the artifacts that national courts would partly rely on to enlist obedience within their own national orders.�(Weiler 1994:521) Whilst there are other important explanations as well, this convergence raises the prospect of the emergence of a self-referential legal community that is largely immune to external political inputs. The search for a common code of conduct, for a coherent legal system may be conducive to democracy in the EU, provided there is a strong onus on basic rights.

 

Courts and democratisation in the EU

The ECJ has played a central role in fostering rights developments in the EU. Through its emphasis on human rights promotion and entrenchment it has fostered democratisation in the sense that the interests of the individual have been promoted both with regard to their private and public autonomies (although the rights offered EU citizens do not ensure their formal status as authors of the laws of which they are bound).  Alston and Weiler note that �a strong commitment to human rights is one of the principal characteristics of the European Union� The European Court of Justice has long required the Community to respect fundamental rights��(Alston and Weiler 1999:6).

Article 7 of the Amsterdam Treaty stipulates that certain of the rights of a Member State that violates human rights in a �serious and persistent� way can be suspended. This thrust is driven partly by the convergence of legal systems at different levels of governance. The Charter of Fundamental Rights of the European Union � if it becomes binding � would be an example of such convergence of national constitutional traditions, ECJ-law and ECHR-law.

The ECJ and national courts have contributed to spur a more fundamental academic and politico-legal debate on the role of the EU. One of the most prominent examples is the German Constitutional Court�s Maastricht Treaty ruling. The principles of polity formation that this ruling presented have been widely debated � and the ruling has been important in spurring debate on the democratic deficit and legitimacy of the EU. The recently pronounced Charter, whose formal status is to be determined by 2004, could spark a similar type of debate.

The ECJ has also contributed to strengthen the role of the EP within the institutional system of the EU. Its contribution to the strengthening of the supranational bodies of the EU  is part of its larger role in constitutionalising the EU through securing political agreements, entrenching procedural norms and citizens� rights, and strengthening the supranational component of the EU. However, the ECJ as the EP is largely excluded from pillars II an III, which weakens their individual and joint role as strong publics. The European Convention of Human Rights (ECHR) (supported by the UN Convention) has greatly contributed to the emergence of an embryonic European civil society. The ECHR bolstered by the activities of the Court has established and entrenched a set of human rights that in particular help sustain the private autonomy of the citizens of European states. Private autonomy is essential to the protection of  citizens from state incursions. This process has been aided by the democratic and constitutional character of Western European states. Some states have monist systems and the rest have incorporated (or are in the process of doing so) the ECHR into their domestic legal systems. The net effect is a convergence of legal systems, which further entrenches human rights protection and promotes a European civil society.

 

IV.   Conclusion

Strong publics inject the logic of impartial justification and reason giving into the EU system. To varying degrees the bodies assessed here assert standards of democratic governance and empower citizens in the process. The strong publics in the EU are deeply affected by the EU as an entity that is still in many fundamental respects in the making. They contribute to its shaping and are also deeply shaped by it.

The EU is less the embodiment of a coherent system and more of a complex mixture of a parliamentary system and a regulatory structure. These aspects to some extent conflict and to some extent supplement each other.

The system of Comitology helps ensure the continued influence of the Member States in the EU but also changes preferences and shapes identities and thus contributes to deliberative supranationalism. In doing so it retains the strong executive imprint of the system. But the system of Comitology also helps offload the EP as the site of interest representation and through taking care of those matters that require specialist expertise. The deliberative quality of Comitology makes this an important asset. Comitology is a means of handling complex issues of risk regulation that representative systems are inadequate to address.

The EP is a deliberative body that has obtained stronger decision-making teeth in recent years. It cannot be assessed by conventional party system standards - neither by conventional standards of representative government. The EP seeks to foster discussion, ensure rational and transparent decision-making, and promote the development of a more representative EU system. Albeit it has become an important legislator, its role in shaping the constitutional and institutional development of the EU is still more that of an auditor than originator or constructor. Taking heed of the special nature of the EU we have designated the role of the EP as one of fostering �audit democracy�.

Courts have played a central role in the emergence of the EU and whilst in some important respects constrained have also contributed to the promoting of democracy in the EU.

