Treaty of Lisbon: Democratic Deficit and EU Reform

Introduction: The Treaty of Lisbon and Its Background

The Reform Treaty, or the Treaty of Lisbon (2009), is an amending instrument for two existing treaties: the Treaty on European Union (TEU, also known as the Maastricht Treaty) and the Treaty on the Functioning of the European Union (TFEU, also known as the Treaty of Rome). Together these form the bedrock of the European Community's administrative and legislative functions.

The historical background for this "reform" treaty was the failure of the earlier treaty establishing a European Constitution, which had been voted down by referenda in France and the Netherlands. Nonetheless, it was felt among member states that they needed a compact that would more suitably express their desire to form a closer and more perfect union. In doing so, the member states had to strike a balance between national aspirations and the aspirations of European unity (Bonde, 2009). Added to this triangle was the need to sustain existing devolution. The complexity of the puzzle created by the various stakeholders required a sustained effort, and that effort materialized in 2007 with the aforementioned treaty, which was put into force in 2009 (Council of the European Union, "Lisbon Treaty: The Making Of").

Democratic deficit as a concept emerged as one of the main criticisms leveled against the centralization of legislation at the European level, which was seen as an abdication of responsibility by elected national parliaments in terms of their democratic mandates. Put plainly, the concept of democratic deficit refers to the creation of a supra-legislative council in the age of devolution, which affects an ordinary citizen in two ways:

Democratic Deficit in the European Union

First, it creates a sense of remoteness for the citizen. Second, it affects their access to their legislator.

The creation of the European Parliament came about as a direct result of this criticism. For a period, legislation had been limited to a council of European ministers. By creating an elected legislature at the European center — one that was elected and therefore accountable — one major prong of the criticism leveled against European centralization was addressed.

Conferral, Subsidiarity, and Proportionality

The principle of conferral deals with the residuary powers within the constitutional scheme of the European Union. Any powers or "competences" not specifically conferred upon the European center remain with the independent national states and are therefore within the sovereign scope of the national parliaments that form part of the European Union (Lisbon Treaty, Article 5). All competences not explicitly and clearly embodied in the European constitutional scheme are automatically retained by the national parliaments (Lisbon Treaty, Article 2). Under this scheme, matters that pertain to a local region are kept within the constitutional framework of the individual state, while matters that require European-level coordination are given to the European Parliament (TEU, Article 12). A similar principle operates in the United States, where residuary powers are vested in the states — and that is where key issues of U.S. constitutional law, especially the issue of interposition, find their fullest expression. In Europe's case, one may therefore imagine a three-tiered system of legislative competences: competences in the domain of the European Parliament, which sits atop the entire scheme; competences in the domain of the national parliaments; and finally competences that may fall within provincial legislatures or constituent units of individual national states, or with municipal legislatures as the case may be (House of Lords, 2007).

Proportionality has a close relationship to conferral. Simply put, it means that no tier of the European system of government will exceed its competences and will act proportionally to only that which is required under the treaty. The treaty lays down the scope of legislative competence of each layer or tier of government (Lisbon Treaty, Article 2). Closely connected to this concept is subsidiarity, a basic principle of European Community legislation under which the European Community is to intervene only where the laws of the national state are found to be inadequate; otherwise, legislation flows from the lowest tier to the highest. Article 5 embodies this principle of Europe-wide consociationalism (House of Commons, 2007).

These three principles together form the grundnorm of the European scheme of legislation by treaty. The final determinant of the Union's competence in any matter lies with the European Court of Justice, making it the highest constitutional forum in Europe for disputes between national states and the Union itself. The end product is an elegant scheme that allows for maximum sovereignty and a sense of participation for the individual citizen, while substantially minimizing the impact of democratic deficit. The central feature that brings balance is the review option available to national parliaments by a one-third vote. This is the main policing power of national parliaments, by which they enforce their prerogative and power to interpose — though interposition in Europe works both ways (TEU, Protocol No. 2). The one-third clause therefore operates as a veto, and because national parliaments each have equal say, it is the most important check national parliaments possess, especially when it comes to protecting the interests of smaller nations and members of the European Union.

The articles and protocols that apply in terms of establishing competences of the Union vis-à-vis national parliaments are as follows:

1. Articles 3, 4, 5 and 6 of the Lisbon Treaty, as discussed above.

2. Article 12 of the TEU. National parliaments would receive legislative drafts at the same time as the European Parliament and would review them for compliance with subsidiarity and proportionality, as well as proposing amendments.

Conclusion

The rejection of the European Constitution came as a blow to those aspiring to create a United States of Europe, but what was not achieved directly has been achieved indirectly. The idea of a responsible legislature with a watered-down form of executive, along with a judicial branch, has the trappings of a supranational state bound by a de facto constitution through a treaty arrangement.

On the face of it, national parliaments — the middle tier — seem to have the most direct say in what is legislated in most instances. These national parliaments are bound by national constitutions and national laws. However, wherever a national parliament's policy is found to be inadequate or in contravention of established European objectives, the principle of proportionality permits the European Parliament to act.

Thus, while limited on paper, the competences of the European Union may in practice extend to each and every case where it determines that its treaty objectives are not being met. The treaty obligations that bind individual nations make the scope of the European Parliament's authority something of a catch-all. This makes the arrangement something more than a confederation. In theory, when required, the European Union can act as a highly centralized state.

This allows for a flexibility that is unique and novel in human history — a devolved, three-tiered confederation that can act as a unitary state if the need arises. The Treaty of Lisbon, through the interplay of conferral, subsidiarity, and proportionality, and through the European Court of Justice as ultimate arbiter, has produced a constitutional architecture that meaningfully addresses democratic deficit while preserving the sovereign integrity of its member states.

1. Bonde, J.P. From EU Constitution to Lisbon Treaty. Foundation for EU Democracy and the EU Democrats. ISBN 87-87692-71-6.

2. Council of the European Union. "Lisbon Treaty: The Making Of" (PDF).

3. House of Lords, Select Committee on EU — 10th Report 2007.

4. House of Commons, 33rd Report of 2007–2008 Session, European Scrutiny Committee.