Year L, 2008, Number 2, Page 110
The Democratic Principles of the European Union in the Treaty of Lisbon*
UGO DRAETTA
1. Introduction.
The Treaty of Lisbon, signed on 13 December, 2007, amended the Treaty on European Union (hereinafter “TEU”) and the Treaty establishing the European Community, and also gave the latter a new name: the Treaty on the Functioning of the European Union(hereinafter “TFEU”).[1] Among the various changes made to the previous texts, the Treaty of Lisbon introduces, into the TEU, Title II, “Provisions on democratic principles”. Title II is a series of new and existing provisions, all of which aim to render the whole EU system more democratic. These provisions, already in part contained in the Treaty establishing a Constitution for Europe, signed in Rome on 29 October, 2004, and subsequently abandoned, constitute the response to the pressing requests contained in the Laeken Declaration on the Future of the European Union, issued by the European Council on 15 December, 2001, which, in defining the mandate of the European Convention, referred as many as twelve times to the need for “democratic legitimacy”, “democratic control”, “democratic values” and the like, thereby reflecting the fact that the system’s level of democracy was, at that time, still the crucial unresolved problem in the process of building Europe.
It is, of course, widely known that each of the various treaties modifying the Treaty of Rome, starting with the Single European Act, set out, among their main objectives, to resolve, or at least, lessen, the problem of the so-called democratic deficit or gap, a problem that has accompanied the process of European integration from its very beginnings, and which the progressive extension of the EU’s competences has apparently aggravated. The problem, basically, is that there is felt to be too little democratic representation in Community institutions that can issue substantially legislative acts liable to affect the citizens directly, and also a lack of parliamentary control over the Council, the main legislative organ of the European Union. Some people, basing their position on the increasing instances of European Parliament involvement in the Community decision-making process through the co-decision procedure, and also on the fact that each Council member is ultimately answerable to his own national parliament, have played down the extent and the gravity of this problem. Others, on the other hand, noting that the co-decision procedure does not in fact allow the European Parliament to steer the action of the Community in the direction it would like, and also that the control which the national parliaments are able to exercise over their respective Council members seems to be too remote to make any difference, have expressed more concern over it.
In any case, the fact is that the democratic deficit is a problem that has been postponed from one Treaty revision to the next, without there ever emerging the political conditions in which it might be resolved definitively. This should not surprise us; to a certain extent, it is something that seems to be taken for granted in the current stage of European integration. Indeed, it remains true that complete elimination of the democratic deficit will be possible only through the application, within the European setting, of the principle of the separation of powers, according to which legislative power is attributed to a democratically elected body, which also has political control over the executive. There are only two ways in which this could be achieved completely: either by giving the European Parliament (already elected by direct universal suffrage) legislative power within the Community, even against the Council’s will, or by having the citizens elect the Council directly, thereby transforming it from a representative body of the states into a sort of high chamber, or senate, within a federal bicameral structure in which state and/or regional interests would be represented. But these solutions would imply movements in a federal direction, and thus the relinquishing of sovereignty by the states. And because such movements have always seemed politically unthinkable, the problem of the democratic deficit can only be lessened, not completely solved.
2. Democratic Principles and Representative Democracy.
In this setting, and given these precedents, the drafters of the Treaty of Lisbon, realising that the citizens of the member states will feel truly close to the European Union only once they have acquired a greater level of democratic participation in its functioning, introduced into the TEU, as mentioned earlier, Title II, significantly entitled “Provisions on democratic principles”. Title II includes, in Art. 10(1), the following statement of principle: “The functioning of the Union shall be founded on representative democracy”. The said provisions are intended to guarantee the European citizens as much involvement as possible in the functioning of the European Union (both directly and through the national parliaments that represent them), but obviously without ever crossing the threshold at which this level of involvement would imply the relinquishing of sovereignty by the member states. In fact, were the European Union truly and fully based on the principle of representative democracy, it would, as we said a little earlier, be a federal entity that would take the place of the member states. The political need not to cross the threshold just mentioned clearly makes it difficult to establish institutional balances (inevitably fragile) in the current European integration setting and the provisions we are about to consider here are influenced by this difficulty. Indeed, as we shall see, they are often formulated in ambiguous or highly convoluted terms.