This paper has argued that it is important to think not of one homogeneous public sphere but in terms of a multitude of publics. The strong publics discussed here are part of the emergence of numerous overlapping spheres in Europe. What are emerging are networks of social and political actors, epistemic and academic communities, and social movements, many of which emerge around particular issues and topics, such as corruption, BSE, and migration. These are deliberative issue communities, which transgress the bounds of language and nation. New technologies and audio-visual spaces are also emerging - often market driven such as The Financial Times and The Economist. Such communicative spaces are not restricted to the discussion of economic issues, nor are they confined to the establishment of formal public sphere institutions such as Deutsche Welle, Euronews, and BBC world. They also entail criss-crossing networks of opinion formation at the local, regional and international level. General and strong publics have different functions, are co-existent and interdependent. Together they have contributed to the democratization of the EU by vociferous criticism of the system in place and by delineating reform proposals. They point to an emerging democratic order in Europe. They also help to underpin the thesis that popular sovereignty can only be realised in a procedural manner - through allowing for broad participation in opinion forming fora, and combined with well-informed deliberative and decision making processes in institutionalised representative and accountable bodies.

 

References

Alexy, R. (1978/1989) A Theory of Legal Argumentation. The Theory of Rational Discour�se as Theory of Legal Justification (Oxford: Clarendon Press).

Alston, P. and Weiler, J. (1999) �An �Ever Closer Union� in Need of a Human Rights Policy: The European Union and Human Rights�, in Alston, P. (ed.) The EU and Human Rights (Oxford: Oxford University Press), pp.3-66.

Beetham, D. and Lord, C. (1998) Legitimacy and the EU (London: Longman).

Blichner, L. (2000) �The anonymous hand of public reason: interparliamentary discourse and the quest for legitimacy�. In Eriksen, E.O. and Fossum, J.E. (eds.) Democracy in the European Union � Integration through Deliberation? (London: Routledge), pp.141-63.

Bradley, K. St. C. (1997) �The European Parliament and Comitology: On the Road to Nowhere?�. European Law Journal, Vol. 3, no.3, pp. 230-254

Bohman, James. 1996. Public Deliberation. Pluralism, Complexity, and Democracy. Cambridge, Mass.: The MIT Press.

Cohen, J. and Sabel, C. (1997) �Directly-Deliberative Polyarchy� European Law Journal, Vol. 3, no.4., pp.313-343.

Corbett, R. Jacobs, F. and Shackleton, M. (2000) The European Parliament, Fourth Edition (London: John Harper).

Dworkin, R. 1986: Law�s empire. London: Fonata Press

Eder, K. (2000) �Zur Transformation nationalstaatlicher �ffentlichkeit in Europa�, Berl. Soziol. Heft 2., pp.167-184.

Egan, M. and Wolf, D. (1999) �Regulatory Oversight in Europe: The Case of Comitology�. In Joerges, C. and Vos, E. (eds.)  EU Committees: Social Regulation, Law and Politics (Oxford: Hart Publishing), pp.239-58.

Egeberg, M. (1999) �Transcending Intergovernmentalism? Identity and Role Perceptions of National Officials in EU Decision-Making�, Journal of European Public Policy, Vol. 6, No.3, pp.456-74

Elster, J. (1992) �Arguing and bargaining in the federal convention and the Assembl�e Constituante�, in Malnes, R. and Underdal, A. (eds) Rationality and Institutions (Oslo: Universitetsforlaget), pp.13-50.

Eriksen, E.O. and Fossum, J.E. (eds.) (2000) Democracy in the European Union � Integration through deliberation? (London: Routledge).

Frankenberg, G. (2000) �The Return of the Contract: Problems and Pitfalls of European Constitutionalism� European Law Journal, Vol. 6, No. 3, pp.257-276

Fraser, N. (1992) �Rethinking the public sphere. A contribution to the critique of actually existing democracy�. In Calhoun, C. (ed.) Habermas and the Public Sphere (Cambridge, Mass.: MIT Press), pp.109-42.

Gerstenberg, O. (1998) ��Genesis und Geltung. Verfassung und Demokratie ohne Nationalstaat� Dialektik 3, pp.101-112.

Gerstenberg,O. and Sabel,Ch. F. (2000) �Directly-Deliberative Polyarchy An Institutional Ideal for Europe?�

Gutmann, Amy and Dennis E. Thompson. 1996. Democracy and Disagreement. Cambridge, Mass.: The Belknap Press.

Habermas, J. (1962/1989) The Structural Transformation of the Public Sphere (Cambridge: The MIT Press).

