ARENA Working Papers
WP 02/35


Europe at a Crossroads -

Government or Transnational Governance?


Erik Oddvar Eriksen and John Erik Fossum



Economic globalisation fosters transnational systems of governance that are seen to threaten nationally based systems of democracy. These developments raise several questions, both of a theoretical and of an empirical nature. First, what are the prospects for democratising transnational governance structures? In other words can democracy be disassociated from government? Second, what is the role of the EU � is it a transnational governance system or a fledgling system of government? Addressing these questions will help shed light on the third and final concern, namely, what is the democratic quality of the EU? The focus is on selected institutional aspects of the EU pertaining to Comitology, Courts, the European Parliament, and aspects of the process of constitution-making. Are these bodies representative of transnational governance, or of government? What are their contributions to democratizing the EU?

I.   Introduction [1]

Economic globalisation poses problems for national democracy. Decisions are increasingly made in contexts well beyond national control, and the range of policy options available to national decision-makers is greatly narrowed. Corporations evade national jurisdictional control and taxation. Transnational networks, committees, special agencies, and other bodies make decisions and regulations with profound consequences for social interests - beyond popular control and sanction. Global private regimes increasingly produce law without any legal and political authorization. The de-nationalization of politics threatens the core elements of liberal government, as sovereignty is fragmented and as vital conditions for efficient governance are no longer subject to national control. Political boundaries are becoming increasingly permeable. Less democracy - more market - is the overall implication of this scenario. Obvious manifestations of this trend are the WTO, NAFTA, and ASEAN Free Trade Area as well as other free market regimes.


Is this process global and does it have system-wide implications? One way to think of this is to see it as a fundamental change of steering media, i.e. market regulation replacing other types of regulatory mechanisms more directly related to democracy. The power of money supplants political power. [2] The nation-state was based on a mix of market-facilitating and market-correcting measures. This entailed a significant element of closure to the world around it, a closure that included economic, political, legal and cultural factors. The present situation is one in which states are opening themselves up to a globalizing world, along all these dimensions, but where the pattern of opening is shaped and conditioned by the logic of the market, as embedded in systems of transnational governance.


Globalisation, however, is a multifaceted and even multidimensional process, which also generates and promotes countervailing forces to marketisation. Can the deregulatory opening we are now experiencing therefore also be followed by a re-regulatory closure, which can re-establish democracy as sovereign popular rule? Is the EU one such case?

Whilst often couched as a result of economic globalisation and market-driven opening, the EU is a dynamic system and is presently undergoing deep changes - with regard to range and scope of operations, institutional apparatus, effects on Member States, and commitment to democracy and legitimacy. It is also based on representative principles. European citizens are directly represented in the European Parliament, whereas the Member States are represented in the European Council and the Council of the Union, and the regions are represented in the Committee of the Regions. These principles are unequally institutionalized. The system in place favours the representation of Member States over that of citizens. But then it is also a contractual arrangement made up of member states, not an arrangement constituted by its people (Grimm 1991) However, 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 also been raised. There are important attempts to further entrench human rights at the European level as well. The various measures that have been taken may fall well short of the standards. But such an overall assessment also depends on the standards, i.e. whether they are realistic and defensible.


The EU is often couched as a system of transnational governance. First, is �governance� democratic, or not? If not, does further democratisation of the EU require transition to a system of authoritative decision-making akin to government? Second, does the EU already possess important system traits akin to government? To phrase it differently, how far along the government system path has the EU actually proceeded? Proper responses to these questions will shed light on the democratic quality of the EU (and the link between democracy and transnational governance). This chapter provides a sketch of an answer, as a complete assessment would require an in-depth assessment of the government versus governance components of the legal-constitutional system (principles and practice), the system of institutions, and inter-institutional relations (horizontally and vertically).

In the next part, Part Two, we clarify the meaning of transnational governance and government, and derive a set of criteria through which to assess each. In Part Three, we discuss the role of a set of EU institutions in order to establish whether they comply with the basic requirements of transnational governance or with the criteria of government. The focus is on Comitology, Courts, the European Parliament. In this analysis we have excluded the Council, which is the main legislator but is foremost an intergovernmental body.

In part four we analyse the Charter of Fundamental Rights in the EU and the Constitutional Convention. Our approach is to assess their role in institutional and procedural terms, i.e. we assess the rules and norms of operation, and the manner in which they are organised, in order to clarify their status with regard to the standards associated with rights based government in the EU. Part Five holds the conclusion.

II Government or governance?

It is widely held that governing is no longer an act foremost undertaken by states. The claim is that states are increasingly supplanted, by networks and other arrangements associated with transnational governance. The relationship between state and non -state actors in such networks are non-hierarchical and decisions are often reached by deliberation rather than through bargaining and voting. Is this an alternative to representative government?

Conceptualising Government

Government refers to the political organization of society, or in more narrow terms, the institutional configuration of representative democracy and of the state. The state is a political institution and an organisational form, whose basic rationale is to establish and maintain order and security. To Weber the state is �a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory�. (Weber [1948] 1991: 78) In principle, the state is sovereign, and autonomous. It is in charge of its own agenda, and controls the territory through a hierarchical system of communication, command and control. Its sovereignty is encoded in international law and the world is divided into a system of states. As there is no legal authority above the sovereign state that can ensure compliance with international law, interstate relations are marked by anarchy. The principle of state sovereignty presupposes that each state recognizes the others� sovereignty, and that all states refrain from intervention in the affairs of other states. This system is generally referred to as the Westphalian Order.


