democraticlegislatorsolp

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1 Legislative p – a lso a olitics in the EU democracy? matter of Anne Elizabeth Stie, University of Agder Introduction - With the Lisbon Treaty the co decision procedure was officially renamed the Ordinary 1 Legislative Procedure (OLP) and the number of policy areas now subjected to it has been doubled. Many equals this ‘upgrading’ of the OLP with a democratisation of the European Union (EU) due to the expansion of the European Parliament’s (EP) involvement as a co - 2 - ouncil in EU law legislator with the C In fact, the very purpose of introducing co - making. decision in the Maastricht Treaty more than 20 years ago was to meet the growing critique of the European democratic deficit by making the Parliament co legislator on a par with the - Coun cil. However, over the years and simultaneously with the expansion of the procedure to - decision - making processes have also become more informal and new policy areas, co and Héritier, 2004; Reh et al... ). This is especially so since the sequestered (Farrell A msterdam Treaty opened up for the possibility to conclude dossiers after the first reading. Since then the number of so - called early agreements has increased significantly from 28% in 3 - 2004 parliamentary period to 78% in the current parliamentary p eriod. the 1999 Whereas early agreements have been cheered for making the OLP more efficient and effective, the conditions for democratic decision - making suffer (Stie, 2013) . The reason for this is that early agreements are premised on the condition that more or l ess the entire decision making process - - making moment in the formal settings of the EP and the – apart from the final decision Council – takes place behind closed doors in trialogue meetings between a limited number of e Commission. In addition to the informal and actors from the EP, the Council and th inter - institutional processes, the policy - making process inside the sequestered character of the Council is still dominated by the rather impermeable and publicly inaccessible lower echelons 1 In the following, I use co - decision - making and ordinary legislative procedure or the abbreviation OLP interchangeably. 2 E.g. the EP itself: “The Treaty of Lisbon strengthens the role of the European Parliament in the Union and renders the EU decision - making process more democratic” (EP, 2012). 3 http://www.europarl.europa.eu/code/about/statistics_en.htm See EP (Act ivity Report 1999 - 2004, p. 12) and 1

2 of the Council, tha t is, Coreper, the working groups and the General Secretariat. Hence, when taken together and when the focus is on the increase in the number of dossiers adopted after the first reading, the alleged democratic improvements of the OLP represented by the lusion of the EP is arguably more or less counteracted (Stie, 2013). inc Now, whereas there seems to be agreement among OLP commentators that the informal and making processes do represent a democratic problem, the strange thing is sequestered policy - en this is discussed it is first and foremost framed as problematic from the EP’s point that wh 4 of view ( REF And even if this may be a coincidence resulting from the fact that the ). 5 research attention in this field has predominantly been and still is on the EP r ather than the Council, this could possibly be explained by the fact that the trialogue working methods (as we shall see) obviously diverge more from the EP’s than the Council’s own working methods and thus represents a larger gap between what it does ‘at home’ and how it acts in inter - nevertheless institutional arenas. This point notwithstanding, it is strange that when in particular early agreements are discussed, it is so one - sidedly conceptualised as a problem for the EP’s role as a democratically accou ntable legislator. After all, the Treaties do not only commit the EP to democratic ideals and standards, also the Counci l is subject to such 6 obligations . So why is the increasing trend of early agreements which are conducted more or less entirely in inf ormal and sequestered meetings not at all or seemingly less worrying from the perspective of the Council as a democratic legislator than it is from the EP’s perspective? Is it because there are different normative/democratic expectations directed towards t e he EP and th Council respectively? Or is it because the Council is conceived as democratic and/or ough? If it is the latter, then what, more legitimate (according to some other standard) en 4 Also the EP itself has addressed this question and is currently in a process of... 5 uld also be explained by That the EP is more often than the Council the research focus in the OLP literature co the fact that the EP is a much more accessible institution where it is easier to obtain information from debates and documents. Hence for researchers it is obviously easier to conduct data collection under such conditions than unde r the stricter and far less accessible ones in the Council. 6 There are many references to democratic principles in both the Treaty on European Union (TEU) as well as the Treaty on the Functioning of the European Union (TFEU), but the most explicit in thi s connection is arguably found in Article 10 (TEU) which states that: 1. The functioning of the Union shall be found ed on representative “ democracy. 2. Citizens are directly represented at Union le vel in the European Parliament. Member States are represent ed in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratica national Par liaments, or to their citizens. 3. lly accountable either to their Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as clos ely as possible to the citizen. 4. Political parties at European level contribute to forming ill of citizens of the Unio n.” European political awareness and to expressing the w 2

3 precisely, would be the normative expectations the Council has to live up to in order to However, if the domination of informal and closed legitimately fulfil its role as EU legislator? legislative processes are seen as a problem not only for the EP, but for the EU as a whole, then the silence in the co - decision literature on the Council’s putative credentials as a anting. democratic legislator is found w The lack of a more general discussion on what ought to be expected from both the Council and the EP as democratic legislators under the OLP is arguably due to the fact that the overwhelming majority of studies on the OLP revolve around some versi - on of the inter and/or intra - institutional power relations between and inside the EP and the Council. When the focus is on who wins what in the inter - and intra - institutional battle for political power and influence, the analytical frameworks applied seld om include into the power analysis a more substantial reflection of the overall normative context within which the OLP is after all 7 the Treaties, the EP and the Council are set to decide on legal situated. However, t hrough acts that are directly binding o n Union citizens and other individuals who are affected by EU law. And these laws are not only of a technical, administrative or pragmatic character. Rather, OLP acts concern sensitive issues such as data retention, border control, regulation of ical products, environmental issues etc. In other words, OLP acts influence the pharmaceut way goods and burdens that directly affect people’s life choices are to be (re - )distributed. there is general agreement that When decisions affecting such choices are made, ther and ano stricter type of authorisation is required than when administrative and purely technical issues are to be resolved. The problem, then, is that when the OLP is conceived as any other setting where actors battle for the maximisation of power and inf luence, the question of whether the manner in which the EP and the Council execute their duties as legislators corresponds with the character of the tasks (i.e. deciding on binding legal acts), are lost or at least largely downplayed. Hence what the studie s with a power perspective lack is a contextualisation of whether and how the power vested in the EP and the Council through the Treaties are conducted in a manner that corresponds with what can be expected of legislators who are t are binding on all individuals affected by EU law. By this I do not entrusted to make laws tha disregard power studies, they provide important knowledge on how the OLP functions and how the actors interact with one another. Rather, it is to point at a gap in the literature 7 Whereas the purpose of the analytical frame work of these studies are not developed to entail tools for su ch reflections , many do, however, often include minor comments towards the end of the articles on the democratic and other normative implications of the current OLP practice. The point is that these normative reflections are - theoretical’ appendices. not anchored in the analysis proper, but appe ar more as ‘extra - analytical’ or ‘extra 3

