By Thomas Darnstädt
Card-carrying Europeans reacted in dismay to a recent far-reaching ruling on the EU's Lisbon Treaty by Germany's Constitutional Court. But the judges have in fact done Europeans a huge service by tackling the issue of how democracy can work in the era of supranational institutions.
Do the people want to be deceived? Niccolò Machiavelli -- who was, it's safe to say, something of a cynic when it came to state power -- once wrote that anyone who wishes to reform a government "must, if his measures are to be well received and carried out with general approval, preserve at least the semblance of existing methods, so as not to appear to the people to have made any change in the old order of things, although, in truth, the new ordinances differ altogether from those which they replace."
The European Parliament in Strasbourg: How can democracy function in the era of supranational institutions?The Florentine diplomat's wisdom was valid in the Renaissance, when the world was being fundamentally restructured, and it also applies to the restructuring of the international order in the 21st century. As stated in the European Union's Lisbon Treaty: "The functioning of the Union shall be founded on representative democracy." Is this a promise? Or have they been reading Machiavelli again? Are they really telling us the truth about what they have planned for democracy?
Germany's Federal Constitutional Court proclaimed the truth on June 30. It ruled that the EU of the Lisbon Treaty does not satisfy the minimum requirements for a democracy of the type described in the German constitution, and the European Parliament is effectively little more than an expensive, Machiavellian glass façade. And without proper supervision by the national parliaments, the politicians in Brussels are not legitimized by the people, it ruled.
Admittedly the court did rule that the Lisbon Treaty is basically compatible with German law and therefore can eventually be ratified. But before it can be, further legislation must be introduced in Germany that would strengthen the national parliament's involvement in any major decision-making in Brussels.
So is EU democracy nothing but a shiny bauble? Criticism of the German court's ruling has grown with each day that passes since the decision was handed down. Prominent European intellectuals have vocally expressed their outrage at the court's reservations about further steps toward European integration. Former German Foreign Minister Joschka Fischer described the ruling as "outrageous" in an opinion piece for the respected German weekly Die Zeit. "The decision comes at a time at which our European neighbors and the Americans are increasingly gaining the impression that Germany is more and more turning away from Europe and is mainly interested in its own affairs," he wrote. "The Constitutional Court's decision strengthens this impression."
But this outrage conceals the fact that the ruling of the Karlsruhe-based Constitutional Court also represents the most important contribution yet to the future of democracy in the post-democratic era. The Karlsruhe judges are treating the European project the way it has long been seen by political scientists, as well as international law and globalization experts around the world, namely as the world's most exciting attempt to solve supranational problems with the help of supranational politics -- and to do so in a democratic fashion.
Can Western Democracy Work for Supranational Politics?
But how democratic can supranational politics really be? The judges' first important contribution is that they are taking the problem seriously. The hackneyed words of Europe's proponents are a mere smokescreen. A parliament like the European one is no democratic representation of sovereign populations if the vote of a citizen of Malta counts 12 times as much as that of a French citizen. A parliament like the one in Strasbourg and Brussels cannot legitimize the work of the European Commission, which effectively functions as a government, because it is hardly capable of controlling it.
It is naïve to believe that one can build a transnational super-state based on the model of conventional Western democracies, political philosophers argue. The difficulties do not lie solely in the attempt to channel the process of shaping the political will within large, heterogeneous areas like the European continent, across cultural and linguistic barriers, into an equitable process with a unified outcome. More importantly, there is a fundamental problem: Who exactly is the subject of this democracy supposed to be, as represented by its super-parliament? The people of Europe? It is not just the notoriously suspicious British, but each nation in Europe, which sees its sovereignty challenged when it is defeated in a vote. After all, being sovereign means, in a conventional sense, not having to do what another nation says.
Because it is so difficult (perhaps impossible?) to democratically control political actors in international institutions, constitutional experts and political scientists are working on alternatives to the Western nations' traditional model of democracy everywhere such organizations exist. What legitimizes the power of the World Trade Organization? Which parliament monitors the activities of the International Criminal Court? How democratic is the Basel Committee, which supervises banks' credit policies? And who monitors the voting behavior of the nuclear powers on the United Nations Security Council?