Nation refers to a specific type of community based on a form of solidarity and a sense of community and we-feeling. A nation is an invented or even imagined community [3] , i.e. some symbols and aspects of a community�s past are highlighted at the behest of other: �Only the symbolic construction of �a people� makes the modern state into a nation-state.�(Habermas 2001: 64) The forging of a nation reflective of �a people� is seen as an essential aspect of the cultural substrate that is required for people to regard each other as neighbours and fellow countrymen. The nation, due to its deeper ties of belonging and allegiance, makes possible the transformation of a collection of disjunct individuals and groups into a collective capable of common action. A sense of solidarity and a common identification make for patriotism or �love of country� and make up the �non-majoritarian� sources of legitimacy.


A system of government has, as every system of collective decision-making, to respond to both efficiency and legitimacy requirements. It has to achieve results and to achieve them in a correct manner. In normative terms these are very different sets of requirements but they are ultimately co-dependent. Capability bereft of legitimacy is unstable and inefficient. Legitimacy without capability is futile. The nation-state provides a particular response to each criterion and to their interrelation. Efficiency is territorially bounded in the sense that the scale and the scope of the state is the relevant parameter. Legitimacy is nationally constrained in that the laws and regulations are filtered through and assessed in relation to the ethical self-conception of the people as a nation, steeped in history, tradition and way of life. The nation-state framework places constraints on legitimacy and efficiency because the ultimate authority to make binding laws rests with a territorially confined and culturally homogenized people. This makes it difficult to shift the boundaries of the citizenry; territorial borders cannot be altered by democratic means.  In a democracy the people cannot determine who the people are, i.e. establish viable criteria for exclusion and inclusion. [4]


The limitations regarding capability and efficiency come to the fore as the nation state is facing trans-border problems such as capital flight, large-scale population movements, pollution and the like. In a globalized context, the scope of social organization no longer appears to coincide with national territorial boundaries. Increasingly, political bodies beyond the nation state are required to cope with this new problem scenario, but democracy up to now has relied on criteria that are derived from the nation. Consequently, there is need for a conception of democracy that is decoupled from the nation state model. Today, the process of globalization helps bring forth the emergence of new forms of governance. What notions of legitimacy and capability are these based on, and do they represent democracy beyond the nation state?

 Transnational Governance: Pollyanna only?

Three revolutions; in telecommunications, in transportation, and in the formation of global financial markets, have made capital and information available everywhere, and made possible worldwide mass media and cultural production (Held 1995). Financial and banking centres become fused into one integrated network. Executive power � private and public - has increased, at the same time that the role of the state as a hierarchical and democratic collective decision-making body, imbued with territorial and social control, has weakened. Hence, liberal democracy is facing problems:


For if state sovereignty is no longer conceived as indivisible but shared with international agencies; if states no longer have control over their own territories; and if territorial and political boundaries are increasingly permeable, the core principles of liberal democracy � that is self-governance, the demos, consent, representation, and popular sovereignty � are made distinctively problematic. (McGrew 1997:12)


These changes have systemic implications, as they not only signify the spread of the market economy world-wide, but also spur the development of a new international political order. At the international level the establishment of the UN, the OSCE, the WTO, the World Bank, and the IMF is important. These bodies indicate, that it is in the economic realm and in the area of human rights, that the pattern of institutionalisation of international law has proceeded the furthest.


The WTO is often touted as a further step in the globalisation through law, in the economic realm. It is a more formalised system of co-operation based on adjudicative resolution of disputes than its forerunner, the GATT. This international body of (quasi) law is further entrenched in regional associations and helps sustain and is sustained by these. These are the NAFTA in North America, the ASEAN Free Trade Area in South-East Asia, and the EU in Europe. In Europe the latter has become an important decision making body, with unprecedented collective problem-solving and conflict resolution functions. In addition, new governance structures made up of (I)NGOs, networks, social movements etc. contribute to the establishment of a trans-national civil society that provides new channels of influence and control. Hence the concept of governance, which is used to depict new forms of transnational decision-making.

Governance is not political rule through responsible institutions such as parliament and bureaucracy � which amounts to government � but innovative practices of networks, or horizontal forms of interaction. It is a method for dealing with political controversies in which actors, political and non-political, arrive at mutually acceptable decisions by deliberating and negotiating with each other. Governance is based on a variety of different processes with different authority bases, and highlights the role of voluntary and non-profit organisations in joint decision-making and implementation, and the semi-public character of modern political enterprise. Today, these structures span across boundaries; the bounds are far more porous; and the actors are less tied to and dependent on territory. Transnational governance is marked by a proliferation of organizations where no single organizing principle dominates.

�If the absence of an ultimate authority signified the presence of anarchy during the era of hegemonic leadership and superpower competition, such a characterization of global affairs is all the more pertinent today.� (Rosenau 1997:151)


A hallmark of transnational governance is shifting loci of authority, and which may converge, overlap, or diverge. It also entails shifts in the relative salience of political, legal, economic and social factors.


The term governance is used to depict multiple and rapidly growing networks of international communication and transgovernmental regimes, new forms of diplomacy and transnational civil society. [5] These may be regarded as series of experiments in democracy, as they constitute control mechanisms beyond government. There is today a remarkable expansion of collective power to handle new forms of risks and vulnerabilities. Numerous channels of influence help produce a wide range of steering mechanisms. These exist on different levels - some are sponsored by states, and others are not. Such mechanisms range from NGOs and social movements, to Internet, cities, and micro regions (Rosenau 1998). New governing regimes are emerging based on various decentralized and co-operative solutions. They may be seen as established to monitor the effectiveness of agreements:  �These regimes cannot directly control the effects of globalisation: they attempt to enable the normative constraints consistent with equality of effective freedom rather than with equal access to agency freedom over the levers of economic process� (Bohman 1999:509).