4 regardi ng of the OLP’s status as a democratic legislative procedure. However, assessments even for power studies the normative context within which the OLP operates is of interest because shapes and influences the conditions under which decision - making pattern s unfold. it Understanding and explaining the nature of power relations is thus not only tied to how the OLP is actually functioning, but also how it is supposed to be conducted. estered working The aim of this article is to address the question of how the informal and sequ methods now dominating the OLP represent a democratic problem not only for the EP, but for the EU as such, that is, including the Council. Or more precisely, to answer the following research question: Under what conditions can it be argued that the EP and the Council fulfil their roles as democratic legislators under the OLP? Aided by two different theoretical positions, the aim is consequently to discuss what may be the source of the growing discontent with how the OLP is now conducted, especially when dossiers are closed early. The two theoretical perspectives are derived fr om the liberal and the deliberative positions on democracy respectively and are operationalised to contrast two different ways of interpreting what constitutes the moment of democratic authorisation, that is one (liberal) vote - centric and one (deliberative ) talk - centric version (cf. Chambers, 2003). The article has four parts. In first voted to the analysis part, I present the analytical framework. The second part s are de and third and the fourth part holds the conclusion. centric versus talk Vote - - centric : democratic authorisation through th e vote or through discussion makes a general distinction between a vote - centric In her article, Simone Chambers (2003) - centric perspective and a talk on democracy which indica tes two very basic ways of conceptualising wha t constitutes the democratic moment. As the names indicate, a vote - centric position conceives the casting of votes as the democratic mom ent whereas the talk - centric position attaches democratic significance to the opinion - and will - formation process es prec eding the vote. These positions are founded in the liberal and deliberative versions of democracy respectively. One may, however, say that both perspectives have a liberal anchoring, that is, they both defend traditional liberal democratic principles, such as the Rechtsstaat, a fundamental rights catalogue, the autonomy of the individual, representative democracy, separation of powers etc. Both agree that these institutions are necessary mechanisms to ensure that decisions are taken as fairly as possible as neither the liberal nor 4

5 the deliberative version of democracy assume that there in modern, plural and heterogeneous societies will be agreement among citizens on what is the best outcome when collective action decided on. Hence, u nder c oblems are to be pr onditions of pluralism where there is no prospect of reaching a consensus on how everyone should live their life, the way to determine erely be about their substance. Consequently, given whether decisions are legitimate cannot m proposal cannot function as the sole motivati on to support a decision, that the substance of a the legitimacy of decisions must therefore decision - making first and foremost rest on the procedure itself . There is, however, disagreement between a liberal and a deliberative version of democracy on how this procedure should look like and where to put the emphasis. For liberals, the aim of democracy is to find a mechanism “...to aggregate individual preferences into a collective choice in as fair and efficient way as possible. Each pers on’s preferences should be accorded equal weight. Moreover, preferences are sacrosanct because they reflect the individuality of each member of the political community (an exception to this arises only in the case of racist beliefs that deny the equal righ ts of all citizens)” (Miller, given prior to actors entering 2000: 9) . As preferences , interests and values are exogenous or the political process it is the final decision - In taking an vote that counts. making moment/ exogenous position on how individuals’ preferences and values are formed, social interaction prior to aggregation consequently normatively for the and collective processes do not matter - making. Hence a legitimate democratic order, according to fulfilment of democratic decision rder where everyone’s preferenc es and interests have an equal chance to liberals, is an o compete for attention in a fair manner and where the final vote settles or ends the process. fair, the vote represents the moment of consent When the aggregation procedure is deemed an d democratic authorisation. This does not mean that there is only one aggregation system that can fulfil the above expectations even if the above - mentioned principles will limit the type of choices that are held to be acceptable (cf. excluding racist views ). Rather, liberals are agnostic to whether, for instance, a majoritarian or a pluralist system represents the better one . It is up to every political community to decide which system that suits them best. “...a form of Deliberative democracy, on the other hand, is fo unded on the idea of government in which free and equal citizens (and their representatives), justify decisions in a process in which they give one another reasons that are mutually acceptable and generally conclusions that are binding in the present on all citizens accessible, with the aim of reaching but open to challenge in the future” (Gutmann and Thompson, 2004: 7; see also Forst, 2001: 5