Habermas, J. (1996) Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass.: MIT Press).

Habermas, J. (1998) Die Postnationale Konstellation. Politische Essays (Frankfurt: Suhrkamp).

Joerges, C. and Neyer, J. (1997) �From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology�, European Law Journal Vol. 3, No. 3., pp.274-300.

Joerges, C. (1999) ��Good Governance� throught Comitology?� In Joerges, C. and Vos, E. (eds.).pp.311-38

Joerges, C. and Vos, E. (eds.) (1999) EU Committees: Social Regulation, Law and Politics (Oxford: Hart Publishing).

Joerges, C. and Everson, M. (2000) �Challenging the bureaucratic challenge�, in Eriksen, E.O. and Fossum, J.E. (eds.), pp.164-88

Lefort, C. (1988) Democracy and Political Theory (Cambridge: Cambridge University Press).

Lord, C. (1998) Democracy in the European Union (Sheffield: Sheffield Academic Press).

Luhmann, N. (1995) Das Recht der Gesellschaft. (Frankfurt: Suhrkamp).

Majone, G. (1996) Regulating Europe (London: Routledge).

Manin, B. (1997) The Principles of Representative Government (Cambridge: Cambridge University Press).

Michelman, F.I. 1997: �How can the People ever make the Laws? A Critique of Deliberative Democracy.� I J. Bohman og W. Rehg (red.): Deliberative Democracy. Cambridge, Mass.: The MIT Press.

Middlemas, K. (1995) Orchestrating Europe. The Informal Politics of European Union 1973�1995. London: Fontana Press.

Mill, J.S. (1859/1984) �On liberty�, in Utilitarianism, On Liberty and Considerations on Representative Government (London: Everyman�s Library),pp.69-185.

Neunreither, K. (1994) �The Democratic Deficit of the European Union: Towards Closer Cooperation between the European Parliament and the National Parliaments�, Government and Opposition, Vol. 29, No.3, pp.299-314.

Neyer, J. (1999) �The Comitology Challenge to Analytical Integration Theory�, in Joerges, C. and Vos, E. (eds.), pp.219-38.

Rawls, J. (1993) Political Liberalism (New York: Columbia University Press).

Scharpf, F. (1999) Governing in Europe � effective and democratic? (Oxford: Oxford University Press).

Schmalz-Bruns, R.(1999) �Deliberative Supranationalismus: Demokratisches Regieren jenseits des Nationalstaates�, Zeitschrift f�r Internationale Beziehungen, Vol. 6, No.2, pp.185-244.

Schmitter, P. C. (2000) How to Democratize the European Union (Oxford: Rowman & Littlefield).

Schlesinger, P. and Kevin, D. (2000) �Can the European Union become a sphere of publics?� In Eriksen, E.O. and Fossum, J.E. (London: Routledge), pp.206-29.

Sunstein, C.R. (1988) �Constitutions and Democracies: an Epilogue�. In Elster, J. and Slagstad, R. (eds.) Constitutionalism and Democracy (Cambridge: Cam�bridge University Press), pp.327-53.

Taylor, C. (1995) Philosophical Arguments (Cambridge, Mass.: Harvard University Press).

Vos, E. (1999) �EU Committees: The Evolution of Unforeseen Institutional Actors in Euroepan Product Regulation�, in Joerges, C. and Vos, E. (eds.), pp.19-47.

Wallace, H. (1993) �Deepening and widening: problems of legitimacy for the EC� in Garcia, S. (ed.) European Identity and the Search for Legitimacy (London: Pinter), pp.

Weiler, J.H. (1994) �A quiet revolution. The European court of justice and its interlocutors� Comparative Political Studies Vol. 26, No. 4, pp. 510-534.

Weiler, J. H. (1999a) The Constitution of Europe: "Do the New Clothes Have an Emperor?" and other essays on European integration (Cambridge: Cambridge University Press).

Weiler, J. H. (1999b) �Epilogue�, in Joerges, C. and Vos, E. (eds.), pp.339-50.

Wessels, W. (1999) �Comitology as a Research Subject: A new Legitimacy Mix?� In Joerges, C. and Vos, E. (eds), pp.259-69.

Z�rn, M. (2000) �Democratic Governance Beyond the Nation State: The EU and Other International Institutions�, European Journal of International Relations Vol. 6, No. 2, pp.183-221.