The term transnational governance is thus used to describe the emergence of new forms of legal and/or political collaboration of public and private actors at international and regional levels. Here the terms governance and transnational, are conjoined to create a conceptual apparatus to caption the far more fluid post-Westphalian world, a world where territoriality and functionality do not cohere. No one possesses absolute power within these structures, therefore they may be functional equivalents to democracy due to the logic of checks and balances, Rosenau maintains. Pluralism and dis-aggregation are seen as conducive to democracy in a multi-centred world of diverse non-governmental actors. However, in addition to the problem of limited capacity to influence and change actual policies, there is the added problem of biased representation and inequality. The legitimacy problem of (group) pluralism prevails. It is even more �pollyanna� than polyarchy (Rosenau 1998:51). These private law regimes amount merely to governance without democracy, because there is little chance of equal access and public accountability.(Rosenau and Czempiel 1992, Eriksen 2002) But the pattern is uneven: More firm types of co-operation have emerged, as well.

The EU � A System in Motion

Globalization entails growing interconnectedness of states and of societies. These are tied together through a multitude of rapidly growing networks of communication, the emergence of supra-national regimes, and even a transnational civil society. On regional, international and global levels regimes have been created beyond the nation state, and, at least partly, these have compensated for the national loss of governance capacity (Z�rn 1998). The growth of international law, the institutionalization of international courts and of supranational political institutions, point not only to world-wide interconnectedness but also to �global� [or perhaps better, regional] governance, of which the EU is the most prominent example. However, with regard to the EU, analysts disagree as to whether this is a system of transnational governance or a fledgling system of government.


The EU is now often described as a system of transnational governance, beyond intergovernmentalism and more complex than the somewhat simplistic version of supranationalism espoused by neo-functionalism. Recent scholarship conceives of the EU as a system of multi-level governance, which consists of multi-tiered, geographically overlapping structures of governmental and nongovernmental elites. [6] Governing is no longer exclusively statal, and the relationship between state and non-state actors is non-hierarchical. �(T)he key governance function is �regulation� of social and political risk, instead of resource �redistribution�� (Hix 1998:39, cp. Majone 1996). To depict the EU as a system of multi-level governance does not amount to advocating a coherent and uniform alternative theoretical position on the EU and the integration process. What has come to be known as the �new governance agenda� is unified in its rejection of the nation-state bias, and in its conception of the EU as a polity sui generis, albeit it is not unified in the conception of what the entity � the EU � really is, nor how it can be conceived in theoretical terms.


There are indications that the EU has moved beyond an intergovernmental and even transnational system of governance. The �direct effect� principle of EC law, premised on the notion of EC law as �higher� European law (that is measures within the first pillar) profoundly affects the Member States, and the European Court of Justice (ECJ) claims competence-competence. The supranational features of the EU have become more pronounced and European law is considered binding.


Some analysts who work from a deliberative politics perspective depict the EU as a case of deliberative supranationalism, where this is a defining mode of transnational governance (Joerges and Neyer 1997, Cohen and Sabel 1997). This can make up for some of the defects in the democratic state. For one, a deliberative transnational system provides inclusiveness, accuountability and a range of new solutions to the problem of borders and designation of people. On the one hand, trans-national deliberative bodies may raise the information level and contribute to rational problem-solving, because they include a range of different parties, and often adhere to arguing as a decision-making procedure, not voting and bargaining. To various degrees, such bodies �also to be conceived as epistemic communities - inject the logic of impartial justification and reason-giving into transnational bodies of governance. Deliberation contributes to a more rational way of solving problems and to increase the epistemic quality of the reasons in a justification process (cf. Bohman 1996:26f.).


On the other hand, deliberation is not enough. When law is not laid down in an authoritative manner and made equally binding on every part, lack of commitment ensues. Law complements morality (Habermas 1996a, Apel 1998). When non-compliance is sanctioned, and the incentives for strategic action are taken away, actors may act in a moral manner, without having to face the danger of losing out. Actors comply more easily with interest regulating norms when they are subject to a higher authority that legislates and sanctions non-compliance unilaterally. Thus, law is not only needed to pacify the state of nature between the sovereign states but also to get a civil society based on deliberation going. This is the reason why a post-national system of rule has to be based on law. The question is whether this also implies the adoption of those prescriptions that are associated with government rather than with governance. But can a system of popularly authorised rule � government � be constructed in such a way as to be freed of �nationalistic� presuppositions? In other words, can government be reconstructed from a deliberative perspective?

Reconceptualising �government�

If government presupposes a common pre-political identity embedded in a clearly defined demos, then the EU does not qualify as such. The question that the EU raises is whether a common form of allegiance and attachment can be fostered or nourished. In other words, how do modern multicultural societies hang together? The deliberative approach posits that allegiances can be created. A demos and a common will are not mere pre-political conditions and presuppositions of collective self-governance and democracy, they can also be forged in inclusive communicative settings. The procedural arrangements of modern constitutional states can themselves bear the burden of legitimation, as people are involved in comprehensive opinion and will-formation processes. Further, it provides a model for how allegiances are formed, in that it emphasises the role of political-legal integration. This notion of allegiance formation is ultimately steeped in the constitutional order, which claims to be binding on all subjects, and to be approved by the various groups within society, each with its particular and distinctive identity and value. Basic requirements are respect for democracy, difference, pluralism, human rights, vulnerable identities, etc. Constitutional democracies, then, do not only express certain values or conceptions of the good society, they also highlight a conception of society based on the rule of law. Different groups continue to live together and resolve conflicts because they agree on the basic rules and procedures that claim to secure fair treatment of the parties. In modern pluralist societies, only law can legitimately ensure solidarity with strangers (Habermas 1996b:1544).


The first requirement of government then is a democratic constitution with a bill of inalienable rights, and provisions that delimit the powers and competences of the various branches of government. The latter pertains to a division of powers and responsibilities, along both horizontal and vertical lines. The institutions undertake different functions, yet are ultimately co-dependent. A delineation of powers and responsibilities is needed, to protect their integrity, to prevent accumulation of power, and to ensure co-operation.