Article 10 of the TEU sets out the foundations of the principle of representative democracy, citing the following facts: (i) the European citizens are directly represented at Union level in the European Parliament, (ii) the representatives of the member states in the European Council and in the Council are democratically accountable to their national parliaments or to their citizens, (iii) every citizen has the right to participate in the democratic life of the European Union, (iv) political parties at European level contribute to forming European political awareness and to expressing the will of the citizens of the Union.
This provision, a commendable effort to approach this issue systematically, contains elements that certainly constitute steps towards reducing the problem of the democratic deficit, albeit within the framework of the intrinsic limitations just mentioned.
Analysing the above points in more detail, the reference to the European Parliament’s representativeness is undoubtedly significant, given the greater number of decisions that now, under the Treaty of Lisbon, have to be adopted in accordance with the ordinary legislative procedure, which is basically the equivalent of the co-decision procedure. This procedure, by making provision for acts to be adopted jointly by the Council and the European Parliament, basically gives the Parliament the right of veto, but not the capacity, at least when it is in disagreement with the Council, to direct the action of the European Union according to its own will, which is what the concept of representative democracy would demand. Furthermore, the reference to the fact that the single members of the European Council and of the Council, in their capacity as heads of state or of government or members of national governments, are politically accountable to their national parliaments, is a statement of the obvious, and one that nevertheless fails to confer democratic legitimacy on these institutions at European level. In fact, these institutions continue to escape the political control of the European Parliament, continue to embody the will of the executive powers in the respective member states, and their members continue to be politically accountable, in their pursuit of national interests rather than the general interests of the European Union, to their respective national parliaments. Consequently, neither of these two institutions can be regarded as a (democratically elected) second chamber within a bicameral parliamentary system, and it would be incorrect, referring to the affirmation that the legislative function within the European Union is exercised jointly by the European Parliament and by the Council [Art. 14(1) and Art. 16(1), TEU], to liken this function to the one typically fulfilled by a bicameral parliament within a democratic system.
As far as the citizens’ participation in the democratic life of the European Union is concerned, Art. 10(3) TEU refers explicitly to the principles of openness and closeness, stating that decisions shall be taken as openly and as closely as possible to the citizens. Furthermore, Art. 11(1) TEU recalls the opportunity that citizens are to be given to make known and publicly exchange their views in all areas of Union action, and in particular when the Commission issues its so-called green papers. An interesting new development, in this regard, is the conferring on groups of citizens (that must each number at least one million people) of a power of initiative that would allow them to invite the European Commission to submit appropriate proposals should legal acts be considered necessary for the purpose of implementing the Treaties [Art. 11(4) TEU]. It is, however, specified that the citizens entitled to use this power of initiative must come from a “significant number” of member states, a number that, in accordance with Art. 24(1) TFEU, will be decided by the European Parliament.
Finally, the reference to the role of political parties at European level adds little to the provisions that were already in place. It is worth recalling that political parties come into being wherever there exists political power to be won or held on to. The function of political parties, in a democratic state, is to compete with one another to form the majority in a legislative body of which the executive power is the expression and by which the executive power is controlled. The role of the political parties within the European Parliament, which does not have sole legislative power, or any political control over the Council, cannot be likened to that of the national political parties, but seen rather as a paving of the way for a — let us hope — federal evolution of the European Union, or of a section of its member states. However, in this regard, a further important new development is introduced by Art.17(7) TEU (integrated and better specified by Declaration 11, annexed to the text of the Treaty of Lisbon), which states that the European Council, when it presents the European Parliament with a candidate for the role of President of the Commission, must take into account the results of the elections to the European Parliament, meaning that the said candidate must, in principle, belong to the political party that won a majority in the European Parliament. This provision can be read in both a positive and a negative light. On the one hand, it is, on a purely formal level, an element that makes the European Union’s institutional framework more democratic. On the other, it must surely be obvious that it is not necessarily a good thing for a body (the Commission) that should be promoting the general interests of the European Union, free from the political influences to which the Council is, instead, necessarily exposed, to have an openly political president who identifies with a political majority. We feel, instead, that the Commission, in its capacity as overseer of the application of the Treaties, should be absolutely free from political influence; indeed, in exercising its power of legislative initiative it should only be formulating proposals that are in the general interests of the European Union, proposals that it will then fall to the European Parliament and Council to evaluate politically.
