Jean Monnet Center at NYU School of Law

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What, then, are the reasons Mancini himself gives for favouring statehood. It is at the very end of his essay that he actually makes `The Case' for statehood.

The first reason is, it seems, functionalist. Mancini notes some of the negative social and economic effects of globalisation. Those effects

`...tend to undermine the loyalty of large segments of the population' and are instrumental in `... the revival of extreme right-wing populism, the rampant egotism of most interest groups and the burgeoning of identity politics and xenophobia on the ruins of the old ideologies.... Forced with their backs to the wall by a world economy which they cannot control, some of our nation states are at a loss to manage, without resorting to coercion.' (§V) `A European state, [he continues] by contrast, were it only because of the broader vision and the single-mindedness which it could bring to the exercise of Europe's vast economic power, would probably be able to influence the global market. Our social contract would still have to be restyled, but its core values might thus be salvaged with the possible result of toning down the loyalty crises which seem to have arisen by virtue of their impairment.' (§V)

These propositions are far from self-evident. Does Europe really need to be a State to be able to speak with one voice and bring to bear its vast economic power on the global market? Is it because of its lack of statehood that it has not done this so far? (The Court certainly did not help with its Opinion on the Community and the WTO.[81]) Is it really the case that large States act with single-mindedness on these matters and in these fora? Are there no advantages in Europe often having a fifteen + one presence in international economic fora much to the chagrin of its interlocutors? And if Europe did develop a `single mind' to enable it to act with `single-mindedness' on the global market, could we really be sure that the position adopted would be that of defending the social rights of individuals and that whatever that single-minded position were, it would, even if successful, tone down the loyalty crisis which some of the Member States now face? Can a case not be made that whatever alleged weakness results from lack of European statehood has to be balanced against the attractiveness of a polity which, after all, has in place mechanisms which allow its partners, when they are so minded, to act with impressive unity and force on the global market whilst allowing, on other occasions a great degree of multiple-mindedness both internal and external?

We do not have to give answers to these questions since Mancini himself, though characterising this argument, `based on the social rights of the European citizens' as `forceful,'[82] cedes that ` is not the most cogent one which can be advanced in support of statehood for Europe.' I actually think that it is a lot more cogent than he suggests and certainly more cogent than the argument that he prefers. Unquestionably a European State would in many respects be more powerful than the current Union. But I also understand why Mancini does not push this argument too much. It has little, if anything, to do with democracy and everything to do with power.

His real argument relates to something even more precious to him than social rights: The political rights of European citizens, or `in one word, democracy.' `The Case' for statehood rests thus, principally, on its importance for ensuring a democratic Europe.

The description of the democratic malaise of Europe is, inevitably, truncated and partial. Still, it is important to see what elements of the various complex analyses of the many democratic deficiencies of Europe Mancini elects to highlight.

Mancini first[83] provides some of the empirical data to show the extent to which European law, regulations, directives and all the rest, constitutes a large portion of the overall `norm creation' within the Member States. His data and examples are from both normal `supranational' Community legislation which passes the scrutiny (effective or otherwise) of the European Parliament and that which issues from the netherworld of Comitology--which I have presumed to call infranationalism. Though we could quibble about the coupling of the two phenomena (in my view, they both raise different problems of democracy and call for different solutions), it is still a plausible starting point, even if rather truncated, for describing the very real democratic deficiencies of Community and Union governance.

Mancini then argues with force, and I cite his important footnotes, too, that whilst

` is true that the members of the body (the Council of Ministers) which enacts those directives and the more important regulations possess a proper legitimacy, having been elected to their national Parliaments or deriving their mandate from them; but as everyone knows, they often confine themselves to rubber-stamping... behind closed doors, drafts prepared by an ambassadorial college (COREPER) and, at a lower level, by numberless,[[84]] faceless and unaccountable committees of senior national experts.'[[85]] (§V)

This is all good stuff from the rich literature on the democratic deficiencies of the Community.

Mancini's brief statement of the democratic ideal is summed up by him as `... a heritage of values and institutions shared by its Member States in all of which the representatives of the people control the action of the executive branch.' Even with this telegraphic formulation we should not quibble, remembering, of course, that there is a lot more to democracy than control of the executive branch.