Second, the constitution is upheld by the successful operation of a set of institutions. Such are popularly elected bodies that can translate values into laws and bodies that reliably implement such into decisions � subject to popular oversight and scrutiny. Institutions ensuring public deliberation and collective decision-making through bargaining and voting procedures are required. The legislative process also needs a legally based overseer, a set of courts to protect the democratic process.


Third, is the requirement of representativeness. Representation contributes to refine and enlarge opinions, by passing them through the deliberate concern of chosen members of the demos. 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). Implicit in this notion of representation, then, is accountability, which entails that all those who are potentially affected by decisions will have their say and/or are able to dismiss incompetent leaders. The representatives do not only have to justify their decisions to their own electorate, but also to the representatives of other electorates.


The crux of government, then, is not state in its collectivistic, nationalistic reading, but democracy. A true republic presupposes democracy, but democracy does not presuppose the state. �Verfassung und Demokratie sind rechtlich nicht an den Staat gebunden� (Brunkhorst 2002:223). A constitution embodies the concept of demos� right, i.e., an inclusive communicative, will and action community of affected that mutually give one another rights to participate (Augustin 2000, Habermas 1996a). These insights have informed the development of the criteria we apply in our assessment of the prospects of government in the EU.

III. The EU � a government in the making?

To what degree does the EU exhibit traits of such a system of government? First we address comitology, which is held to be the prime example of deliberative supranationalism.

Comitology as a new political order [7]

Literally hundreds of committees in the EU operate within the confines of delegated authority of the Commission from the Council. They are vital in the process of shaping and adopting legislative acts. [8] These committees are made up of representatives from the Member States and are chaired by Commission officials. This system of committees has a strong transnational imprint. For one, it was designated to constrain supranationalism, as it has been a vehicle for the Member States to exercise control and oversight. Further, the committee members are experts, representatives from affected interest groups, and national civil servants (who are usually selected by their respective national governments). [9] Its field of remit has expanded. Comitology initially covered such areas as agriculture, trade, and customs policies but now also comprises amongst others research and development, environmental affairs and telecommunications.


Comitology is network rather than hierarchical government. But 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. This trait, combined with its deliberative style and inclusion of many of the potentially affected parties, have prompted suggestions that Comitology may herald the onslaught of a new political order, akin to deliberative supranationalism, and which may also potentially �repair� the democratic deficit. Whith 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 deliberation and decision-making, and as a means of getting support from all parties.


It may be that Comitology, when viewed in isolation, comes down to administration without government (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 illegitimate and threatening to democracy. The knowledge base of political decisions - hence their cognitive-instrumental quality - is of utmost importance to legitimacy (cp. Bohman 1996:162).


Further, in modern complex societies delegation is part of the lawmaking process due to the knowledge and information that are needed for handling intricate matters in a practical manner. It is mainly 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, as it also has to find viable answers to politically sensitive and normatively salient questions.


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 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 correct decisions in cognitively demanding cases. It is as nonsensical to hold a vote on the presence of mad-cow disease, as it is to bargain over the levels of dioxin in foodstuffs. Such may actually take place, but bargaining is not the proper procedure to reach decisions in these matters because we cannot know whether they are right. Only truth-seeking or scientific discourse can make for correct decisions in such cases.

In the shadow of the law

Comitology establishes a framework for co-operative problem solving by granting relative decisional autonomy and by enabling discussion on different aspects of the cases at hand. Committees often enjoy extensive freedom of discretion and are not structured to accommodate interest aggregation (Gerstenberg and Sabel 2000:28ff). Within this institutional architecture, innovation, rational 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 complement 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). Hence Committees are epistemic communities but are they also conducive to government?


The committees are subject to vociferous criticisms, due to the fact that they are not properly authorised and subject to public control. The EP has been opposed to the Comitology decision, [10] due to the lack of transparency and due to the lack of procedures for recalling Comitology decisions.  When assessed by means of a simple majoritarian model of democracy, Comitology is undemocratic, as it is neither subjected to strict national control nor to control by proper EU authorities. The problem is more complex when assessed by means of the deliberative model of democracy. This model considers equal access and public debate as basic principles 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 often not conferred upon decision-makers according to any 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 also speak in favour of another view on Comitology committees. Legislative authority is not merely conferred on non-authorised bodies. While the members often do not operate with fixed mandates they act 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).


To some extent this system does comply with the criteria of government as it decides on the basis of a legal order and there is participation of representatives of affected parties, albeit the latter is weakly developed in terms of accountability. The Commission has, however, recently adopted a code for �good administrative behaviour� [11] which is intended to secure equal treatment, objectivity, transparency and the duty to justify decisions. A similar commitment framed as �The right to good administration� is included in The Charter of Fundamental Rights proclaimed in Nice 2000 (Article 41, section 2) - as �the obligation of the Administration to give reasons for its decisions� and is also asserted in the recently published Commission White Paper on European Governance (2001) [12] , which underscores the need for close contact with civil society and accountability etc.


Comitology may be seen as 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.


On the one hand, Comitology, then, is an intrinsic part of a modern system of governance and one equipped to handle complex issues in a rational manner. It is efficient in its ability to adapt to new problems and exigencies in pluralist settings where clear-cut control and sanctioning mechanisms are lacking, as are pre-established solutions and self-evident rational answers. In such complex settings, preferences cannot 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. On the other hand, the legal basis of the committee system speaks to the government model. Comitology is constitutional in so far as we can speak of a constitution in the EU. This we will address later. But it is unconstitutional in the sense that it does not respect the division of competencies as they are entrenched in the nation state. Comitology is not subjected to properly authorised external control. It is weak in terms of accountability and representativeness. However, the latter is also due to the inadequately entrenchment of an authoritative system of rule in the EU in general.