3. The Provisions on European Citizenship.
Within the body of the provisions relating to democratic principles and to the participation of the citizens in the democratic life of the Union, Art. 9 TEU, in particular, makes reference to citizenship of the European Union, an idea that dates back to the Treaty of Maastricht and is now covered, in detail, by Articles 20 to 25 TFEU, even though these articles have not introduced any substantial changes.
In accordance with Art. 9 TEU, every national of a member state is a citizen of the European Union. It must be understood that an individual’s status as a national of a member state depends on the law in force in the single member states, meaning that EU citizenship is acquired or lost as a result of the acquisition or loss of national citizenship.[2] In situations in which a member state recognises an individual’s dual citizenship (that of the said member state and of a third state), this dual-nationality status does not prevent him from enjoying, throughout in the EU and regardless of the law in force in other EU member states, all the rights that his EU citizenship confers on him. This is what was decided by the Court of Justice[3] when it obliged Spain to guarantee EU citizenship rights to an individual recognised by Italy as having dual (Italian and Argentine) nationality, even though in Spanish law the fact that the individual in question lived in Argentina made him an Argentine national.
Art. 9 TEU states that citizenship of the Union “shall be additional to national citizenship and shall not replace it”, a point that is reiterated by Art. 20(1) TFEU. EU citizenship is thus a sui generis concept of citizenship not to be confused with national citizenship which, determined by each country’s internal legal order, implies subordination to a state. In short, the European Union adopts its own idea of citizenship, which does not interfere with any of the characteristics typical of national citizenship status as defined in national domestic law and is, in fact, defined exclusively through the Treaties. In this regard, even though Art. 20(2) TFEU states that EU citizens “shall enjoy the rights and be subject to the duties provided for in the Treaties”, in actual fact, the provisions included pertain only to rights and no reference at all is made to duties associated with EU citizenship. This constitutes further confirmation of the sui generis nature of the idea of European citizenship.
In short, the EU citizen shall (a) be entitled to move and reside freely within the territory of the member states (Art. 21 TFEU); (b) have the right, when residing in a member state of which he is not a national, to vote and stand as a candidate in elections to the European Parliament and in municipal elections in that state, under the same conditions as nationals of that state (Art. 22 TFEU); (c) the right to protection by the diplomatic or consular authorities of any member state, under the same conditions as the nationals of that state, when in the territory of a third country in which the member state of which he is a national is not represented (Art. 23 TFEU); (d) the right to petition the European Parliament, to apply to the European Ombudsman (who is empowered to receive complaints relating to instances of maladministration), and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language [Art.20(2)d, TFEU].
This list of rights is not to be considered absolute: the list of rights given in Art.20(2) TFEU is, in fact, preceded by the expression inter alia; moreover, the Council, acting unanimously, may add new rights, which, in order to come into force, must be approved by the member states in accordance with their respective constitutional requirements (Art. 25, par. 2, TFUE).
Extension of the list of rights conferred by EU citizenship thus demands a special simplified procedure for revising the Treaties, different from the general simplified revision procedure provided for by Art. 48(6) TEU. The differences between the two approaches lie in the fact that in the case of the special procedure it is the Council, not the European Council, that is the driver of the initiative, and also in the fact that the modification concerns Part Two of the TFEU (which includes the provisions on EU citizenship), whereas the simplified revision procedure provided for by Art. 48(6) TEU is applicable only to the provisions contained in Part Three of the TFEU. The similarities, on the other hand, include the absence of the need to convene a convention or intergovernmental conference, and the reference made in both cases to the need for “approval”, rather than “ratification” by the member states. This choice of terminology seems to indicate recourse to rather weak forms of manifestation of the state’s will (weak compared to formal ratification), but it is important to remember the need to comply with each country’s internal constitutional requirements.[4] As far as the Italian legal system is concerned, we could examine the possibility of introducing changes in this area as agreementsinsimplified form, which do not require ratification and thus parliamentary authorisation to proceed with their ratification. However, it seems to us that this would contravene Art. 80 of the Italian Constitution, which states that parliamentary intervention is required in the case of political treaties and treaties that imply changes to the law (a treaty modification will always result in a modification of the law on the authorisation of ratification of treaties and of the mode of execution of the treaties).
