Intervento di Barbara Spinelli alla tavola rotonda “Democracy in the EU: between Theory and Practice”, Istituto Universitario Europeo, Firenze 27 aprile 2018

Partecipanti alla tavola rotonda: Armin von Bogdandy, direttore dell’Istituto Max–Planck di Diritto Pubblico Comparato e Diritto Internazionale, e Mercedes Bresso, deputata del Parlamento Europeo (S&D)

Some preliminary remarks are necessary.

When we speak about democracy and rule of law – i.e. constitutional democracy, a system which is much more than a simple reflection of the will of a majority, and which ensures the separation of powers and strong institutional guarantees for the minorities – we should distinguish between democracy within the Union and democracy of the Union: because we have two levels of decision making, two levels of parliamentary control and as a consequence two levels of sovereignties. Constitutional democracy is today threatened at both national and supranational level. Moreover, we should bear in mind that there are other sovereignties, which have a substantial weight but are not codified nor democratically controlled: I’m referring in a specific way to the market forces, and to the famous formula coined in 1998 by Hans Tietmeyer, at the time President of the Bundesbank, according to whom there is, in parallel to national elections, the “permanent plebiscite of the international markets”. Tietmeyer defended the legitimacy of such plebiscite, equating the latter to the legitimacy of democratic elections: a very questionable short circuit to say the least. Finally there are regional sovereignties, which are becoming more and more important and challenging from the point of view of democracy and rule of law – I’m referring to the Northern Irish or Scottish or Catalan cases – and which are the result of the progressive erosion of national sovereignties, combined with ill-defined democratic rules at supranational level. In the case of Northern Ireland, the citizens’ right to determine their future and their borders is codified in international treaties like the Good Friday Agreement. Future developments of a more decentralized, regional Union could learn much from this treaty.

Let’s begin with democracy in the Union, even if I’m perfectly aware of the intertwining of the different levels I mentioned:

What we are facing today is a double erosion: erosion of the constitutions in the Member States (strong tendency, except in Germany, to emulate the French model of centralisation and pre-eminence of the executives) and erosion of the popular sovereignties (increasingly calling into question of the universal suffrage, as expressed in national elections). This evolution is enhanced by the direct involvement of the EU Commission and of the ECB in electoral competitions, as we have seen in Greece, and by the aversion often demonstrated by these institutions to the constraints set by national elections or referenda. I remember what Mario Draghi said after a delicate Italian election, in 2013: elections come and go, since the EU is composed by democratic States, but one thing remains sure: “Structural budget reforms and fiscal adjustments will continue on automatic pilot“.

The EU Commission and the European Parliament are very active on democracy and rule of law: in relation to Poland, Hungary and other Countries of Eastern Europe like Slovakia. I’m very in favour of such EU struggles, but there is a danger that Eastern Europe, because of ill-defined enlargements in 2004, becomes a sort of convenient punching-bag for the EU, hiding the fact that there is a problem of democracy in the Union as a whole, not only in the East. The strict criteria established since 1993 for the accession countries – the so called Copenhagen criteria – cease to operate once a country has joined the Union as a full member. It’s called the Copenhagen dilemma and it’s still not solved.

And now democracy of the Union:

We are experiencing a progressive shirking of responsibilities towards citizens by EU institutions – Commission, Council, EU agencies – and the European Parliament is not always the exception as we shall see. The increasing power of such institutions goes hand in hand with a deliberate avoidance of responsibility towards citizens not only from a political point of view but also from a judicial one. Such power without responsibility is exerted in different ways, through semantic and political escamotages, and explains the growing disrespect – in EU policies – of the Charter of fundamental rights, the European Convention of human rights, the Court of justice, the European Court of human rights.

As regards the austerity memoranda, the democratic retrogression is evidenced by the way in which the Commission denies its involvement and accountability in policy decisions which are taken by the European Stability Mechanism (ESM, that is an intergovernmental organization), but are nevertheless negotiated, supported and implemented by the Commission and the ECB (the ex-troika). Some ideas are circulating about the reform of the Eurozone and its governance, proposing the transformation of the ESM in an EU Monetary Fund (EMF) with full veto power over Member States’ budget decisions: an even more disturbing evolution, if adopted.