The European Parliament �a �government� installer?

Parliaments constitute an essential part of government, as they �represent the people�. The parliament, constrained by constitutional provisions and public deliberation, is authorised to lay down the law and make it binding on everyone. Deliberation is intrinsic to the principle of representation that parliaments are based on. This 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 was 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, due largely to institutional reasons, such as the pillar-structure of the treaties. To illustrate, within pillars Two and Three, (CFSP and JHA) it is consulted, but does not have decision-making power. Within its realm of competence, however, 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. It has also revealed willingness (and some ability) to �throw the scoundrels out� - one of the main indicators of parliamentary power. [13]


As noted, the EU lacks a coherent constitutional doctrine pertaining to the division of competences and to accountability. This also shows up in the role of the EP. The EU is not a full-fledged parliamentary system, as no cabinet emanates from the EP, and as the Commission is more of an expert body than a politically accountable government. The EP also has no formal role in the process of treaty-making/change. Hence, insofar as the treaties make up a central part of the constitutional structure of the EU, the EP has no role to play in constitutional amendment, which is thus formally speaking an intergovernmental matter.

That said, over time, the role and salience of the EP within the EU�s decision-making structure has increased, and this is reflected in the inter-institutional relations and decision procedures. From a deliberative perspective, it also 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 and gives Parliament more influence, as well as is the decision procedure that requires the greatest amount of deliberation and reason giving. 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).


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 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. 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.


The EP enjoys a great measure of autonomy in setting its own agenda (albeit as we have seen, 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.


True representativeness does hinge on equal opportunity to express oneself by all those potentially affected by a norm or a decision, and do so in a language they are 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 Member State countries, 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, is culturally self-reflective, and is compelled to argue in more universalistic terms.


The emergence of the EP within the institutional structure of the EU can be depicted as that of an increasingly institutionalised body of will-formation, is equipped with legislative powers, asserts standards of accountability and injects transparency. In overall terms and despite obvious progress, it is less developed in these functions than are parliaments in democratic states. It is not wholly 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 �forger of government-based democracy?

The EP is not a full-fledged parliament in a legislative sense. It has however developed a particularly important surveillance role. We have argued elsewhere that it can usefully be termed an instance of audit democracy (Eriksen and Fossum 2002). The EU is an entity in the making and the EP takes stock of and seeks to clarify its constitutional status and essentials. The EP has for a long time propounded the need for a European constitution and has formulated several draft constitutions. [14] The EP has also actively and consistently sought to establish a set of clear and coherent constitutional principles on which to base the EU. Its position is that the legitimacy of the EU should 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 entails an EP equal to the Council. To the EP the democratic deficit of the EU is to a large extent a parliamentary deficit (Neunreither 1994:299). The EP is the entity with the greatest potential to become the foremost � but far from exclusive - embodiment of the peoples of Europe. It spells out general standards of legitimate governance and develops specific proposals, although its relative absence from the treaty-making process up until now has left it in the role of stock-taker.


The EP has also 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 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). The EP is a weaker decision-making body but its qualities as a deliberative body and a forum may surpass those of many national parliaments. In this and in other respects, the EP also helps spur a European public sphere.


The role of the EP in ensuring representativeness is somewhat hampered by the absence of truly European political parties. But in the last few years, parliamentarians have entered centre stage of what has now become a constitutional debate in Europe. New bodies have been established that may rectify the democratic deficiencies that were built into the traditional ones. Before addressing this we analyse the ECJ, which is, as the EP, a forger of a rights-based polity. 

The ECJ � Constitutional Court or Transnational Regulator?

Courts are quintessential ingredients of every system of government. They institutionalize will-formation through interpretation, rule application, rule adoption and sanction. They thus uphold rule and control. 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.

Not only is the Community a creature of the law, but it pursues its aims exclusively through a new body of law, Community law, which is independent, uniform in all the Member States of the Community, separate from, yet superior to national law, and many of whose provisions are directly applicable in all the Member States. Like any true legal system the Community legal system needs an effective system of judicial safeguards when Community law is challenged or must be applied. The Court of Justice, as the judicial institution of the Community, is the backbone of that system of safeguards. Its judges must ensure that Community law is not interpreted and applied differently in each Member State, that as a shared legal system it remains a Community system and that it is always identical for all in all circumstances. In order to fulfil that role, the Court of Justice has jurisdiction to hear disputes to which the Member States, the Community institutions, undertakings and individuals may be parties.


The Court of Justice is made up of 15 judges and 8 advocates general. They are appointed �by common accord of the governments of the Member States�. Their tenure in office is six years and is renewable. Their independence is to be beyond doubt and they must be of recognized competence. The President of the Court is selected by the jurors for a renewable term of three years. The President will direct the Court�s work and preside hearings and deliberations.
The Court is assisted in its task by 8 Advocates General. Their task is to �deliver, in open court and with complete impartiality and independence, opinions on the cases brought before the Court.� They are not prosecutors or similar types of officials.


The ECJ is a recognised adjudicator of legal disputes. This is due to the doctrine of direct effect, which positions laws made in Brussels on a par with those enacted by national parliaments, and to the doctrine of supremacy. The former means that European law is binding on every citizen regardless of national citizenship. The latter is still a contentious issue. The Court claims the �Kompetenz-Kompetenz, i.e., the competence to amend its own competence.


However, the legal system of the EU is far less hierarchical than what is generally the case with nationally based orders. In institutional terms, 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) Albeit less hierarchical, there is nothing in the logic of legal reasoning or in rule application and adoption that sets this system apart from what we associate with government. But what does this relation of legal reasoning and government consist in, in more specific terms?


Courts are 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, they 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 1978:179, Habermas 1996a).