And there is more to come:

[T]he application of such rules and practices also threatens to reinforce the governments' predominance over domestic parliaments and therefore to infect the constitutions of the Member States, that is the very democracy presupposed by the Union. (Id. emphasis in original)

And finally:

This very serious danger is even regarded with growing anxiety by the many who wish the Union to remain what it is. The remedies which they offer, however, are either ineffectual or disruptive. Thus, a tighter control exercised by the national parliaments on the legislative process in Brussels by means of rigid guidelines imposed on the respective governments would restrict the bargaining power of the latter, consigning them, whenever decisions are taken by a majority vote, to a splendid but sterile isolation. As for nation-wide referenda, the Danish experience in 1992-1993 has shown that, if their outcome is negative, they may have such ruinous consequences as to force the Union and the State concerned to sidestep the popular will by working out some fudged compromise. Finally, the testing by Member State courts of Community provisions against the values enshrined in their constitutions runs the risk of undermining the major advances made during the integration process: namely, supremacy of European law and its corollaries, undistorted competition and equal treatment for all Union citizens. (Id. Footnotes omitted)

One could argue, and I would, that in relation to some of the decisional processes of the Union, a control by a national parliament over the representatives of its executive branch in Brussels--allowing a minister, for example, a margin of negotiation but drawing some red lines beyond which he or she may not go--can be an effective tool in the menu of democratic controls. One could further argue, that there are many other mechanisms at the Member State level which could enhance the democratic fabric of the Union. Unlike Mancini, I would argue that the Danish referendum was a watershed in the battle for democracy in the Union, a well aimed `shot over the bows' which changed the process of Intergovernmental Conferences forever--and for the better (unless the only acceptable version of democracy is the non-disruptive type).

But, all in all, who can disagree that the present mechanisms and institutions do not guarantee the kind of democracy many would like to see in the European Union and that there is vast room for improvements?

It is what follows--or rather what does not follow--that I find puzzling in `The Case' for statehood. For, in the light of the arguments above, which I have tried to quote in extensu, Mancini goes on to reason that

[I]ndeed, the Union is doomed never to be truly democratic as long as not only its foreign and security policies, which are openly carried out on an intergovernmental basis, but the very management of its supranational core, the single market, are entrusted, with or without a circumscribed control by the European Parliament, to diplomatic round tables. In other words, democracy will elude Europe as long as its form of government includes rules and legitimises practices moulded on those of the international community. (§VI)

And further along:

The truth is therefore that the problem of democracy cannot be tackled at national level. It must be confronted where it was engendered, in the very fabric of the Union, and it may only be solved by ridding the Union of the last--but still how powerful!--vestige of its original constitution: the essentially international nature grafted onto its policy-making machinery. (Id.)

That, I think, is it.

I confess to a great difficulty in dealing with what would appear to be the most important and potentially original point in Mancini's essay. And though it is incumbent on us to accept Mancini's plea to be excused for proceedings ` means of little more than inklings and headlines' one can regret that he dedicated such a small part of his essay to dwell on what is, after all, the heart of his argument.

With the deepest respect for this noble judge, professor and friend, I find his argument on the nexus between statehood and democracy a non sequitur, presuming that which needs to be proven and begging the question rather than giving an answer. If the proclaimed raison d'être of `The Case' for statehood are these problems of democracy which Mancini raises, the case against `The Case' for statehood is that ultimately, apart from some trenchant assertions, no `case' for statehood is actually made.

The specific problems of democratic governance mentioned in the piece are real enough. But as far as I can follow his reasoning, it is never explained how and why statehood would solve them and why they could not be solved without a State.