"Output" Democracy
Does democratic legitimacy still play any kind of role anymore? According to the Frankfurt-based sociologist and legal scholar Gunther Teubner, a web of regulations and norms has developed over the heads of citizens and nations as a result of international treaties, economic regulations, interest groups and non-governmental organizations. This complex of rules has a significant influence on the daily lives of people without ever having been approved by a parliament, he argues.
In this regard, the insistence on the classical model of democratic legitimization from the bottom up -- in other words, from the citizen to the state -- has become downright old-fashioned. European politics threatens to become hopelessly ineffective if it allows itself to become too closely tied to parliaments. It is not surprising that Europe, too, is to be streamlined in what Udo Di Fabio, a member of the Federal Constitutional Court and one of the authors of the June 30 decision, calls the "wake of the global community." Di Fabio's former colleague Wolfgang Hoffmann-Riem has already reflected publicly on the possibility of "no longer securing legitimization solely through institutions and processes, but also through results."
In other words, the Brussels bureaucracy no longer needs to ask itself: What is the interest of citizens? Instead, it can ask itself: What is in the interest of citizens? And it also needs to try to convince Europeans of its legitimacy on the basis of its results. Heidelberg-based international law expert Armin von Bogdandy speaks of "gubernative (sic) law-making" and expresses similarly paternalistic ideas when he argues that it is the executive which should decide which rules are to apply in Europe.
These are ideas from the theory of so-called "output" democracy, in which more weight is placed on the persuasive power of results than legitimization through "input" from democratic opinion-shaping processes within the population.
The notion of Europe as an output democracy is an apt description of what is now happening in Brussels. For instance, last week's "output" from the EU's competition commissioner, Neelie Kroes, was probably convincing for a majority of European citizens: She fined two large energy providers, Germany's E.on and France's GDF Suez, €553 million ($781 million) each because of a profiteering cartel agreement between the companies. And it is correct to point out that this outcome could only be achieved because Brussels was not required to pay any heed to democratically elected decision-makers in Germany, for example. The German government may have no problems with legitimacy, but it is also immensely pro-industry. Germany's ruling grand coalition government would never have dared to inflict such a blow on a German energy giant like Eon.
Are we better off under this output democracy? Perhaps. The only disadvantage is that it isn't actually a democracy. The shaping of the political will in this brave new political world does not take place from the bottom up, but precisely the other way around.
The judges have taken a stance against this system. That stance is important not just because of their appeal to the democratic principles of the German constitution, the Basic Law, which, from the court's standpoint, are sacrosanct. It is -- and this is their second major achievement -- also a serious attempt to rethink democracy for the age of major supranational decisions.
Part 2: German Parliamentarians Must See European Politics as Their Responsibility
The far-reaching responsibility which the Constitutional Court has given the German Bundestag -- and other national parliaments -- in relation to European politics, creates a new role for the traditional parliamentary system. Under the classical model of democracy, the parliament is responsible for every decision that is to be made within the territory of the community known as the "nation" -- in other words, for domestic policy. Members of parliament are only very indirectly responsible for those issues that affect others, namely foreign policy. Representing the nation beyond its borders has since time immemorial been the responsibility of the executive branch. Under that model, a member of parliament knows very little about foreign affairs.
But Europe is the ever-more-convincing proof that domestic and foreign policy can no longer be separated from each other. Each member of the government who sits on a council of ministers in Brussels is simultaneously carrying out both German and European politics. Each German representative on a council should, in the best-case scenario, take the EU's other 26 members into account when making decisions. Naturally he or she has taken an oath to serve German interests. But that is exactly why the European Union exists: so that everyone does not simply represent his or her own interests, but also considers the interests of others, in a spirit of solidarity. If the political arena is being relocated in this way from the nation-state to Brussels, then it is only logical that the sphere of responsibility of the parliament, which is elected to control the executive, should relocate too. That is exactly what the Federal Constitutional Court is demanding: The Bundestag -- even the Bundestag -- must become a European parliament. And Bundestag members must see European politics as their responsibility, and not just as foreign policy.