6 346; Chambers, 2003: 308). Hence, deliberative democracy underlines the importance reason attached to arrangemen - ts where (reversible) policy proposals can be tested through conducted in inclusive and open processes prior t o actual decision - taking. giving The - and will - formation processes prior to the vote stems from the the opinion emphasis on – collective processes that the political and/social context matters deliberative assumption ts. affect how actors come to think, argue and defend their preferences, values and interes Unlike liberals, then, defenders of the d that values, eliberative version do not contend preferences and interests are fixed once and for all prior to political processes, but rather that others malleable and can be in fluenced though interaction with are . F rom the perspective they of deliberative democracy, then, “...it is not the simple consent that contains the moment of legitimacy but rather a process of accountability in which citizens have objections answered and hear and evaluate the reasons. The approval or disapproval of other people’s deliberations reduces democracy to voting” (Chambers, 2004a: 397). Democracy is consequently conceived . In this sense, – as a process and practice of public justification not merely a voting moment deliberative dem ocracy is ‘talk - centric’ in underlining the process preceding the actual decision - making moment as opposed to liberal or aggregative theorie s of democracy which - are ‘vote centric’ where the aim is to find the best mechanism to translate already fixed indiv idual preferences as accurately as possible into a collective . decision In order to discuss whether the EP and the Council fulfil their roles as democratic legislators central the liberal and deliberative positions need to be operationalised. I n this context, the pertains to how the exogenous - endogenous distinction theoretical difference to be looked at democratic prescriptions that can be investigated empirically. Howe ver and as translates to , i t should be noted that both the liberal and t he deliberative positions share a mentioned above n commo foundation , that is, they both contend that d emocratic decision - making is democratic dependent upon :  procedure s ensuring periodic elections of representatives to legislative bodies ;  popul arly elected representatives as the main decision - makers – there is, in other words, a normative hierarchy between popularly elected representatives and unelected ; officials  openness around how representatives of the people have deci ded (either through argumen ts or votes ); (same rights and duties) .  equality among the popularly elected representatives 6

7 As t hese basic democratic principles are common t version s of democracy they will not o both here . Rather the disc ussion in this article starts from how the as such be further discussed on and prescriptions on how these liberal and deliberative positions differ in their interpretati 8 realised in practice. to be principles are For liberals the democratic moment revolves around the aggregation process or the vot ing procedure. For an empirical analysis, two things are important here. Firstly, to ensure that all preferences compete on equal terms, the formal decision - makers – the popularly elected representatives in the EP and the Council – must have the same right s and duties . Hence every actor must be ensured the same voting rights and access to the decision - making table. Secondly, f ty or citizens to see how their representatives voted, transparency and intelligibili of voting is essential. This pertains to available voting records which include information and explanation about who voted and what position they defended. The talk - centric version, on the other hand, requires that an act that is binding on all affected - must at some point during the decision king process be subjected to a publicly accessible ma debate among a representative selection of popularly elected representatives prior to final decision making. This does not mean that every step of the process must be conducted - but an – in order to be democratically authorised – according to these demands, OLP dossier process be subjected to the type of democratic scrutiny the must at some point during the The criterion contains three important features: (1) a forum where above conditions require. 9 n take place ; (2) openness to ensure public justification towards a third party debate ca - makers in order to maximise audience; and (3) a representative selection of elected decision the likelihood that al l relevant viewpoint are raised. It should be noted that he re the two perspectives are ‘stylised’ in order to underline the main difference on how the moment of democratic authorisation is conceived. In this sense they function as heuristic tools or ideal models. , however, not mean that the vote - centric This does strand completely disregards deliberation as a factor in public policy making or that the talk - - 8 I will , however, not assess the quality of the electoral link as such, neither with regard to the national parliaments nor the EP. Even if the quality of the electoral links can be discuss ed, I start from the premise that they are functioning in a satisfactory manner . This choice could, of course, be questioned, but as the focus of article is not the electoral processes themselves, but rather how the legislators act when they are in office, I contend that the quality of the electoral links can be taken as a valid premise for depa rture of this article. 9 I.e., not just a random and ad hoc setting, but a formal, institutionalised and permanent setting where it is a re binding to all are decided expected that decisions that 7

8 centric strand is opposed to bargaining and/or voting. A viable and relevant account of democratic legitimacy must p discuss ing what a policy ay attention to both the need for it must be conducive to the fact that at and proposal is all about prior to bargaining and voting some stage deliberation must end and a decision must be taken even if agreements has not been reached. For the latter bargain suitable tools/mechanisms . ing and voting are In the following I assess the EP and the Council first according to the vote - centric and subsequently according to the democratic expectations of the talk - centric perspective. The OLP from a vote - centric perspective concentrating on the aggregation process, the degree to whether the EP and the Council In fulfil their roles as democratic legislators depends on their ability to ensure a fair voting the political process procedure. As preferences, interests and values are fixed prior to entering what matters is whether the MEPs and the Council ministers have equal voting rights and subsequently that the votes cast are publicly accessible and intelligible to the citizens in order to ensure accountability. The EP In the EP, OL P proposals are first treated in the responsible committee where a report is voted upon among its members and subsequently sent to the plenary for In committee, a final vote . to vote... all members have the right Even if the committee is a smaller format n ot containing the total number of MEPs, it is composed of a representative selection among the political - It can thus be argued that equality is ensured in the sense groups and non attached members. that the committee constitutes a microcosm of the various preference sets represented in the EP. What is more, the committee is not the final stop in a legislative process, to conclude a dossier (either in the first, second or third reading), the proposal must be treated in the plenary and the right to vote. where all MEPs have access With regard to intelligibility of votes in the EP, the Parliament’s rules of procedure (rules 10 - 169 ) states 165 there are basically four ways of voting in the EP, either by the (1) show of 10 But note also tha Items adopted in committee by an overwhelming majority (fewer than one - tenth against) t ‘ are taken in plenary without debate (unless requested by a Group of 40 members) and are subject to a single vote s that is be open to ut amendments (unless one - tenth of the members – individually or by Group – request witho (Corbett et al., 2007: 172). amendment)’ 8