The non-absoluteness of the list of rights is justified, also, by the fact that some parts of the EU Charter of Fundamental Rights of 7 December 2000 (Charter of Nice), now acknowledged as having the same legal value as the Treaties [Art. 6(1) TEU], make provision for the application of certain rights (basically the ones mentioned above) exclusively to the citizens of the member states, rather than to all people.
The main rights deriving from EU citizenship need to be analysed specifically, in order to verify the degree to which they really do concern the participation of the citizens in the democratic life of the Union. For example, all citizens of the European Union are, as such, entitled to move and reside freely within the territory of the member states, which therefore means even when they are not (or are no longer) working there; workers, on the other hand, enjoy a special freedom-of-movement regime based on the provisions contained in Part Three, Title IV, TFEU. It is worth recalling that the concept of the free movement of persons that emerges from the provisions on the EU as an area of freedom, security and justice (contained in Part Three, Title V, TFEU) is much broader, given that it applies to all people, regardless of whether or not they are citizens of an EU member state.
The freedom of EU citizens and their family members to move and reside freely was regulated by Directive 2004/38/EC of 29 April 2004, which (Art. 7) requires that, for a stay of over three months, the beneficiary must be able to demonstrate that he has sufficient economic resources not to become a burden on the social welfare system of the host member state. Furthermore, as shown by Art.21(1) TFEU, this freedom is not limitless, but “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”. In particular, under Article 27 of the above directive, member states may take measures restricting freedom of movement providing this is done on grounds of public policy, public security or public health, and in accordance with the principle of proportionality.
Despite being provisions aimed at the member states, both Art. 21 TFEU and the directive just mentioned give beneficiaries a right that can be invoked before national judges, given that the European Court of Justice had already recognised the “direct effect” of a previous provision that corresponded to Art. 21 TFEU.[5]
With regard to the right to vote and stand as a candidate in municipal elections in one’s country of residence (when one is not a national of that state), in some countries it proved necessary to modify the Constitution in order to allow full recognition of this right.[6] To give effect to the provision in question, the Council issued Directive 94/80/EC of 19 December 1994. This directive gives EU citizens the faculty to choose whether to vote in their own country or in their country of residence, and it gives the states the possibility to bar non-citizens from holding executive posts at local level (e.g. from becoming mayor) and to introduce derogations when more than 20 per cent of the resident electorate is composed of EU citizens who are not nationals of the state in question.[7] The right to vote and stand as a candidate in elections, as set out in the provision under examination here, is linked to the prohibition of discrimination on grounds of nationality declared in Art. 18 TFEU. (This article, however, fails, even by implication, to guarantee EU citizens the right to vote in political elections held in their country of residence, which may not be the country of which they are nationals).
The freedom to vote and stand as a candidate in European elections in one’s country of residence (when one is not a national of that country) is a right that had, previously, already been established unilaterally by some states. The arrangements for the exercising of this right are laid down in Directive 93/80/EC, issued by the Council on 6 December, 1993.[8]
Diplomatic or consular protection in third countries is normal practice in international relations and is indeed expressly provided for both by the Vienna Convention on Diplomatic Relations of April 1961 (Art. 6 and Art. 46), and by the Vienna Convention on Consular Relations (Art. 8 and Art. 27) of 24 April, 1963. In fulfilment of the provision in question, the representatives of the governments of the member states, meeting within the Council of 19 December 1995, issued decision 95/553 regarding protection for citizens of the European Union by diplomatic and consular representations. This protection comprises assistance in cases of death, serious accident, arrest, violent crime, as well as repatriation of distressed citizens of the Union, but it cannot extend to the provision of financial assistance without the prior permission of the member state of which the citizen in question is a national. Obviously, to make it possible to implement this kind of protection, provision is also made for the reaching of special agreements not only between the member states involved but also with the third country in which the EU citizen seeks protection. It is worth recalling briefly that the diplomatic and consular protection under discussion here is something entirely different from the diplomatic protection that, in accordance with general international law, can be provided by a state whose citizen, in another state, has suffered an injustice as a result of violation of the rules on the treatment of foreigners.