Take the very serious problem which in Mancini's narrative is `headlined' as decision- making by `numberless, faceless and unaccountable committees of senior [or not so senior!] national experts.'[86] The essence of the problem here is not, the diplomatic or `international' nature of Community meso-level policy making and norm setting. Without changing a single word, this very sentence could serve as an apt description of one of the most serious problems of democracy within the modern, advanced State: a large amount of public policy and norms being set by `numberless, faceless and unaccountable committees of senior national experts.' It is as true for a France or a UK as it is true for the European Community. The problem of ensuring democracy in the Administrative and Regulatory State without compromising the quality and efficiency of public administration has taxed statecraft and political science for long, and no easy solutions have been found.[87] Part of the problem is one of administrative openness to public and media scrutiny which, in turn, is rooted in the ethos of secrecy which pervades public administration and legal rules about access and transparency; part of it has to do with the extent to which an open and real dialogue with those affected by proposed regulation is feasible and permissible; part of it relates to the mechanisms by which regulatory agencies are made to account to elected parliaments; part of it is the extent to which courts are willing to review both the process and substance of administrative decision-making with a `democratic sensibility.' And there is more. The Member States of the European Union are all over the map in dealing with these problems.

One can, thus, imagine a European State which would adopt in these matters the worst from its Member States, and the administrative processes of which would continue to be besotted by numberless and faceless committees of senior national (in Mancini's European State, the nations would, after all, remain...) and European experts. Think of a European State administration which borrowed from the elitism of the French higher Civil Service, combined it with the traditionally entrenched secrecy of their British counterparts and topped it with the rigidity of the German Beamte and reach quickly for your bottle of aspirin. Of course, a European State administration could go to the best traditions but, by the same token, what is to stop the present European Community to lead the way in a major administrative overhaul - which would render its meso-and micro-level decision-making a lot more open and transparent, which would adopt the best of the `note and comment' practices some States have in place, which would have a progressive freedom of information constitutional guarantee and which would make administrators subject to effective parliamentary scrutiny, including, if it were judged appropriate, powers of subpoena and contempt of parliament. Furthermore, simply because the process is transnational and diplomatic does not necessarily render it Treyf from a democratic perspective. Indeed, it is conceivable that in Comitology the transnational dimension has provided an incentive for a process more deliberative than in the national context.[88]

And what, pray, is to stop the European Court, hitherto lacklustre in its jurisprudence on administrative accountability, from leading the way in insisting on minimal standards of democratic accountability as a condition for approving Community legislation?

Of course, there is a lot to stop this overhaul from happening--a combination of inertia, various vested interests and genuine disagreement on the appropriate balance between transparency and the needs of governance in a complex society. It may be another of my inabilities, but I neither see why and how statehood is an essential variable in solving this problem nor do I find in Mancini's article anything to help me in this respect other than a bald statement that statehood would make the difference. Mancini advocates realism. I would estimate that the chances of having a European State are slightly less infinitesimal than having truly open government. But I would further guess that the chances of having open government in a European State are at vanishing point.

And the same, I think, is true for the other aspects of democracy Mancini has chosen to focus on concerning executive accountability. It is, of course, true `as everyone knows' that the Council often confines itself to rubber-stamping behind closed doors drafts prepared by an ambassadorial college. (And it is not always a bad thing if we think of how we, the people, want our ministers to spend their time.) But, be that as it may, governments and national parliaments do the same; except that their drafts are not prepared by an ambassadorial college but by national mandarins which, as I have argued, may be more or less transparent and accountable than their current European counterparts. And in a European State, of whatever nature, the government of that State will also often confine itself to rubber-stamping drafts prepared by its administration. And the more minimalist this State is--Mancini expresses a preference for a minimalist State, whatever that means--the more likely it is that its administration will resemble COREPER. The extent of the rubber-stamping and the need for closed doors are, again, factors which in my view do not depend on the statehood or otherwise of the polity. You could have a European State which decided behind a vault, and a European Community--if the will exists--which would lead the way in deliberative democracy and transparency. Read the excellent Curtin, if you want chapter and verse.[89]

