23 November 1990 - 25 November 1990

Democracy and Accountability in the European Community

Chair: Sir Christopher Tugendhat

We were fortunate to be holding this discussion on the eve of the Inter-Governmental Conference on monetary and political union, and doubly fortunate to have several participants who are involved in that conference, whether directly or indirectly.

We began by trying to define the so-called democratic deficit and indeed democracy itself. It was generally agreed however in the end that it was more fruitful not to strive for precise definitions or to try to categorise too clearly the nature of the European Community, whether federal, confederal or whatever, but to consider the issues raised on a functional basis. The Community was sui generis. (It was remarked, for example, that the Treaty of Rome reserved to the member states all the sectors which the American Founding Fathers had delegated to the federal government, and vice versa.) It was clear that at least in the area of law, the Community was already a federation; law made in Brussels applied directly to individual citizens throughout the Community, who in turn had the right to seek redress directly in the European Court of Justice. Similarly, the European Parliament (EP), though its powers were limited, was open to petition from individual citizens. The Court’s procedures needed to be streamlined, e.g. by reducing the size of the Court, but some reforms had already been made and should be given time to prove themselves. The method of appointment to the Court perhaps needed review, but there was no support for an endorsement procedure, e.g. by the EP.

In many countries, but not Britain, proceedings in Brussels were seen more as a function of the conduct of foreign relations, under a treaty, than of administration, with the result that national parliaments there were content with the equivalent of ratification of Community legislation and did not aspire to direct influence on the substance. Rather, where many member states sought to influence substance, it was in the heart of the Community bureaucracy and through the relevant national ministries, by direct lobbying. The elaborate, and reasonably thorough scrutiny of Community legislation practised by the British parliament was not to be found in other member states, except Denmark, where the political parties went so far as to mandate Danish ministers. There were signs however that other national parliaments were beginning to take more interest.

Given however that the Community from its start was a bureaucratic instrument, direct lobbying of Brussels might indeed be the more effective way of exercising influence. Members of the EP, albeit “irresponsible” because lacking fiscal and legislative powers, were influential and were in a position to help. There was a strong case for closer links between them and their national parliaments. There was also a need to educate national bureaucracies and the public in the workings of the Community.

There was comment on the low turn-out in elections to the EP, this was explicable, it was suggested, by the fact that voters, first, did not feel individually affected and, secondly, were not electing a body from which a government would be formed. The relationship between the various parties’ national programmes and their political stances in the EP was obscure, and made more obscure by the fact that, again except for Britain, members were elected on the party list system with no direct constituency to answer to. Nonetheless much good work was done by the EP and there was a strong case for building on that, especially, for example, in the field of “budget discharge”, the review of expenditure on the basis of the reports of the Court of Auditors (cf. the Government Accounting Office in the US or the Public Accounts Committee in the UK).

There was little support, in present circumstances, for giving the EP a full legislative role or right of initiative, or for creating a second chamber, partly because it was argued (but not unanimously accepted) that at this stage in the Community’s development it was necessary for the European Council to retain its powers. Any increase in the powers of the EP would tend to enhance also the powers of the Commission at the expense of the Council. Equally there was no support for direct election of the Commission’s President, though some for a right in the EP to withdraw confidence from individual commissioners.

There was much criticism of the Council’s procedures and in particular of the lack of transparency in its exercise of its twin roles, council of ministers or cabinet and legislature. It was agreed that rules of procedure needed to be established, but dissent over whether it was right that its proceedings should be secret, some maintaining that the present alleged secrecy flouted every democratic standard, but others that it was essential if ministers were to be able to thrash out differences and reach agreed conclusions without having to look over their shoulders at their national constituencies (which perhaps makes the critics’ point?). Things might be improved, it was suggested, if a clear distinction could be drawn between the two functions - the cabinet function being, exercised in secret and the legislative in public, though no doubt that too presents difficulties.