In the light of all that has been said above, the only rights emerging as strictly relevant to the citizens’ participation in the democratic life of the European Union are the right to vote and stand as a candidate in elections to the European Parliament and the rights to petition the European Parliament and apply to the European Ombudsman; all the other rights deriving from EU citizenship are ones that are exercised, rather, vis-à-vis the member states, and it appears artificial to include them among the provisions relating to this participation.
4. The Involvement of the National Parliaments.
The provisions on democratic principles, contained in Title II TEU, are completed by a series of rules, nearly all of which are introduced by the text of the Treaty, relating to the involvement of the national parliaments in the good functioning of the European Union. These rules are summarised in Art. 12 TEU and integrated with further provisions set out in the TFEU, as well as with Protocol 1 (on the role of national parliaments in the European Union), which is annexed to the Treaty of Lisbon. First of all, Art. 12(a) TEU states, in general, that the national parliaments are to be informed of legislative acts that the EU institutions intend to introduce, and forwarded draft copies of them. This right to be informed is better specified in the abovementioned Protocol 1, which states that the national parliaments must be forwarded (a) all consultation documents produced by the Commission, and (b) all draft legislative acts submitted to the European Parliament and to the Council by whoever, within the European Union, has the power to take such initiatives or submit such requests (the Commission, a group of member states, the European Parliament, the Court of Justice, the European Central Bank, the European Investment Bank).[9]
These obligations to provide information are intended to make it possible for the national parliaments to exercise their powers of control (and, in some cases, of veto) for which provision is made by other articles of the Treaties, which we shall now examine. In this regard, the most prominent is Art. 12(b) TEU, according to which it falls to the national parliaments to ensure compliance with the principle of subsidiarity; the national parliaments also have the faculty, in accordance with Art. 3 of Protocol 1, mentioned earlier, to send the presidents of the European Parliament, the Council and the Commission their reasoned opinions should they believe that the said principle has not been complied with. The effects of these reasoned opinions are set out in Protocol 2, which deals with the application of the principles of subsidiarity and proportionality.
Protocol 2, modifying agreements between the institutions and other previous protocols, establishes the procedures for applying the principles of subsidiarity and proportionality, envisaging a very forceful role for the national parliaments. First of all, it reiterates the abovementioned obligations, set out in Protocol 1, to notify the national parliaments of all draft European legislative acts. Under Art. 5 of Protocol 2, such acts must be justified with regard to the principles of subsidiarity and proportionality, and, in particular, must contain a “detailed statement” that will make it possible to appraise their compliance with these principles, together with qualitative and, where possible, quantitative indicators, including indicators of the financial impact of the proposal in question. In other words, every proposal must take into account the need to ensure that the financial burden on the European Union and/or the member states is kept to a minimum and always commensurate with the objective being pursued.[10]
Any national parliament can, within eight weeks of the transmission of such a draft proposal, present the presidents of the main EU institutions with a “reasoned opinion” (as already provided for by Protocol 1) setting out the reasons why they believe the proposal in question fails to comply with the principle of subsidiarity (the relevant provision — Art. 6 of Protocol 2 — makes no mention of the principle of proportionality). Let us, for the sake of brevity, limit our considerations here to the case of a draft legislative act that requires application of the ordinary legislative procedure; in this case, if the majority of the national parliaments present reasoned opinions, the draft proposal must be re-examined by the Commission. This re-examination may result in maintenance, amendment or withdrawal of the proposal. If the proposal is maintained, the Commission must, in its turn, present a reasoned opinion explaining the reasons why it deems the proposal to comply with the principle of subsidiarity, and then refer the question to the Council or the European Parliament. At this point, the proposal can be rejected only if the Council or the European Parliament decides, respectively, by a 55 per cent majority of its members or of the votes cast, that it does not comply with the principle of subsidiarity.