As regards the EU-Turkey agreement on migration, the deal was negotiated by the States but implemented and financed by the Commission: it received a particular name (it was called statement), in order to avoid the control on international treaties normally exercised by the European Parliament.

As regards finally the trade negotiations, the Commission has an exclusive competence, hence an effective power (albeit limited on certain areas where the competence is shared) but the specific responsibility towards citizens is denied or avoided.

I would like to briefly dwell on the last point: the TTIP negotiations, and the discretionary, opaque power exerted by the Commission in this field. In this case the responsibility is not denied – it is on the contrary strongly defended against interferences by the Member States – but at the same time it is restricted and re-interpreted in its relations with the EU citizens. What I call into question, in this case, is not the communitarisation of national trade policies. The federal evolution of the EU is a good thing, but federalism is not an end in itself. It has been originally thought as an instrument intended to facilitate and consolidate policies aimed at enhancing democracy, rule of law, social cohesion and – last but not least – peaceful external policies, in the States belonging to the Union. The federal instrument makes sense if conceived as a bulwark against the return of aggressive nationalisms and centralistic dictatorships in Europe, as well as against social injustice, inequality and poverty. Too many elements of such project are missing in today’s Union. Re-nationalisation of EU policies won’t certainly do the trick, but “more of this Europe” – even if you call it federalist – won’t help.

A vivid example of the wrong use of federalisation and of the transfer of powers to the Commission in trade deals comes from an episode occurred during the TTIP negotiation. When John Hilary, executive Director at War on Want, asked the trade commissioner Cecilia Malmström how she could continue her persistent promotion of the deal – including the most controversial clauses concerning the Investor-state dispute settlement – in the face of massive public opposition, her response – I quote an article written by Hilary in The Independent, on 15 October 2015 – came back icy cold: “I do not take my mandate from the European people”.

So, from whom does Cecilia Malmström take her mandate? Officially, EU commissioners are supposed to take into account the popular will of the Member states, as well as their respective constitutional traditions, and make a synthesis of their diverging aims. Yet the European Commission has carried on the trade negotiations behind closed doors, ignoring the objections coming from the citizens – included a successful Citizens’ Initiative against TTIP – and denying any dependence on them. In reality, as a report from War on Want revealed in autumn 2015, the Commission has been deeply involved in negotiations with lobbies, being dependent (i.e. responsible) on them. Hence the conclusion of John Hilary: “The European Commission makes no secret of the fact that it takes its steer from industry lobbies such as BusinessEurope and the European Services Forum.  It’s no wonder that the TTIP negotiations are serving corporate interests rather than public needs”.

Lack of transparency is an essential ingredient of this misguided conception of the “mandate” granted to the supranational institutions: bodies like the Eurogroup, or the Council’s obscure behaviour in the “trilogues” (decisions negotiated between the Commission, the Council and the Parliament) generate opaque decision making and procedures, out of any democratic control. This is the opinion expressed by the EU Ombudsman, especially on the Council and on the relation between the Commission and the lobbies. I quote a passage of the Mrs O’Reilly’s recommendations of last February: “It is important to note that Member State representatives involved in legislative work are EU legislators and should be accountable as such. Democratic accountability demands that the public should know which national government took which position in the process of adopting EU legislation. Without this “minimum and essential item of evidence”, citizens will never be able to scrutinise how their national representatives have acted. It is also important for national parliaments, in their task of overseeing their own governments’ actions, to be able to know the positions taken by their own government”.

I mentioned the European Parliament, the only really elected body of the EU. On 22 March, the European Court of justice has annulled a decision by the Parliament on transparency of the “trilogues” with a sentence of utmost importance. The Parliament had decided that certain provisional compromises between the three institutions had to remain secret, in order not to hamper negotiations and avoid interferences by lobbies. The Court has denied such dangers, prioritising the citizens’ right to have full knowledge of the decision making in the trilogues.

But let’s be clear on this point: lack of transparency is a symptom, not the disease itself. It makes no sense to have full transparency – as it makes no sense to have a full European sovereignty – if EU policies erode democracies in Member States and are in contradiction with article 2 and 6 of the Treaty. If they are in conflict with the “general principles” of the EU, including the respect of the Charter of fundamental rights, of the European Convention on human rights and of the Constitutional norms of the Member States.