2.2 Assessing The Legitimacy of The EUs TreatyRevision Methods - Risse e Kleine
2.2 Assessing The Legitimacy of The EUs TreatyRevision Methods - Risse e Kleine
2.2 Assessing The Legitimacy of The EUs TreatyRevision Methods - Risse e Kleine
69–80
THOMAS RISSE
Freie Universität, Berlin
MAREIKE KLEINE
Freie Universität, Berlin
Abstract
How legitimate are the EU’s treaty revision procedures, that is, IGCs and the Con-
vention? Since the rejection of the Constitutional Treaty the recurrence to inter-
governmental procedures appears as one way out of the current dilemma. We argue
instead that the Convention method is not to blame for the current crisis. On the
contrary, it increases the legitimacy of EU constitutionalization considerably.
Introduction
How legitimate are treaty revision procedures in the European Union? Since
the 1980s, the EC/EU has been in a semi-permanent reform and subject to
various revisions of its constitutional structure. Several multilateral negotia-
tions were convened in order to amend the founding treaties or to create new
policy areas outside the Communities, respectively. The considerable effect
that the EU’s policies have on the European citizen’s daily life necessitates
asking whether the method of these adjustments is legitimate. In this article,
we focus on two basic models for treaty revisions, namely Intergovernmental
Conferences (IGC), on the one hand, and the combination of an IGC with a
* Research for this article was undertaken in the framework of the NEWGOV Integrated Project (‘New
Modes of European Governance’) as part of the European Commission’s 6th Framework Program for
socio-economic research. We thank an anonymous reviewer for comments.
1
In 2000, a Convention drew up a Charter of Fundamental Rights. In 2002–03, the European Convention
negotiated a Draft Constitutional Treaty. In the following, we will mainly focus on the latter.
determine that these responsibilities have not been met’ (Grant and Keohane,
2005, p. 29).
At first glance, the EU does not face problems of input legitimacy or
accountability. The governments of the Member States that are represented in
the European Council and in the Council of Ministers are all democratically
elected. The European Commission is accountable to these democratically
elected governments as well as to the equally democratically elected Euro-
pean Parliament. Thus, citizens who do not like what they get in terms of
European decisions can sanction their representatives through voting them
out of office. Yet, this is an idealized picture. The real problem of input
legitimacy in the European Union is the combination of multi-level gover-
nance and supranationalism in the absence of strong transnational interest
representation. As a result, citizens often have no idea who can be held
accountable at what level of governance, particularly when their national
governments can be overruled in the Council. This problem is exacerbated by
the all too common ‘Brussels made me do it’ attitude of national governments
mentioned above. One has to acknowledge, though, that EU treaty-making
faces fewer problems of input legitimacy and accountability than everyday
decision-making in the EU. First, Member States remain the ‘masters of the
treaties’ as a result of which national procedures including referendums for
the ratification of international treaties apply. Second, EU treaty-making
requires the unanimity of the Member States so that the accountability prob-
lems of supranational decision-making are less severe.
Another aspect of legitimacy concerns the quality of the decision-making
process itself, throughput legitimacy. Three components are of interest here.
The first one is normally not disputed either at the EU or at the national levels,
namely the legality of the process which is guaranteed by the rule of law in a
democratic polity. The second component constitutes another ingredient of
accountability, namely that it has to be crystal clear who is responsible for
which decision at what level. In democratic polities, the transparency of the
decision-making process and publicity shall ensure this ingredient of through-
put legitimacy. In multi-level governance systems such as the EU, transpar-
ency of the process is often not ensured, no matter how many documents are
being posted on the internet. EU treaty-making also suffers from a lack of
transparency more often than not, given the tendency to overly secret proce-
dures and negotiations behind closed doors. The third component of through-
put legitimacy directly concerns the quality of the process. Proponents of
deliberative democracy (Cohen and Sabel, 1997; Elster, 1998; Habermas,
1992) suggest that decision-making processes that systematically allow for
arguing, reason-giving and mutual learning rather than hard-nosed bargaining
will have a substantially improved chance of leading to better outcomes. The
© 2007 The Author(s)
Journal compilation © 2007 Blackwell Publishing Ltd
74 THOMAS RISSE AND MAREIKE KLEINE
One could object to these claims that the rules of procedure granted the
Convention chairman, Valéry Giscard D’Estaing and the Presidium (a sample
of the Convention itself) considerable influence over the process and over
substantive outcomes. It is certainly true that the Convention’s particular
outcome, a Constitutional Treaty that comprises as well as recasts the EU’s
constitutional law, owed a lot to Giscard’s subtle steering of the deliberations
and his particular use of the rules. However, it is fairly common in complex
negotiating systems such as the Constitutional Convention that some func-
tions are delegated to an actor or a group of actors in order to attain a
mutually beneficial outcome. Moreover, there is little evidence to suggest
that the chairman indeed succeeded in manipulating the Convention in a way
so as to favour the pursuit of his own personal interests and preferences
(Kleine and Magnette, 2006; for a detailed account of the negotiations see
Norman, 2005).