9 11 12 or by (4) roll calls. hands, (2) electronically, (3) secret ballot From a transparency perspective, it is the latter that offers the best accountability protection as this is the only time where individual MEPs’ votes are formally registered ‘ ...first in the annex to the minutes xt day, and later in the translated minutes which come out in the Official which appears the ne - Journal about three months later (although unofficially a print out is available in the press room w ithin half an hour of the vote)’ (Corbett et al., 2007: 175). Roll calls are, how ever, not the most widely used as they must be requested on a case by case basis and need the support of one of the political groups or at least 40 MEPs before the vote is to take place. Settembri (2005: 647) estimates that only one - quarter to one - third of the total number of votes taken in the EP are subject to roll calls and that this result is not sufficient for a democratic monitoring 13 of votes in the EP. In most cases, votes are taken by the show of hands which gives no possibility of tracing who vote d for what as it only shows how many supported and how many rejected the proposal. When votes are taken in this way, the group coordinators point their thumb up or down to indicate to fellow members the political group’s position on a specific vote. Electr onic voting is used in cases where the EP President is uncertain about the vote and shows how many voted yes and no as well as the number of abstentions. Also in this case personal votes are not displayed. With regard to explanations of votes the EP seems to have the opposite problem of what we are addressing here as rule 170 of the Parliament’s rules of procedure rather lists the restriction on how and when it is possible to state the reasons for the votes cast. So far only voting in plenary sessio ns have been assessed. There are two ways of voting in by roll call votes (see rule 19 edure), 5, EP rules of proc committee, by the show of hands or (Settembri, 2005: 648). Given that the openness of although the latter is ‘...extremely rare...’ 11 Secret ballots are rare and h ave not been used in OLP processes. They are, however, obligatory for the ons of the Commission President, Ombudsman as well as the President, Vice - Presidents and Queastors of electi the EP (Corbett et al., 2007: 176). 12 See rule 167 EP’s rules of procedure. 13 Cf. Neuhold (2007: 7) quoting Hix, Noury and Roland (2007) report that one - third of the votes cast are roll - call votes. It should also be noted that since roll - calls are optional, they are often used strategically for instance to embarrass and highlight internal divergence in other political groups and/or to signal to the Council the size of the majority supporting the EP’s position. For this reason, it should be remembered that the results from studies merely based on roll - calls must be treated with caution as MEPs may vote differently when they know that their Carubba et al. (2004); Hix et al. (2005, individual vote wi ll be publicly recorded. For studies on roll - calls, see, 2006). 9

10 committee d ebates are not as good as plenary sessions, committee voting suffers and is consequently also less transparent. This also affects voting in plenary debates as: ...the only information reported in the minutes is whether the committee has approved an amendm ent or not, and there is no chance of finding out who actually supported or opposed it (unless the vote was unanimous). The procedural page of all reports gives only an indication of the result and does not say how each member voted (Settembri, 2005: 648). Altogether, even if it is not impossible to find out how individual MEPs voted in committee and in plenary, the Parliament’s system for reporting on the votes cast is not satisfactory. Settembri (2005: 650 - 1) sums up the EP voting system in the followi ng way: ...the EP voting is neither entirely secret nor fully open, but somewhere in between. Where voting is not explicit ly secret (... ) or deliberately fully transpare nt (by roll - call ) (...) , voting is public by name only, because the voting system excludes any possibility of individual accountability. Contrary to the practice in most national parliaments, the EP works on the basis of unrecorded deliberations with fully transparent votes taking place only where explicitly requested. If we in addition take i nto consideration that the debate and the casting of votes are separated in time, i.e. that a vote does not follow directly after a debate, it can be very hard to get an overview of the situation. In order to provide full intelligibility of voting, the EP should go for roll - call votes on every dossier both in committee and in plenary sessions as this gives citizens the possibility to easily get an overview of the MEPs individual voting patterns. The Council In the Council all the vote [ to be completed ]. right to ministers have the rules of procedure (Article 7 ) states that With regard to intelligibility of votes, the Council’s lanations of votes taken in ministerial meetings during legislative the results and exp 14 shall be public. procedures This covers both the adoption of the Common Position taken during the procedure, the final outcome of a legislative act as well as the results of votes taken in the Conciliation Committee (Bauer, 2006: 373). We saw that the EP votes mostly by raising hands and only occa sionally by full roll call votes. In the Council the voting system is arguably even more implicit (due to the secrecy of meetings prior to the dossiers reach the ministers and the propensity to act by consensus even where qualified majority applies) even i f roll calls do occur. However, with the establishment of the register (in 1999), the formal reporting of votes has become better and, unlike the EP, 14 Renshaw and Wallace For an overview of the historical development of Council voting rules, see Hayes - (2006: chapter 10). 10

11 information is now given on who abstained and/or voted against an act, that is, on those acts where votes The voting chart attached to the Council minutes or in were explicitly contested. 15 of legislative acts show the results of votes, who voted for, against the monthly summaries or abstained. I n these documents, the member states, the Commission or the Council can attach statements explaining what is in their view the weak part or the problem with the outcome of the vote, but attaching such statements is not obligatory. In addition, the 16 In other words, beyond the Secretariat publishes a press release from each Council session. information of who voted what, the explanation of votes is voluntary and appear when the member states or Commission want to m , Hagemann and De ake a statement. In their study Clerck - Sachsse (2007) found that after enlargement membe r states have been using this opportunity more often and is arguably a way of stating disagreement without blocking the vote. Mattila (2004) contends that when the member states do not find it worthwhile either – al and/or they will not get valuable media attention because the issues are not very controversi in the national public sphere they will abstain fro m reporting dissent. Moreover, ‘ In a – system that requires agreed decisions to be implemented in domestic law, consensus encourages compliance, and an outvo ted government might evade this’ (Hayes - Renshaw and Wallace, 2006: 278; see also Hagemann and De Clerck - Sachsse, 2007: 20). Another point and similar to the situation in the EP, also Council voting procedures are dossiers (Mattila, 2004: 48; see also separated from the deb ates on the re levant OLP Bauer, 2004). In other words, “A” points in cases belonging to a different policy area may be decided by a different Council configuration in order for a decision not to have to wait until the next 17 meeting o f the responsible Council configuration. full intelligibility of voting is not complete in either of the institutions. However, t he In sum, Council is doing well in that it provides a voting chart of how each member state voted, but explanation/justifica tion of the votes is optional and should be made obligatory . Even if the votes are public in the EP, the intelligibility of voting suffers seriously as roll - calls are not the mechanism most commonly used. When assessed from a vote - centric perspective, we m ay therefore argue that the Council has a better voting system for ensuring than the EP 15 See, Council (IV). 16 This service has been available since 1997 (Hayes - Renshaw and Wallace, 2006: 278) 17 What is more, voting results are categorised according Council configuration and not for instance according to policy area, decision - making procedure or voting rule (unanimity o r QMV) (Mattila, 2004: 35, 48). For numbers (until 2004) according to member states as well as policy area, see tables 10.3 and 10.4 in Hayes - Renshaw and 4). - Wallace (2006: 283 11

