Helmut K. Anheier on Dieter Grimm’s latest book addressing a democratic deficit in the Union.
In November, Professor Dieter Grimm of Humboldt and Yale universities, and former member of the German Federal Constitutional Court, took part in an event at the Hertie School of Governance. The occasion was his recent book entitled The Constitution of European Democracy, just published by Oxford University Press. The book is based on a collection of essays that appeared last year in German under the more compelling title Europa ja, aber welches (“Europe yes, but which one?”). Professor Grimm's central argument, if accepted, could change the way we look at what plagues the EU – and what to do about it. A leading authority on constitutionalism, his basic argument is that the EU suffers from an acute case of faux over-constitutionalisation that, unless addressed at the source, could slowly suffocate the European project.
That the European Union suffers from a democratic deficit is a widely accepted, but Grimm argues that we have identified the wrong institution (the Commission) as chiefly responsible for this deficit and we looked at the wrong institution (the Parliament) for a remedy. In Grimm's view, the true culprit is the European Court of Justice (ECJ) as the supreme seat of judicial governance that excludes the other EU institutions (Council, Commission, Parliament).
Most critically, ECJ rulings and decisions are not subject to national review, placing the ECJ above the popular sovereign – the people in the 28 member states and their democratically elected governments. The ECJ is a proactive court, and over time the rulings and decisions have amounted to formidable body of legislation that affects all EU parliamentarians, administrators, judges, and, indeed, citizens of member countries. As a result, EU citizens are subject to a court over which neither they nor their governments have any control.
Originally, the ECJ was to interpret EU law and see to its equal application across member states. However, by virtue of bootstrapping, three landmark decisions vastly enlarged the competence of the Court: A 1963 ruling established the direct effect principle, by which EU law is implemented in national law without additional parliamentary review. A 1964 ruling established the principle of primacy, and stipulated that EU law trumps national law. In 1991, another ruling made member states financially liable if they failed to implement EU directives into national law.
For Grimm, a professed and deeply committed European, the end result is that of an unchecked institution issuing laws, regulations, and decisions. These come in different forms: some deal with fundamental matters and would normally be found in a constitution; others, and indeed the great majority, are material or secondary law, and could be subject to legislative review. Yet both the foundational and the secondary rules are made at the same level when, as Grimm argues, they should not be. Nonetheless, member states and citizens alike have no choice but to abide by them.
What could be seen as a coup by stealth became acute after the failed attempts to establish an EU constitution. The Commission, Parliament, Council, and some member states resorted to interpreting the treaties as if they were a constitution, and the judgments as constitutional amendments or similar legal status.
In Grimm’s view, and irrespective of their actual merit, the activities of the ECJ create a substantial democratic deficit more serious than those of which the Commission or European Parliament are accused. Together, unchecked judicial governance (ECJ), technocratic policies without politics (Commission), and indirect, weak representations of the popular sovereign (European Parliament) undermine the European Project.
If we accept Grimm's argument, what are we to so? Given that the treaties are already constitutionalised, they should be both re-structured and reduced, limited to fundamental rights, principles, goals, and institutions and their powers and procedures. Everything else should be relegated to the level of secondary law, and subject to parliamentary review. The ECJ would no longer have the unassailable, supreme position it has today, and the EU's political branches (Commission and Parliament) would have the power to pass, accept, and amend laws.
For this to happen, a major stock-taking and vetting of decades of ECJ judicial output would be necessary, a process that Grimm says would take time but would not be overly complex, as one can easily distinguish a constitutional statement from second-order law.
He proposes three related measures: First, to bring the court closer to the European Parliament, the latter must become closer to the people. For this to happen, the relationship between national parties and parties in the Parliament has to be more direct, understandable, and transparent to voters. This would imply a realignment of the party system in the European Parliament with the various national party systems. Second, there must be substantive limits to the areas in which the ECJ could and should become active – and its power relative to the national courts. The final test of jurisdiction should not be market impact but instead substance. In other words, Grimm advocates the primacy of policy fields over markets. Finally, constitutional and judicial constraint on behalf of the ECJ should be combined with a re-politicisation of decision-making – or the primacy of (strengthened) parliaments.
Of course Grimm's diagnosis has been criticized elsewhere (see Christoph Moellers in Leviathan 2015). At the Hertie School event, however, the consensus converged around two points: Overall, Europe has done well with the EU, especially considering the alternatives. However, as the EU's legitimacy deficit “has been caused in large measure by the de-politicisation of political decisions, and by the autonomy of the EU's administrative and judicial bodies”, (Grimm, 2017:35) the way forward is to re-politicise any decision of significant import to member states.
It is long and rocky road from academic treatise to implementation, even for one as policy-oriented as Professor Grimm’s. However, were we to take that road, after 10 or 20 years we may well be a more complex and diverse (if perhaps more unruly) EU with a more transparent, conflictual, and stable democratic union – closer and more perfect in some ways, though not in others.
This article was originally published by the Dahrendorf Forum on 30 November 2017.