In conclusion, a draft proposal can be maintained even when it is opposed by a majority of the national parliaments; in this situation, either the Council or the European Parliament can have the last word and, should the abovementioned majorities not be reached, determine that the proposal must be maintained. Two observations appear warranted in this regard. First of all, the situation just outlined would be liable to generate conflicts between the European Parliament and the national parliaments. Although it is naturally to be hoped that such conflicts will not materialise in practice, they cannot be excluded in theory, given that the national parliaments represent the interests of the citizens of each single state and not the general interests of all the European citizens. Second, the value of the national parliaments’ role as guarantors of the application of the principle of subsidiarity seems to be more formal than real. Added to this, the procedure for exercising this role is muddled to say the least, making it unlikely that it will frequently be applied. Nevertheless, a national parliament that deems a European legislative act to infringe the principle of subsidiarity can, under Art. 8 of Protocol 2, always have its government appeal to the Court of Justice. Indeed, in accordance with this provision, a nation-state can, under Art. 263 TFEU, submit such an appeal against infringement of the principle of subsidiarity, even on behalf of its national parliament, thereby allowing the latter, indirectly, to assert its objections to a draft legislative act (objections possibly set out in a reasoned opinion that, at the end of the procedure for involving the national parliaments which we have just outlined, has failed to produce the desired effect). Obviously, European law cannot interfere with the constitutional rules governing the relationship between parliament and government that are in place within each single member state, and therefore cannot oblige a state to appeal to the Court, even should its national parliament be requesting this. Art. 8 of Protocol 2, in fact, establishes that presentations, by states, of appeals on behalf of their parliaments must come about “in accordance with their legal order”. Having said this, given that, in a democratic state, the government is subject to the political control of the national parliament it must be assumed that the provision will, in general, obtain the desired effect. It is, instead, worth pointing out that this effect could have been achieved anyway, even without being explicitly provided for in Art. 8 Protocol 2, given that the state is the only entity with the faculty to appeal to the Court, and also given the irrelevance (to the appraisal of the appeal itself) of the fact that, within the country in question, it was the national parliament that asked the government to present it.
Protocol 1 does not envisage other situations (other than that of non-compliance with the principle of subsidiarity) in which the national parliaments can respond, through the submission of a reasoned opinion, to a draft European legislative act; however, in general, it does state that the Council must wait at least eight weeks after the notification of a draft European legislative act to the national parliaments before placing the relative proposal on the agenda, with a view to its adoption. We recall that, under Protocol 2, eight weeks is indeed the period of time the national parliaments are given to formulate any reasoned opinions they may have for deeming the draft proposal a violation of the principle of subsidiarity.
Under Art. 12(c) TEU, the national parliaments, within the framework of the area of freedom, security and justice, take part in the “evaluation mechanisms for the implementation of the Union policies” and are “involved in the political monitoring of Europol and the evaluation of Eurojust’s activities”. Within the framework of these rather elaborate formulas, provision is made for various, and different, forms of intervention.
First of all, in this sector too, it is the national parliaments that ensure compliance with the principle of subsidiarity, as Art. 69 TFEU recalls and as indeed would be the case even without this explicit reminder. Furthermore, the national parliaments are to be “informed” of any evaluations that the member states may conduct, in accordance with Art. 70 TFEU, in relation to the implementation, by the authorities of the member states, of EU policies in this sector. Likewise, they are to be kept “informed” of the work of a standing committee set up within the Council in order to ensure, within the Union, the promotion and strengthening of cooperation on internal security (Art. 71, TFEU). However, this right to be informed does not give the national parliaments specific powers.