12 f the votes cast as the Council always provides a publicly intelligibility and transparency o . available voting chart centric perspective The OLP from a talk - - centric perspective and readjust the theoretical lens to the process prior If we move to the talk making moment, the crucial issue is the quality of the conditions - to the final decision the opinion - underpinning and will - formation processes leading up to the votes in the EP and the Council. The EP he EP committees and plenary sessions are organised in such a way that makes it likely to T - expect that positions and counter positions can be tested and scrutinised in an open and accessible man ner . Moreover, it is particularly the interplay and the division of labour between committees and plenary sessions that tog ether provide for a forum where arguments can be tested in a democratic manner . Why is that? On the one hand, the committees function as settings where d ossiers can be discussed more thoroughly. Here the number of MEPs is reduced, but committees nevertheless ensure a representative selection of MEPs. The interaction is more informal and seemingly conducive to exchanging and responding to arguments. The ple nary, on the other hand, is a setting with a significantly higher number of participants which from the outset makes a thorough discussion in the deliberative sense more difficult. Hence plenary sittings are more formal and less conducive to spontaneous di scussion. However, even if these institutional constraints may make it possible that the MEPs themselves have already made up their mind and are presumably not very inclined to engage in thorough deliberation with each other, the plenary is a forum – to a greater extent than committees – where the MEPs present and justify their positions towards the outside world. What is more, the EP plenary sessions are easily bates and for interested citizens it is thus accessible both with regard to documents and de poss ible to monitor their MEPs by scrutinising the suggested amendments and speeches they make. In addition, the plenary is a setting where it may be possible for the MEPs to hold each other to account for their conduct in other (more secretive) settings such as the trialogues and the Conciliation Committee. In this sense, the plenary setting in particular thus becomes a setting compatible with public justification and account - giving. In sum, the division of labour conceived as an institutional set - up ensuring between committees and plenary sessions can be 12

13 a sequencing of deliberative tasks where the former performs the more detailed and explorative work and the latter is a setting where the MEPs defend their positions. The division of labour between committee and plenary also ensures inclusion of the views of affected parties at both levels as the MEPs are directly and substantially involved at all stages of the policy process. Unlike the Council, the process of moulding a collective will is not - sourced’ t ‘out n elected o unelected officials. Hence the normative hierarchy betwee politicians and experts is respected in the Parliament. In this sense, the formal set - up in the EP does not only allow for de bate prior to decision - taking, it also ensures a democratic op inion - and will formation process. - These democratic qualit ies notwithstanding, the OLP ’s overall problem is tha t these features are seriously weakened due to character and scope of informally established rules and practices. This pertains first and forem ost to the extensive usage of the trialogues, but also how the Council is organised internally . 18 The democratic challenge of trialogues In short, the problem with how the trialogue system functions today pertains to the scope and t now i scale with which i nfluences the co - decision processes. This results in the following democratic problems: Trialogues (i) interrupt the collective opinion - and will - formation - processes in the EP; (ii) they keep crucial parts of the decision making process away from the c eye and thus reduce the level of openness; (iii) they reduce the number of decision - publi makers; (iv) they are not composed of a representative selection of elected participants hence citizens cannot be sure that all positions have been voiced and taken into consideration; (v) they make co - decision less intelligible for citizens as the emphasis is on informal and secret meetings; (vi) they make it harder for citizens to know what decision - makers are deciding and hence also more difficult to hold them account le ; (vii) they (may) weaken the quality of ab dossiers. One of the dem ocratic qualities of the co - decision mentioned above was that the division of labour inside the EP is not violating the normative hierarchy between elected and unelected 18 Trialogues are informal settings where a handful of representatives from the EP, the Council and the Commission meet to sound out differences and broker deals that they later present to their respective houses. Trialogues now take place at all stages of the OLP process. For a more thorough description and evaluation of see Stie (2013). trialogues, 13

14 actors since it is , firstly, the MEPs who are involved in all stages of the decision making - process and, secondly, because the EP committees are representative of the EP as a whole. Moreover, the division of labour could be conceived as a sequencing of deliberative tasks ensuring a democratic opinion - and will - formation process in the EP. moments/ er, the internal process between committee and plenary is to a significant extent Howev disconnected due to the constant pace of trialogue meetings. When committees and plenary sessi ons become less important this also deprives Union citizens and other affected parties of their right to justification. Thus, trialogues represent a serious obstacle to the democratic process of opinion - and will - formation process taking place in Parliamen t and hence to a large extent disqualify the democratic fe atures of the EP’s process. T he impact of trialogues is exacerbated when agreement is reached in the first reading as the process is even more informal at this stage and completely impermeable for c itizens and other affected parties as the institutions have at this point not reached an official position. In this way, the trialogues circumvent the formal set - up of the EP which, in principle, at least ensures that there is one democ where decision - makers defend their positions on a regular forum ratically regulated - decision - making is rather that the scope and basis. However, the established practice of co scale of trialogues keep the majority of important and decisive legislative discussions more or less constantly outside the public radar. Trialogues also harm the criterion of inclusion as there are only a handful of people present and neither the Council nor the EP participants constitute a representative selection of their respective houses. Rat her, in the EP the larger political groups have become more dominant as they are often occupying the key positions (rapporteurs, committee chair, group coordinators) and thus become decisive actors. In the Council, delegates from the country holding the Preside ncy dominate (i.e. officials from the working groups, Coreper, potentially the minister). From a deliberative democratic perspective, the problem with closed settings under such circumstances is that the deliberation that may take place could be too narrow and fail to “...reproduce the pluralism of the public in the private” (Chambers, 2004a: 390). Trialogues risk being dominated by ‘private reasons’ instead of ‘public reasons’ which means that the arguments presented are not arguments that all could genera lly accept if they were - presented in a publicly open debate (i.e. egoistic and self interested reasons). The problem is not necessarily that trialogues only contain a limited number of participants. This could be of the interests and positions in the EP and Council legitimate if they had been representative respectively and/or had the results of trialogue deals been properly tested in a publicly 14