Governments Must Learn to Explain Europe
The most important counter-argument to this position is that members of parliament would be out of their depth under that scenario. In the past, they have failed miserably when confronted with challenges involving EU politics -- such as when the guidelines from Brussels regarding the European Arrest Warrant were being discussed. Then, too, it was the Federal Constitutional Court that in 2005 stopped the overhasty and unconstitutional implementation of the Brussels guidelines into German law. The Bundestag members who appeared before the Constitutional Court to argue their case stuttered like schoolboys in front of the judges. They could not say what they thought -- because they had not thought about anything.
In a representative parliament whose scope does not include big-picture politics, lawmakers are not used to taking responsibility for the actual subject matter of issues. Members of parliament play the role of providing a majority for the government -- or preventing it from forming a majority. End of story. Thus, it is not surprising that the Bundestag failed to reclaim for itself its right to exercise control when it came to the German laws relating to the implementation of the Lisbon Treaty.
Who, if not the Federal Constitutional Court, could have acted to change things? The Lisbon Treaty verdict is a massive appeal -- no, order -- to the people's representatives to finally engage with European issues. "A lot of work and little recognition," is how Bundestag member Gunther Krichbaum once described his work on the Bundestag's European Union committee, which he chairs. Is that all that Europe means for German democracy?
Card-carrying Europeans seem unanimous in the view that national legitimization of European decisions is impossible in the long run. A democracy consisting of 27 national parliaments would be too noisy, too slow and too nationalistic, they argue. But the Constitutional Court has neither ruled that political decisions by German government members who are on councils of ministers in Brussels need to be subject to approval by the Bundestag, nor ruled out further steps toward greater European integration. It is only trying to prevent the Bundestag from refusing to take responsibility for all these things. It is trying to prevent the situation where, in the words of the former Constitutional Court judge Dieter Grimm, "European politics continue to be conducted behind the Bundestag's back." The government should have leeway to make decisions in Brussels, just as it does in the national sphere, as long as it has the confidence of the Bundestag.
Tying European Union politics once again to the responsibilities of the parliament also means that future European integration will, in individual cases, need to be based on goals that can be communicated to the electorate. As of now, European integration is no longer something that will automatically continue by itself -- in individual cases, the government must be able to explain to voters the utility of further steps toward greater integration, and those steps need to have majority support. Explain Europe: That will be the challenge for all the fervent Europeans among German democrats.
Nothing Is Simple in a United Europe
The Constitutional Court's model of a Europe of European parliaments is not as impracticable as distraught Europeans are making it out to be. It all comes down to the Bundestag members -- in contrast to the election campaigners in the ranks of Bavaria's conservative Christian Social Union, with their garbled calls for grassroots democracy and the right to unlimited control -- thinking about how they can be good Europeans.
So far, however, Europe's political thinkers have only come up with provisional ideas about how that could work. The Munich sociologist Ulrich Beck, for example, talks of a creative political culture within a "Europe of differences." Under this model, national parliaments would promote, in the words of former Constitutional Court judge Dieter Grimm, "public discourse about European politics" within member states. The Frankfurt lawyer Erhard Denninger believes that a sense of "European solidarity" would emerge from an open competition between democracies.
And Ralf Dahrendorf, the respected German-British sociologist who died in June, even referred to ideas from the German philosopher Immanuel Kant in a bid to endow members of Western parliaments with a Kantian categorical imperative to be cosmopolitan. In a play on a famous line of Kant's, Dahrendorf writes: "Act in a way that your action's maxim could be seen as a principle of a global civic constitution that administers a universal law."
Not even the Federal Constitutional Court could have said it in a more complicated way. But then nothing is simple in a united Europe.