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. The reasons provided by Courts in their rulings alert the public to what the Courts consider as operative legal standards, 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 in general. The problem of the ECJ is that many of the laws upon which it rules, are not made by the people. It is structurally limited in the sense that the norms the judges are to act upon are not made by proper legislative authorities:  �Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European communities has fashioned a constitutional framework for a federal-type Europe� (Stein 1981:1, cited in Joerges 2001:5).


However, the ECJ has played a central role in fostering rights in the EU. �In the seminal case of 1969 Stauder, the Court hinted at the unwritten general principle of fundamental rights protection as a basic foundation of Community law � [over time] the court has developed an incomplete but substantial bill of rights, although most of the time limited in its scope to economic actors. Its jurisprudence is clearly and openly founded on the European Convention of Human Rights, further refined and adapted by reference to the comparative analysis of national constitutional traditions.�(Menendez 2001:7,10) Through the increased 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). This is consistent with the general orientation of the EU. 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 violate 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 recently pronounced 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. [15] But much of the law is made by the contracting partners, not by the people. The people have got rights but they have not decided them themselves.

The ECJ has 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 less directly included in pillars II an III, which weakens their individual and joint role as governmental bodies. Two recent developments have taken us considerably closer to this latter model, albeit it is far too early to declare either as an unambiguous success. The first such development was the Charter of Fundamental Rights of the European Union.

IV. Constitutionalizing the EU?

Today, half a year after the Convention on the Future of Europe was established, it is widely recognised that the EU is involved in constitution-making. What is more remarkable, looking back in time, is the paucity of debate on a European constitution up to now. This is the more remarkable, given that many analysts state that the EU already has a material constitution. It has also been quite commonplace amongst analysts to think of the lengthy and protracted process of treaty changes, as a constitution making process. This process has had few of the traits associated with government and more with governance or even interstate diplomacy (cf. Curtin 1993). The IGC method has been labelled an elitist, closed and diplomacy-driven type of process. A process consistent with the deliberative approach to government, as spelled out above, would have to be transparent, deliberative and widely representative. Since the foremost requirement of government is constitution, it would have to have as its objective the framing of a proper constitution.

The Charter � a European Bill of Rights?

The Charter was solemnly proclaimed at the Nice IGC Meeting in December 2000 (2000/C 364/01). It contained a comprehensive list of rights, including civil, political, social and economic ones (listed in 50 articles). They are meant to ensure the dignity of the person, to safeguard essential freedoms, to ensure equality, to foster solidarity, to provide a European citizenship, and to provide for justice. The decision to seek to found the EU on a set of fundamental rights is part of the effort to forge a European constitution. Fundamental rights are also a vital prerequisite for the fostering of citizens� attachment to the EU. However, the Charter suffers from several deficiencies here. For one, as it is based on existing rights, it relies on the transnational conception of citizenship that the EU touts as European citizenship. Notes Ulrich Preuss: �Union citizenship is not so much a relation of the individual vis-a`-vis Community institutions, but rather a particular legal status vis-a`-vis national member states, which have to learn how to cope with the fact that persons who are physically and socially their citizens are acquiring a kind of legal citizenship by means of European citizenship without being their nationals.�(Preuss 1998:147) Further, the horizontal clauses in the Charter greatly restrict its scope of application, hence raising doubts as to whether it will apply to all those areas of life that are vital to the ensuring of democratic citizenship.


In formal terms the Charter is a political declaration, not a legally binding document, albeit it has already become an indispensable part of the sources of legal interpretation of rights in the EU.(cf. Menendez 2002) The Charter was written as if it were binding and is made up of many of the existing provisions in the European Convention on Human Rights (ECHR), the treaties (EU and other relevant international ones), and the constitutional traditions common to the Member States. [16]


The composition of the Charter Convention is also important. It was not only the first case of direct inclusion of parliamentarians in a process or decision of a constitutional nature, at the European level, but parliamentarians also made up the majority of representatives (45 out of 62). This stands in marked contrast to IGC-based processes, which were the sole preserve of executive officials � up to the ratification stage where parliaments (and referenda) entered. The strong presence of parliamentarians greatly added to the legitimacy of this body. The Convention�s deliberations were shaped by the fact that all the participants were legally trained. This may also have affected the outcome, in that it probably made it easier to reach agreement on a Charter essentially based on existing law.  


The Charter process was distinctly different from the previous IGC processes. Whereas IGC processes were closed and secretive, the Charter process was open and set up as a deliberative process. The drafting process ran between December 1999 and October 2000, and the Charter was proclaimed in December 2000. The timeframe was therefore quite tight. The Convention held open hearings and received written submissions (a total of 1000 such).  The Convention almost unanimously adopted the Charter. No final vote was held but participants� accounts reveal that 60 out of 62 supported it. This process did to some extent contribute to the sparking of �an authentically European�wide debate among the organizations of civil society.� The mobilizing effect of this process, however, should not be overestimated but it certainly compared favourably with the intergovernmental approach that had preceded treaty changes before (de Schutter 2001).


This example testifies to a heightened reliance on rights as a key ingredient in ensuring legitimacy. It also underlines the credibility attached to deliberative bodies, when it comes to forging proposals and decisions of a constitutional nature. Such acts are committing also in relation to future action. The Charter case has been widely deemed as so successful as to deserve repetition.

 The Convention � constitutionalising the EU?