15 accessible manner after the meeting had taken place and before a final decision was taken. Instead, the compositi on of trialogue members challenges the principle of representation as we cannot be sure that all positions have been taken into consideration when, firstly, there is by not a representative selection of MEPs and, secondly, when the Council is not represented are ( elected representatives. ) presented to the EP Moreover, trialogue outcomes often - it - or - leave - it’ deals and not as a starting point or committees and plenary sessions as ‘take ogue participants (that basis for a democratic legislative process. As for the Council, the trial s from the member state holding the Presidency) usually is, the permanent representative orient and consult the permanent representatives and not the ministers concerning the acceptability of a trialogue outcome. How can Union citize ns trust that their positions have been properly voiced and considered under such circumstances? Whereas the interaction between the EP and the Council has increased significantly (at all levels) with the introduction of co - decision (Corbett et al., 2007: 242) and also improved the institutional relations, this has seemingly happened at the expe - nse of the intelligibility of inter the procedure as it has been accused of being a complicated procedure where the protracted process of informal inter institutional interaction through trialogues renders it very hard for - the public to get a grasp what is going on during the process (e.g. Bostock, 2002; Andeweg, 2007; Bunyan, 2007: 2; Fouilleux et al., 2005: 617). The inclusion of elected representatives - cannot compensate for the insulated and non transparent procedural features because the latter deprives the c itizens of the chance to put co - decision - makers to account. In this sense, the trialogue system is not a procedural feature that induces, but rather deters public reason - giving towards affected parties. What is more, the trialogues have seemingly also ma de the OLP more bureaucratised, encumbering political input as the focus is on reaching deals as quickly as possible and then present it to the EP and Council for approval. Whereas the institutions have done a lot to improve the relations between them, suc h as coordinating calendars, working methods and streamlining the functioning of the trialogues in the Joint Declarations, their relationship to Union citizens has been neglected. It could thus be argued that the trialogues make the EP and the Council more inward - looking, minding their own deals and discussions thus ‘forgetting’ about the public’s right to know what they are up to. The effect is that the procedure could be - conceived more as an inter institutional battle between the EP, the Council and the C ommission rather than a political battle over the best course of action as the citizens find it 15

16 hard to detect what the political stakes really come down to. In other words, the institutions’ duty to identify and articulate politically salient issues and d ilemmas in an open and easily understandable manner suffers. This is especially so concerning the commitment to close Joint Declarations underline dossiers as quickly as possible in early agreements. The efficiency and transparency, but whereas there are m any paragraphs on how to ensure efficiency, the transparency and accountability aspects are merely mentioned not developed. The Council , however, not only the ’s democratic credential, also the trialogues that affect the OLP It is internal organisation of ouncil contributes to the problem. Unlike the EP, t he Council the C does not live up to its role as a democratic legislator when seen from a deliberative democratic perspective . The problem is that it is primarily the lower echelons – the working groups, th e Council Secretariat and Coreper – that take care of the daily work on OLP dossiers. Hence the important collective opinion - and will - formation process prior to actual decision - ther the taking is not in the hands of the people and their (elected) ministers, but ra . At the ministerial level, on the other hand, the process is better unelected Council officials described as an aggregation of preferences rather than a collective forming of a common position. In this way, Union citizens are deprived of a setting where arguments are presented, tested and justified in a publicly accessible manner. The meetings below the ministerial level are all closed and conducted in camera. Apart from provisional agendas, there are no working documents available from these meeti ngs and it is only the Commission that has access to Council meetings. The EP and the public, on the other hand, are generally excluded from knowing what and how dossiers are discussed in the working groups and in Coreper. ce of unelected officials renders the openness of ministerial Consequently, the heavy influen meetings de facto less valuable from a democratic point of view. Open ministerial meetings function at best as settings where citizens can view the adoption of already reached agreements. In thi s way, the institutional interplay and division of labour between working groups/Secretariat/Coreper, on the one hand, and the ministerial setting, on the other, does not comply with the conditions for a democratic sequencing of deliberative tasks/moments as is the case in the EP since the Council officials have no authorisation to speak on behalf of affected parties. It is only the ministers who have the electoral foundation to be the citizens’ spokespersons, but in leaving almost the entire legislative pr ocess in the hands of the I t is not unelected officials, they fail to live up to the requirement of public justification. 16