As to output legitimacy, irrespective of the political controversy surround-
ing the Constitutional Treaty, there are several indications that the Convention
indeed produced a better outcome than previous IGCs. First, for the first time
since the early 1990s, there are no ‘left-overs’ to be dealt with in subsequent
IGCs. Second, most observers agree that the Constitutional Treaty increases
the efficiency of EU decision-making in a community of 27-plus members
(through the provisions for a “double majority” and so on). Third, the Con-
stitutional Treaty creates a single legal personality for the EU, an accomplish-
ment that the Amsterdam and Nice IGCs failed to achieve. Fourth, the
Constitutional Treaty improves the EU’s ability to speak with one voice in
foreign and security matters (EU foreign minister, EU diplomatic service
etc.), even though it failed to introduce qualified majority voting in foreign
and security policy.
Conclusion
In this article, we argued that the considerable effect decisions on the EU level
have on the European citizen’s daily life necessarily implies asking whether
the treaty revision procedures of the European Union are legitimate. We tried
to assess its legitimacy by comparing the Convention method with traditional
IGCs. We claimed that the Convention method indeed scores better than
conventional IGCs with regard to:
• input legitimacy (participation of members of parliaments leading to
shorter lines of accountability and to increased plurality of represented
interests);
Correspondence:
Thomas Risse
Otto Suhr Institut für Politische Wissenschaft
Freie Universität Berlin
Ihnestraße 22
Room 105
Berlin 14195
Germany
e-mail: [email protected]
References
Cohen, J. and Sabel, C. (1997) ‘Directly-Deliberative Polyarchy’. European Law
Journal, Vol. 3, No. 4, pp. 313–42.
Elster, J. (ed.) (1998) Deliberative Democracy (Cambridge: Cambridge UP).
Göler, D. (2006) Deliberation – Ein Zukunftsmodell europäischer Entscheidungsfin-
dung? Analyse der Beratungen des Europäischen Verfassungskonvents 2002–
2003 (Baden-Baden: Nomos).
Grant, R.W. and Keohane, R.O. (2005) ‘Accountability and Abuses of Power in
World Politics’. American Political Science Review, Vol. 99, No. 1, pp. 1–15.
Habermas, J. (1992) Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts
und des demokratischen Rechtsstaats (Frankfurt a.M.: Suhrkamp).
Kleine, M. and Magnette, P. (2006) ‘Leadership in the Constitutional Convention’.
Paper presented at the International Relations Research Seminar, 24 October
2006, Princeton University.
Lodge, J. (1994) ‘The European Parliament and the Authority-Democracy Crisis’.
Annals of the American Academy of Political and Social Sciences, Vol. 531,
January, pp. 69–83.
Majone, G. (2005) Dilemmas of European Integration: the Ambiguities and Pitfalls
of Integration by Stealth (Oxford: Oxford University Press).
Moravcsik, A. (1998) The Choice for Europe: Social Purpose and State Power From
Rome to Maastricht (Ithaca, NY: Cornell University Press).
Moravcsik, A. (2004) ‘Is there a “Democratic Deficit” in World Politics? A Frame-
work for Analysis’. Government & Opposition, Vol. 39, No. 2, pp. 336–63.
Moravcsik, A. (2006) ‘What Can We Learn from the Collapse of the European
Constitutional Project?’ Politische Vierteljahresschrift, Vol. 47, No. 2, pp. 219–
41.
Norman, P. (2005) The Accidental Constitution. The Making of Europe’s Constitu-
tional Treaty (Brussels: EuroComment).
Putnam, R. (1988) ‘Diplomacy and Domestic Politics. The Logic of Two-Level
Games’. International Organization, Vol. 42, No. 2, pp. 427–60.
Scharpf, F.W. (1999) Governing in Europe: Effective and Democratic? (Oxford:
Oxford University Press).
Ulbert, C. and Risse, T. (2005) ‘Deliberately Changing the Discourse: What Does
Make Arguing Effective?’ Acta Politica, Vol. 40, No. 3, pp. 351–67.
Weber, M. (1980) Wirtschaft und Gesellschaft (Tübingen: J.C.B. Mohr).
Williams, S. (1991) ‘Sovereignty and Accountability’. In Keohane, R.O. and
Hoffmann, S. (eds) (The New European Community (Boulder, CO: Westview).
Zürn, M. (1998) Regieren jenseits des Nationalstaates. Globalisierung und Dena-
tionalisierung als Chance (Frankfurt/Main: Suhrkamp).
Zürn, M. (2000) ‘Democratic Governance Beyond the Nation-State: The EU and
Other International Institutions’. European Journal of International Relations,
Vol. 6, No. 2, pp. 183–221.