A far more significant point is, instead, the right of veto that Art. 81(3) TFEU (last paragraph) attributes to the national parliaments in relation to any draft legislative act determining aspects of family law with cross-border implications. The inclusion of this right by the drafters of the Treaties reflects the obvious perplexity aroused in some member states by the EU lawmaker’s incursions into the field of family law. The right of veto in question must be exercised within six months of notification of the relative proposal.
Finally, remaining within the framework of the area of freedom, security and justice, Art. 85(1) TFEU (last paragraph) and Art. 88(2) TFEU (last paragraph) make provision for the issuing of regulations intended, respectively, to “involve” the national parliaments in the evaluation of Eurojust’s activities and in the scrutiny of those of Europol. However, the Treaties do not attribute any specific power to the national parliaments in connection with this “involvement”.
Art. 12(d) TEU, by adding the faculty to take part in the revision procedures of the Treaties, in accordance with Art. 48 TEU, extends the prerogatives held by the national parliaments. This faculty concerns, in particular, the simplified revision procedure provided for by Art. 48(7) TEU, under which, for certain Council decisions, the unanimity requirement can be abandoned in favour of the qualified majority procedure or, in some cases, the Council’s decision making procedure can be changed (from the special legislative to the ordinary legislative procedure). In either case, the European Council must notify the national parliaments of any decision taken and cannot proceed if even just one of the national parliaments, within the space of six months, makes its opposition known. Should the national parliaments fail to respond within the stipulated six-month period, the European Council will be able to adopt the decision, which will come into effect without the need for further ratification or approval by the member states. In this way, the Italian legal system is made to incorporate a procedure for concluding international agreements that is not provided for by the Constitution, given that the parliament intervenes not to authorise ratification by the Head of State and to establish the method of implementation, but only at the stage of the approval tout court of the change itself. This procedure could raise delicate constitutional issues in Italy, as indeed it already has done in other countries in connection with the same provision contained in the previous Treaty establishing a Constitution for Europe, which never came into effect.[11]
Art. 12(e) TEU mentions the right of the national parliaments to be “notified” of any application for membership of the Union, in accordance with Art. 49 TEU; instead, Art. 12(f) states that the national parliaments will, together with the European Parliament, take part in “inter-parliamentary cooperation” defined, in general terms, by Art. 9 and Art. 10 of Protocol 1, which also make provision for the discussion of matters of common foreign and security policy within the framework of a conference of parliamentary committees specialised in Union affairs (discussion that will have no particular legal consequences).
Even though the provisions just examined give the national parliaments only some rights of notification and control (linked, however, with quite considerable general powers, particularly in relation to the application of the principle of subsidiarity and the simplified revision procedure of the Treaties), they nevertheless have, or at least seem to have, positive implications from the point of view of the democratisation of the functioning of the European Union and of the Union’s closeness to the citizens represented in the national parliaments. (Traditionally, the citizens have only ever been conceded a purely internal role in the drawing up of the acts of the European Union, in other words, have been able to influence only the methods of forming the will that each member state would subsequently express within the Council). However, they can also be read in a less positive light. To democratise the European Union in the manner most compatible with the overall characteristics of the system, it would, in fact, be necessary to strengthen the role of the European Parliament (which acts in the general interests of the citizens of the European Union), not that of the national parliaments (which act in the interests of the citizens of the respective member states). The involvement of the national parliaments as provided for by the Treaties can, instead, be seen as an implicit delegitimisation of the European Parliament, to the detriment of the general interests of the citizens of Europe which it represents, and also as an attempt, on the part of the member states, to safeguard further the Community method and thus conserve the means at their disposal for conditioning its development. Finally, it has to be remarked that while the involvement of the national parliaments might well condition to some extent the activity of the respective representatives of the member states within the Council, this conditioning can only be understood in terms of further protection of the interests of the national citizens represented, precisely, by those national parliaments. In other words, this involvement will not serve to give the Council democratic legitimacy at EU level (and thus to make it resemble the second chamber in a bicameral system), because this legitimacy can stem only from the direct election of the members of the Council itself.