17 enough merely to be elected as representatives they must also earn their right to speak on behalf of citizens. This is only achieved t o the extent that they are willing to explain and justify their decisions in a setting where the public can actually watch them ‘in action’. In with the requirement in the Dag Hammarskjöld other words, Council ministers are not in line “Only he dese rves power who every day justifies it ” as slogan the exercise of power is not satisfactorily fused with public justification neither at the EU level nor at the national level. The Council’s main challenge is therefore that there is no democratic process of collec tive - formation only at best a democratic voting or decision - taking moment: will Unlike most other legislatures, the Council members do not pass policies according to a set of policy preferences publicly announced to the full population affected by these p olicies. It is thus often difficult for the constituencies to have a clear overview of all governments’ positions on a (Hagemann and De Clerck - Sachsse, 2007: 40). specific policy issue There is much talk about the fragile status of the EP in the hearts an d minds of European citizens, but they should perhaps have the same worries about the Council. It is difficult to ignore that the internal organisation of the Council suffers from serious democratic deficits - ality of co - decision making. The indirect which consequently also affect the democratic qu chain of representation is from the outset a weak democratic mandate. To function as a democratic legislator the Council should consequently be organised in a way that aims at compensating for this shortcoming, not the other way around where it shuns publicity and its obligation to justify decisions. The ministers do not even meet the legitimacy requirement on which the intergovernmental logic rests . Here, the ministers should at least comply with what the principle demands and have established a practice of reason - and of indirect representation account - giving in their respective constituencies at the national level. Instead, citizens are merely cut off with a press conference or statement towards the end of the pro cess and this does not comply even with the minimum democratic requirements. The implication of the intergovernmental logic underpinning the Council’s organisational set - up effectively distorts ion: the legitimacy of the ministers’ indirect chain of representat Secrecy creates and reinforces the informational and capacity asymmetries which plague the relationship between national executives and national parliaments on European issues. It precludes national parliaments from having sources of information alte rnative to the accounts offered by national ministers.. . This renders it difficult not only to know what has actually been said in such meetings, but especially why decisions were adopted. (Menéndez, 2009: 303, see also Schneider and Baltz, 2005: 23). In fact, the very basis on which the intergovernmental principle of indirect representation rests can itself be questioned. Many studies have s hown that the Council is not so 17

18 19 intergovernmental after all, but rather a highly integrated and supranational insti tution. Hence the principle of indirect representation is not enough to legitimise the ministers’ delegated powers which subsequently also renders the intergovernmental evaluation standard egislative process, it also insufficient. This is not only detrimental for the supranational l seriously affects the national level and the national parliaments’ ability to conduct an informed and enlightened scrutiny of their government. In the Council, the lower level bodies (working parties, Coreper, Secretariat) pla y a significant role for the preparation and articulation of the Council position. It is therefore pertinent to address how the internal relationship between the working parties and Coreper, on the one hand, and the ministerial level, on the other, affects the Council’s status as an institutional actor with ( question ed whether the indirect) popular anchoring. It can thus be in direct electoral link is still “valid” given the heavy involvement of the non - elected officials in the legislative process. In other words, to what extent can it be argued that the national ministers can be seen as the citizens’ representatives also at the European level when they are acting in the Council and thus validate the intergovernmental view that the Council is a democratising factor in the EU? My conclusion, as we shall see, is that they cannot. The reason for this is expectedly due to the indirect nature of democratic representation in the Council, but not because deliberative democracy is necessarily incompatible with indir ect representation as such. The problem with the indirect chain of representation in the Council is that this is not the primary work setting of national ministers and thus that their job as ministers in the member states are too time - consuming in themselv es to be compatible with the time and attention needed for legislative work at th e European level . By this I do not mean that the Council as such neglects its duties and tasks. The problem is the extent to which the ministers are forced to neglect their du ties as democratic representatives in the Council since they must delegate the majority of the work on legislative dossiers to Coreper, the Secretariat and the working parties. More precisely, the Council’s composition of national ministers may have a so und intergovernmental or national logic, but it does not withstand the logic of democratic representation in a deliberative sense as long as the national ministers do not really have the 19 This is so even in the second pillar. See, Lewis (1998, 2000); Curtin (2007b); Smith (2003); Duke and Vanhoonacker (2006); Sjursen (2007); Cameron (2007). 18

19 time to sit together and collectively mould and discuss legislative p roposals prior to actual making. The difference between the EP and the Council is here striking and - decision illustrative. MEPs are ‘hands on’ throughout the legislative process and do most of the work f themselves. And, more importantly, they sit together irst and foremost in committee, but also in plenary sessions to discuss and find solutions. - In the Council it is the working parties, Coreper and the Secretariat that take care of the day dossiers, including the contacts wi - business concerning OLP day th other actors. OLP to dossiers have been prepared first by the working parties and then filtered and further refined by Coreper be to the Council system estimate that 85 fore they reach the ministers. “Insiders” per cent of all decisions taken in the Council are not subject to any discussion, but simply 20 d without any further ado as “A” points at the ministerial level. adopte Now, it may be objected that the work of the Council offi ey can - man - show” where th cials is hardly a “one at least not without repercussions. Rather, operate independently of or sideline the ministers – they are highly dependent on maintaining good relations and trust in their respective capitals (Hayes point procedure says - Renshaw and Wa llace, 2006: 80). Although the “A” a nd “B” something about the importance of the preparatory bodies, Hayes - Renshaw and Wallace - 80) underline that a dossier – (2006: 79 and particular a controversial one – is usually sent up and down the Council hierarchy before a final d ecision/vote is taken. In other words, when a final decision is to be taken at the ministerial level it is not the first time the ministers hear of the case. In addition, Hayes - Renshaw and Wallace (2006: 48) also point to the fact that ministers have to pr epare themselves prior to the meetings and thus that ‘ ...the heavy and repeated engagement of many national ministers in the Council reveals a pattern of transnational involvement that marks the EU out from other forums for ne gotiations between governments .’ However, the permanent representatives are not at all times following strict orders from member states. Given the permanent character of Coreper, the shifting Council configurations as well as the rotating nature of the Presidency, Coreper, in particul ar, represents a much needed continuity, expertise and institutional knowledge. Many times – and especially with regard to smaller member states – there is initially even no official opinion and the permanent representatives are more or less free to form a member state’s position (e.g. Lewis, 1998: 490 - 19