The decision to establish a Convention on the Future of Europe was announced at the Laeken European Council, in December 2001. The Laeken Council, in its Laeken Declaration, for the first time acknowledged the constitutional character of the challenge facing the EU. The Declaration asked: �What might the basic features of [a European] constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?� (Laeken Declaration)


The Laeken Declaration also contained the open-ended mandate for the Convention, a list of 56 questions cast under six broad headings, as conceived by the Convention�s Chairman, Valery Giscard d�Estaing: �fundamental questions on Europe�s role; the division of competence in the European Union; simplification of the Union�s instruments; how the institutions work, and their democratic legitimacy; a single voice for Europe in international affairs; and finally, the approach to a Constitution for European citizens.� .�(d�Estaing 2002:10- SN 1565/02) The Convention was asked to address a wide range of questions, ranging from core principles to rather mundane and technical or institution-specific questions. The Convention was given considerable leverage to develop its own interpretation of its mandate. The self-conception of the representatives and the way it is touted is that of a constitutional convention. The Chairman, in his opening remarks to the Convention, also said that there were great stakes involved: �On one side, the yawning abyss of failure. On the other, strait is the gate to success� If we fail, we will add to the current confusion in the European project, which we know will not be able, following the current round of enlargement, to provide a system to manage our continent which is both effective and clear to the public. What has been created over fifty years will reach its limit, and be threatened with dislocation.�(d�Estaing - SN 1565/02:02) The Chairman thus underlined the need for the Convention to try to reach agreement on one single recommendation rather than merely spell out options for the IGC�2004 to consider, albeit there was no requirement on it to come up with one single option.


The Constitutional Convention largely duplicates the Charter Convention in terms of its composition (it is made up of a majority of parliamentarians (46 out of 66 voting members, and 26 out of 39 from the candidate countries)), with several notable exceptions. For one, it contains non-voting representatives from all the candidate countries, and further, among the observers, even the European Ombudsman is present. A separate Forum has been established for civil society organisations. The Convention started its deliberations in March 2002 and according to the Laeken Declaration, will complete its work within one year, i.e. March 2003.

It has recently been divided up in six working groups, each of which will deal with a set of the questions as spelled out in the Laeken Declaration. Concerns have been raised as to the transparency of these to the public, as to the ability of these to handle the constitutional dimension in a coherent and overarching manner, and as to the scope for deliberation given the overall time-frame of the duration of the Convention (Grevi 2002). The deadlines for the working groups are this Fall, which leaves roughly three months� time of plenary deliberations to produce final results. This is not a very long time, given that the Convention only meets a few days per month.   

What constitution?

The tension between governance and government permeates the Convention: its objective, structure, operations, and possible ramifications - in procedural and substantive terms. The Convention is intended to frame the debate by formulating one or several proposals. The Laeken Declaration did not commit the Convention to come up with a single coherent proposal, although Giscard d�Estaing has asserted that it ought to. Whether it succeeds in forging agreement on a constitutional proposal does affect the prospect of forging a government-type constitution because if the Convention fails to reach agreement on such a proposal it is unlikely that the subsequent IGC will succeed in doing so. Why is that? The Convention is set up as a deliberative body, with a mandate, a time-frame, and a cast of actors capable of discussing matters of principle and having opinions and views moulded and shaped over time, hence institutionally speaking, is equipped to handle the matter of forging a constitution. It is also composed of a majority of parliamentarians, many of whom, will presumably want an EU with stronger representative institutions, akin to the government version. Conversely, the IGC as institution is composed of decision-makers who are compelled to produce results within a very short time-frame. As the evidence has shown from countless IGCs, they have proven good for hammering out working agreements, through striking bargains. They are far less well equipped to handle matters of principle and of value, and how such relate to practice.

Conversely, if the Convention does come up with a coherent proposal, the assumption is that this will carry sufficient weight and legitimacy to set the agenda for the IGC. This cannot be taken for granted, however, and hinges on what kind of legitimacy is attributed to the Convention. Relevant factors relate to its degree of independence from external influence, in particular pertaining to direct influence from the most salient actors, the big states and the Council. Here there is likely to be a trade-off between legitimacy and efficiency. On one hand, the more independence it will have in relation to the most salient institutional players, the higher is likely to be its legitimacy in the eyes of all stake-holders. On the other hand, the better it reflects the core concerns of the Member States and the European Council, the key actors in the subsequent intergovernmental negotiating stage, the more likely its proposals are to win a favourable hearing during this IGC stage, i.e. the higher its putative efficiency in decision-making terms is likely to be. The point is that each Member State at this stage has the power to veto any proposal that is set forth. This is not a simple trade-off, though, as a proposal that has gone through the Convention and won acceptance, or around which a consensus has been formed, is bound to carry considerable weight in the subsequent process.


The legitimacy of the Convention is not independent of its product. If it does reach agreement, the question is what kind of constitution this will be �a constitutional treaty or a European Constitution? With constitutional treaty is meant a proposal that relies on the existing institutional arrangement, including the ambiguous relation between governance and government components that permeates this. For instance, the deliberations in the Convention thus far reveal a willingness to develop some division of competences but not entrench these in a competence catalogue. There are also proposals to strengthen the transnational component of the EU, such as for instance the proposal by Blair-Chirac-Aznar for an extended tenure for the Council President, which is likely to strengthen the intergovernmental dimension of the EU. On the other hand, the Convention appears willing to make the Charter binding, which would be a step in the government direction, insofar as the Charter qualifies as a constitutional bill of rights. But this is somewhat problematic, as the Charter has a number of built-in limitations. In its present state it would nudge the EU in a government direction, albeit not the whole way, unless the citizenship provisions were altered in the EU so as to ensure European citizenship founded on private and public autonomy.

V. Conclusion

Informed by a deliberative perspective, this chapter has examined the government versus governance features of the EU. The pretext for such an examination was that national democracy is challenged by economic globalization. Decisions are increasingly made in contexts beyond national control, and made subject to quite narrow and largely market-based criteria. But albeit less democracy - more market is often held as the inevitable outcome of this process, globalization is a multifaceted process. There is a development of a multitude of networks of international communication, that are embedded in transgovernmental regimes, fairly open modes of diplomacy, and a burgeoning transnational � potentially even global - civil society. The institutionalization of international courts and of supranational political institutions, point not only to world-wide interconnectedness but also to global governance, of which the EU is held to be the most prominent example.