5. Conclusion.
The reforms introduced by the Treaty of Lisbon in the attempt to tackle the problem of the democratic deficit in the functioning of the European Union thus emerge, for the most part, as ambiguous if not actually counterproductive; and where partial improvements do emerge, these are too limited to be able to make a real contribution to remedying the problem.
There are, basically, two structural reasons for the limits presented by these reforms: the first concerns the fact that the member states currently lack a common vision of how the European Union might evolve and remain divided between those states that would like to see a strengthening of the prerogatives of the national powers (in their view, the only ones capable of being democratic) and those that would instead like to strengthen — and democratise — the European institutions. It follows, from this structural situation, that only abandonment of the unanimity rule provided for by the Treaties, and thus an act of secession on the part of a group of countries, France and Germany first and foremost, will make it possible to break the current impasse. The second reason is the one referred to right at the start: the fact that it is only by making a federal leap forwards, and thus by taking on the connotations of a true state endowed with the prerogative of sovereignty and founded on the consensus and direct legitimisation of the citizens, that the European Union will prove able to eliminate the democratic deficit inherent in its nature and confederal organisation. Until there emerges, particularly within the framework of the founding member states, the will to make this leap, the European Union is destined to go on perpetuating its inherent flaw — if not aggravating it, given the difficulties created in this sense by its continual enlargements — and thus to see its level of support among the citizens falling progressively until the whole Community structure is on the brink of collapse.
* This article is a reworking of a paper prepared by the author for the convention on “The European Union before the challenges of the 21st century: what advances does the Treaty of Lisbon contain?”, which was held on 9 May 2008 at the Catholic University of Milan.
[1] On the Treaty of Lisbon, we cite only, R. Baratta, Le principali novità del Trattato di Lisbona, Il Diritto dell’Unione Europea, 2008, p. 21 onwards; M. Fragola, Osservazioni sul Trattato di Lisbona tra Costituzione europea e processo di “decostituzionalizzazione”, Diritto comunitario e degli scambi internazionali, 2008, p. 205 onwards, to which we refer readers for its extensive bibliography; on the specific topic of democratic principles, see J. Ziller, Il nuovo Trattato europeo, Bologna, Mulino 2007, p. 71; C. Morviducci, “Il ruolo dei Parlamenti nazionali nel nuovo Trattato”, in Sud in Europa, a special issue devoted to the Lisbon reform, February 2008, p. 23 onwards; A. Santini, Non basta un nuovo Trattato per rilanciare l’Europa, in Vita e Pensiero, n. 1/2008, p. 32 onwards, especially p. 37.
[2] Declaration 63, annexed to the text of the Treaty of Lisbon, refers to the specific situation of British overseas territories citizens.
[3] Judgement of 7 July 1992, C-369/90, Micheletti case.
[4] These forms are provided for in some states, e.g. The Netherlands.
[5] For example, in the judgement of 17 September 2002, C-413/99, Baumbast case.
[6] This happened, for example, in France, following the Constitutional Council’s declaration of 9 April 1992.
[7] Italy gave effect to this directive through a legislative decree (n. 197 of 12 April, 1996).
[8] Italy gave effect to this directive through a legislative decree (n. 408 of 24 June 1994) converted into law n. 483 on 3 August 1994.
[9] In accordance with Protocol 1, the national parliaments must also be sent the agendas for and minutes of meetings in which the Council is deliberating on draft legislative acts.
[10] It must be held that the simple failure to provide reasons in this regard can certainly lead to contestation of the act before the Court of Justice on the grounds of infringement of an essential procedural requirement, in accordance with Art. 263 TFEU. Practice shows that reasons establishing conformity with the principles of subsidiarity or proportionality are normally mentioned in the “whereas” of the various measures and are sometimes succinct. The Court, when faced with this problem, showed that it was prepared to accept such succinct or, sometimes, even implicit justifications (see, for example, the judgement of 13 May 1997, case C-233/94, Germany v. Parliament and Council).
[11] See the French Constitutional Council’s decisionn. 2004/505 DC of 19 November 2004, published in the Journal Officiel de la République française of 24 November 2004, p. 19885.