20 1). This obviously opens up for a considerable room of manoeuvring and influence (Rihnard, 2002: 202). In sum – committees and plenary – are organised in a , whereas the formal settings of the EP are conducive to a democratic opinion manner that and will - formation process prior to final - decision - making, informal inter - institutional trialogues as well as the secretive working methods dominating in the Council do not . This also the case as both trialogues and t he internal Council processes are dominated by unelected officials. Concluding remarks In this article I have discussed the Council and the EP’s roles as democratic legislators under the OLP. To guide the discussion, two different views on what constitutes the moment of democratic authorisation have been applied – one liberal vote - centric perspective and one deliberative talk - centric position. These perspectives give rise to different accounts on how to understand democratic representation and accountability. The analysis shows that from a vote - centric perspective – even if not complete – the EP and the Council come a lot closer to meet the expectations of a democratic legislator from a talk - centric position . than when seen - In fact, from a vote centric perspective, the Council performs better than the EP in that the former ensures a voting chart stating how every member state voted in a given OLP process. votes which provides information on how every MEP In the EP, on the other hand, roll call voted is the exception. Instead, most votes are taken either by the raise of hands or electronically only summing up how many pros and cons a proposal receives. And even if most MEPs follow the party line w hich makes it easier for citizens to guess what their MEPs voted, the EP’s voting policy is still not satisfactory from a vote - centric perspective. When the analytical lens is moved to the deliberative and talk - centric position, the picture is different. – the committees and the plenary – together Here, the formal settings of the EP ensure a democratic sequencing of deliberative moments ensuring that citizens can follow the process prior to the final decision - making moment. This is also the case because bo th committees and plenary sessions are easily accessible through documents and debates. Whereas the formal setting of the EP has several democratic qualities, the scope and extent to which the legislative process is now dominated by informal working method s render these - - fought struggle to become an equal co qualities more or less passive (Stie, 2013). In the long 20

21 legislator with the Council, it could be argued that the EP has compromised its own more inclusive and open working methods (which represent the m ain source to the OLP’s - making democratic qualities) in order to gain more influence and power over the decision process. In contrast to the Council, the EP’s internal working methods in committee and e promise of ensuring inclusion, plenary sessions are organised in a manner that bear th openness and democratic deliberation among popularly elected representatives when 21 individual OLP dossiers undergo parliamentary treatment . However, due to the domination - of the informal working methods (i.e. the trialogues), the democratic inter institutional potential inherent in the EP’s own working methods becomes far less influential, especially when the Council’s own working method s have few democratic qualities. In the Council, the - opinion - formation process takes place in the lower echelons – in Coreper, working and will groups and the Secretariat rather than at open ministerial meetings. Hence, t he informal – - institutional working methods are more similar to the Council’s in that the decision inter - making process tak es place more or less entirely under the public radar in publicly inaccessible meetings among a number of unelected civil servants and experts. Whereas most commentators seem to agree that these working methods are worrying from a democratic perspective, the strange thing, however and as mentioned above , is that there seems more or less to be (a tacit) agreement that this is first and foremost a problem for the EP. Hardly anything is said about the Council’s lack of meeting the standard of a democratic gislator. Now, the reason for this may be that discontent and critique have only been focused le upon inside the EP which has resulted in guidelines which later has been upgraded to a Code of Conduct on how to behave before and after trialogues. In addition, the Constitutional Affairs Committee is currently reviewing the EP’s rules of procedure in order to ensure that early agreements are conducted more effectiv ely, transparent and inclusive. With regard to t he lack of attention to the Council’s democratic dut ies, we could, however, ‘hypothesise’ whether this stems perhaps from a normative blind spot related to or caused by the conceptualisation of the Council as primarily an intergovernmental body. This refers to the executives in the C composition of national ouncil and how this seems to affect the ministers’ perception of what kind of setting the Council is. In general, when national executives gather in settings beyond the nation - state, they usually participate in (purely) intergovernmental 21 I say ‘bear the promise of..’ as it cannot be concluded a priori that the standard procedures in the EP are followed in every single case, but the way the internal rules and processes are organised enhance the potential for compliance with democratic criteria such as inclusion, openness, public justification etc. (see also Stie, 2013). Actual compliance with the rules in every single dossier is, of course, an empirical question. 21

22 organisations repr esenting their respective states. Conventional intergovernmental – some are single - issue organisations organisations are limited in reach or depth of integration such as NATO regarding security and defence whereas others such as the UN – have a more – comp rehensive set of issues in which the members cooperate. What is more, traditional intergovernmental organisations are, comparatively speaking, usually not agenda setters or - the power centres in and around which new policy ideas, initiatives and proposals a re born or gravitate. It is still the national capitals that remain the strong and important policy - making centres. In this respect and in the population of political organisations beyond the state level, the EU represents a particular kind due to the scop e and scale of its activities, the level of commitment and the depth to which the member states are integrated with one another through a self - standing common legal system with supranational institutions operating on a anency that is not matched by any other political daily basis and with a reach and perm in organisation that are not states. Consequently, when national executives act as legislators the Council during OLP processes this is not like any other intergovernmental setting where member state meet a nd agree on common rules as unlike conventional intergovernmental organisations where the member states have not acceded legislative powers to the supranational level, decisions reached under the OLP are directly binding on Union citizens. U, this raises the normative requirements of citizens’ involvement and Hence, for the E possibilities to hold those who make decisions to account. The normative blind spot here consequently refers to what seems to be a conflation or equation of what is traditionally und erstood as an intergovernmental working method and what kind of democratic expectations an indirectly elected representational link demands. An intergovernmental working method is diplomatic in character, that is, policy - making is conducted in insulated se ttings and not necessarily by popularly elected representatives in open settings. Indirect representation, on the other hand, does not mean a lowering of democratic expectations as a diplomatic working method would imply. In the Council it rather means tha t democratic accountability and control must be exercised within the individual or national constituencies. In other words, the various constituencies can only hold their representatives to account, not the entire decision - making body within which the repr esentatives exercise their policy - making rights and duties. 22

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