At this point in the debate, it became clear that, for many, the Community was faced with an historic choice, whether to develop in an incremental, evolutionary manner, while retaining in essence the inter-governmental style of negotiation, or to make a quantum leap into a more clearly democratic and accountable organisation. It was argued that the Single European Act, with its introduction of majority voting on issues related to the achievement of the single market, had made the evolutionary process much less viable by undermining accountability to national parliaments and electorates. Majority voting would be a major issue in the IGC. No agreement was reached on these questions and the concept of sovereignty, whether sacrosanct or to be shared, was invoked.

This led to a prolonged discussion of the principle of subsidiarity, with its roots in Catholic doctrine (a non-European definition offered was that decisions should be taken at the appropriate level, taking into account the nature of the issue). Some argued that the concept could not be reduced to a legally-binding text; others that it could be a useful rule of legal interpretation. Politically - it was emphasised that application would always be political - the doctrine would, it was argued, go far to defuse the resentment that electorates might feel that issues of national or local concern were being undemocratically resolved in a distant, unaccountable and opaque bureaucracy. There was moreover a strong case for abandoning the practice of defining the Community’s competences vertically, by sector, and establishing instead horizontal levels of competence across all sectors. If the frontiers of Community competence could be rolled back in some areas, (as indeed had happened in the case of technical and safety standards for appliances), it would have a healthy psychological impact. The principle of subsidiarity should be written in to any new treaty.

Enlargement was discussed briefly. One view expressed was that “deepening” was an essential preliminary to further enlargement; another that it would be unwise to add to the Community’s existing tower of Babel and that aspirants from East and Central Europe should be encouraged to construct a parallel Community; and yet a third that enlargement with its infusion of new thinking would accelerate the deepening process.

Two further issues were discussed: defence in relation to the European Political Cooperation machinery, and European Monetary Union. Defence cooperation, some argued, while a necessary partner to cooperation in foreign policy, was better left to develop via cooperation with the WEU and NATO, a process already under way, which might eventually lead to a full defence element in the EPC, as the European pillar of NATO.

Monetary union was seen by some as the concomitant of the single market, raising no more issues of democratic accountability than, for example, the systems of monetary control prevailing in the US or Germany. Others, accustomed to operational control of monetary policy by governments, saw it as part of the quantum leap referred to, which would remove the right of individual states to execute their own macro-economic policies and, without massive support from the more prosperous, risked exposing the less successful regions to unemployment, emigration and falling standards of living. The issues were not resolved.

To sum up: The Community faced an historic choice and, if it was to develop from a bureaucratic, inter-governmental, treaty-based organisation, a quantum leap into a new organisation was required. That said, the remedies favoured seemed to be primarily incremental: - the EP to use its current powers more boldly and effectively; national parliaments to be encouraged to involve themselves more in Community activities; the Council to attempt a clear distinction between its two roles and to be more open in its legislative role; the citizen to be better informed and educated about the functioning of the Community; the principle of subsidiarity to be established in any new treaty as a guiding political principle and rule of legal interpretation; the procedures of the European Court to be streamlined; defence to be increasingly addressed in the EPC, at first at least through cooperation with the WEU and NATO; and enlargement to be approached with caution.

This Note reflects the Director's personal impressions of the conference. No participant is in any way committed to its content or expression.

Chairman: Sir Christopher Tugendhat
Chairman, Civil Aviation Authority; Deputy Chairman, National Westminster Bank, The BOC Group; Chairman, Royal Institute of International Affairs; Member, Council, Centre for European Policy Studies, Brussels; a Governor and Member of the Council of Management, The Ditchley Foundation