However, this examination of certain selected institutional and constitutional features of the EU has shown that it is not merely a system of transnational governance, as it holds important features akin to a government model, as well. Drawing on a deliberative perspective, we identified three central criteria of government (constitution, institutional framework, and representation), and applied these to some central features of the EU. 


The system of Comitology was chosen because it is the quintessential case of transnational governance. Its constitutional status is ambivalent. It is regulated by law, and the experts deliberate in the shadow of the law. Comitology was designed to help ensure the Member States a continued say in the EU, albeit it shapes preferences and identities and helps support further integration through its contribution to deliberative supranationalism. It does not comply with conventional conceptions of interest representation, as it is less formalised than for instance a system of societal corporatism. But although less formalised, to operate the entire system presupposes a set of institutions (the existence of the Member States). It also helps offload the EP as the site of interest representation and through taking care of 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 conundrum facing the EU, as noted by Cohen and Sabel, is that this system has defects when compared to a formal constitutional arrangement, but to abolish it will entail losses in the effectiveness of the EU.

Courts have played a central role in the emergence of the EU. The problem with the ECJ is that many of the laws it rules upon are not made by the people. It is structurally limited in the sense that many of the norms the judges are to act upon are not made by proper legislative authorities. However, the ECJ has also contributed to the promoting of democracy in the EU, through sustained action and support in the entrenchment and development of a body of fundamental rights, and through actions to strengthen other institutions supportive of democracy and democratisation. The courts have forged the peculiar non-hierarchical legal system of the EU, and which thus diverges from that of government systems. However, there is nothing in the structure of legal reasoning to set the EU apart from the basic requirements of constitutional government. This suggests that the main question here is political, not legal. If the EU is endowed with a formal constitution the legal system can be adapted to such.


The EP falls short of the powers and prerogatives of parliaments in constitutional democratic states but 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 deficient. However, recent changes have ushered in potentially important changes in the entire nature and status of the EU.


The main such change is the ongoing process of constitution making and constitutional debate, first attributed to the Charter Convention and now to the Constitutional Convention. The Charter Convention was important in several respects. For one, it brought the EU close to having a bill of rights. Further, it heralds an important change in the manner in which constitution-making is conducted. From having been the preserve of executive officials, operating in closed quarters, the experience with the Charter Convention and more recent decisions suggest a more open constitutional process. A more explicitly rights-oriented EU helps strengthen this trend, as rights empower citizens. The Constitutional Convention has promise to bring this process a major step forward, albeit it also does not escape the tension between governance and government. If the EU sticks to the system in place, then it has to live with this tension with clear democratic implications. The question is how far it should move in the government direction in order to both satisfy constitutional and democratic requirements on the one hand, and on the other have ability to handle the boundary-transcending problems that mark our contemporary age. It is still too early to tell how this is ultimately resolved in the EU. In this deliberative reconstruction we have identified a number of features and processes in the EU that point in the government direction.




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[1] Revised version of paper presented at the workshop on Constitutionalism and Transnational Governance, European University Institute, Florence November 30-December 1, 2001.

[2] �The regulatory power of collectively binding decisions operates according to a different logic than the regulatory mechanisms of the market. Power can be democratised; money cannot. Thus the possibilities for a democratic self-steering of society slip away as the regulation of social spheres is transferred from one medium to another.� (Habermas 2001:78)

[3] Benedict Anderson underlines that the nation is an imagined community, �because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion.�(Anderson 1991,6).

[4] The �citizenry of a democracy cannot decide on the issues the citizens are to decide on.�(Offe 2000:182)

[5] See also Bohman and Lutz-Bachmann 1997:8, Bohman 1999:500, Rosenau 1998:28ff. See further Dryzek 1999, Gilbert 1999, and Ruggie 1998, Tujil 1999, Wagner, 1995.

[6] This is also discussed in Eriksen and Fossum (2000a). There is a large body of literature on this, see e.g., Wessels, 1996:63f, Marks 1993, Jachtenfuchs and  Kohler-Koch (eds) 1996, Hooghe 1996,  Kohler-Koch, 1996, Scharpf 1996.

[7] The following parts draws on the article of ours �Democracy through strong publics in the European Union.� Journal of Common Market Studies, Sept. 2002

[8] Strictly speaking Comitology pertains to the procedures for the excercise of the implementing powers conferred on the Commission set by Council Decision 87/373/EEC. However, on a broader reading Comitology �covers the entire universe of Union Committees. Comitology is not a discreet phenomenon which occurs at the end of the decision making process.�  (Weiler 1999b:340)

[9] The committees are of many kinds, but in functional terms there are scientific, interest, and policy-making/implementing committees, which are composed of independent experts, and representatives of interest groups and Member States. �These committees thus operate both in the preparatory and in the implementing phase� (Vos 1999:22).

[10] On Council decision see Annex 1 and 3 in Joerges and Vos 1999. The latter repeals the Decision 87/373EEC. �It expressly mentions the European Parliament without defining its institutional role� (Joerges and Vos 1999:386).

[11] The Commision March 1. 2000 adopted the White Paper on Administrative Reform:

[12] Brussels, 25.7.2001.Com(2001)428

[13] The EP unearthed the practices in the Commission that generated concerns with fraud and nepotism and set up the committee of independent experts to find out who was responsible.

[14] See the Spinelli Report 1984 and the Herman Report 1994.

[15] 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 Charter of Fundamental Rights of the European Union, whose formal status is to be determined by 2004, could spark a similar type of debate.

[16] For more comprehensive assessments see Lenearts and de Smijter 2001, Eriksen et. al. 2001, Menendez 2002.