Mr Graham Allen MP

Member of Parliament (Labour) for Nottingham North
Mr Vernon Bogdanor
Reader in Government, Oxford University; Fellow, Brasenose College, Oxford; Member of Council, Hansard Society for Parliamentary Government
Mr William Cash MP
Member of Parliament (Conservative), Stafford; Member, House of Commons Select Committee on European Legislation; Chairman, Friends of Bruges, House of Commons; Chairman, Conservative Back Bench Committee on European Affairs
Mr Nicholas Colchester
Deputy Editor, The Economist; a member of the Programme Committee, the Ditchley Foundation
Dr Christopher Hill
Senior Lecturer in International Relations, London School of Economics and Political Science; author
Professor Nevil Johnson
Nuffield Reader in the Comparative Study of Institutions, University of Oxford, and Professorial Fellow, Nuffield College; author
Mr John Kerr CMG
United Kingdom Permanent Representative to the European Community
Mr Jeremy Lever QC
Fellow, All Souls College, Oxford (Senior Dean); Member of Council, British Institute of International and Comparative Law
Professor David Marquand
Professor of Contemporary History and Politics, Salford University; Member, Policy Committee, Social and Liberal Democrats
Miss Patricia Rawlings MEP
Member (Conservative) Essex South West, European Parliament
Mr Roger Sands
Clerk of the Overseas Office, House of Commons; A Clerk, House of Commons
Mr Nigel J Spearing MP
Member of Parliament (Labour), Newham South; Chairman, House of Commons Select Committee on European Legislation

Professor Daniel Soberman

Professor of Law, Queen’s University, Kingston, Ontario; author; Chairman of various boards of inquiry under the Ontario Human Rights Code, Ontario Human Rights Commission; member of panel of Human Rights Tribunal under the Canadian Human Rights Act, Canadian Human Rights Commission

Mr Anthony Cary

Deputy Chef de Cabinet, Cabinet of Sir Leon Brittan, Commission of the European Communities

Judge David A O Edwards CMG QC

Judge of the Court of First Instance of the European Communities

M Gilbert Guillaume

Judge of the International Court of Justice, The Hague
M Phillippe Moreau Defarges
Professor at Institut d’Etudes politiques, Paris; Adviser to the Director, Institut Français des relations internationales; author

Herr Werner Kaufmann-B
Head of Section, EC Institutional and Legal Issues, Auswärtige Amt
HE Baron Hermann von Richthofen
Ambassador of the Federal Republic of Germany to the Court of St James’s; a Governor of the Ditchley Foundation
Dr Helmut Sigrist
Retired as Ambassador of the Federal Republic of Germany to Athens (1979-84)

Professor Giuseppe Schiavone

Vice President and Director of Research, Institute of European Studies ‘Alcide De Gasperi’, Rome; Professor of International Organisation, Faculty of Political Science, University of Catania; author.

Professor Toshiro Tanaka

Professor of European Affairs, Faculty of Law, Keio University; Secretary General, Nihon EC Gakkai (Japan Association of EC Studies)

Dr Jos
é Pena do Admaral
Economist; Consultant to the Civil House of the President of the Republic on European affairs; Marketing Director of BPI, the leading Portuguese investment bank

Professor George A Bermann

Professor of Law, Columbia University; Editor, Yale Law Journal; Associate, David, Polk and Wardwell, New York; Editorial board member, American Journal of Comparative Law; member: Administrative Conference of US, Deutsch-Amerikanische Juristen-Vereinigung (Bonn); Director and secretary, American Academy of Foreign Law; Vice President, American Foreign Law Association
The Hon John Brademas
President, New York University; Member, Carnegie Commission on Science, Technology and Government; Consultant Panel to the Comptroller General of the United States; Trustee: Aspen Institute, Alexander S Onassis Foundation, Rockefeller Foundation; Member, Board of Directors, American Ditchley Foundation
Mr Michael Calingaert
Director of European Operations, Pharmaceutical Manufacturers’ Association (US), Brussels
The Hon Richard N Gardner
Professor of Law and International Organisation, Columbia University; Of Counsel, Coudert Brothers; Member, Board of Directors, the American Ditchley Foundation
Mr David J Scheffer
Senior Associate (International and National Security Law), Carnegie Endowment for International Peace, Washington DC
Dr James B Steinberg
Senior Research Analyst, International Policy Department, The RAND Corporation, Santa Monica, Ca.
Mr Edwin M Yoder Jr
Syndicated Columnist, Washington Post Writers’ Group