When Mancini argues that the very management of the Community's supranational core, the single market, is entrusted, without or with a circumscribed control by the European Parliament, to diplomatic round tables we might politely demur. Intergovernmentalism and diplomacy have an important part in certain, `Newtonian' aspects of European governance like IGCs - big objects moving at low speeds. But I would respectfully suggest that to characterise the governance of the Single Market at both policy setting (framework Directives et cetera) and management levels simply as a `diplomatic round table' is, I believe, a gross misunderstanding of the complex decisional processes of Single Market governance,[90] which results in missing some of the real problems of democracy in the Union. But even if Mancini were right - why is the alleged diplomatic nature of the process the principal concern for democracy, as he sees it, and not, say, the weak or absent control by democratic institutions? In the very terms set out by Mancini, should not the answer to this question be an increase in the accountability of these diplomatic round tables, if that is what they are, to, say, the European Parliament? To the media? To other public bodies or fora? Or to make the powers of the EP less circumscribed? By contrast, let us imagine that we eliminated the diplomatic round table element out of Single Market management at Comitology level, and entrusted it to, say, the Commission; or let us imagine the same function now fulfilled by Comitology fell in the European State, as it must, to the statal administrative equivalent which, I fear, would not look all that different. Why would the problems of democracy be different? Is it simply because the administration of a State would be presumed to have more legitimacy than the administration of the Community? But would that not depend on the legitimacy of that would-be State and its administration? Is there no force in the argument that says that the legitimacy of the Community administration is enhanced by its rootedness in Member State administration? And even in a State, the legitimacy of which is never called into question (which is unlikely to be the case of a European State) could there not develop a deep méfiance towards the Administration such as we find in, say, Italy or, in a different fashion, in the United States?

The final point Mancini makes seems to concern executive branch empowerment. It is pointless to repeat my argument. Many models have been put forward which could significantly enhance European Union executive branch accountability without statehood and there is, by contrast, many a State, France for example, where the combined power of the Presidency and the Prime Minister comprising between them the executive branch, makes even the Union look democratic when it comes to executive accountability.

The reader will thank me for not setting out, again, my views of the democratic deficiencies of Europe. One thing I will say: when Mancini says that the problem of European democracy will not be tackled at the national level, he should have added the word--'alone.' Likewise, it will not be tackled at the European level alone. Elsewhere I have argued that only a rich menu of measures at both levels, including an empowered European citizen and a vibrant public square, will do the trick.[91]

Does this mean that there is no nexus between European statehood and democracy? No, it means, in the first place, that if there is such a nexus, it has not, in my view, been presented by Mancini. The most basic argument that could be made for such a nexus is the one he flinches away from. According to this argument (which I do not share) the legitimacy which the Union requires will not be provided by a demos based on the `mere' bonds of civic loyalty, because `mere' bonds are simply not strong enough. Only a State, some would argue, with its symbols, constructed myths, immense power to mobilise its citizens to fulfil their civic duties, such as military or other state services, through its `single-mindedness' and its traditional entitlement to claim loyalty will forge the bonds necessary to legitimate democratically the powers already claimed and exercised by today's Union. But if Mancini said that it would be he who emerged with the Cheshire Grin. And there are, I imagine, other arguments, too, which, however, would have to be balanced against ways in which democracy could suffer as a result of statehood, notably in the inevitably tendency towards aggregation of power in the federal state institutions.

[81]Opinion 1/91, [1991] ECR 6079.

[82]Mancini seems to rely, partially at least on, S. O'Leary, The Evolving Concept of Community Citizenship, (Kluwer 1996) whom he cites in n 53 for the proposition `...that to proceed, even at this stage of integration, without deepening the social legitimacy of the Community would be a grave error.' I agree on this point with O'Leary (cf. Weiler - Legitimacy and Democracy of European Governance in G. Edwards & A. Pijpers (eds.) The Politics of European Treaty Reform 1997) but I do not read her as suggesting that statehood is the necessary answer to the legitimacy crisis. In any event, the legitimacy of a European State could be, albeit in a different manner, every bit as problematic as the legitimacy of the European Union.

[83]Text to footnotes 54 et seq.

[84][This is the footnote from the Mancini piece] According to F. Hayes-Renshaw & H. Wallace, The Council of Ministers (MacMil1an 1997), at 97: `The exact dimensions of the base of the Council hierarchy is one of the EU's great unsolved mysteries. Hardly anyone knows how many working groups exist at any one time.'

[85][This is the footnote from the Mancini piece] Mancini and Keeling, `Democracy and the European Court of Justice' (1994) 57 MLR 175, at 190. According to Wessels, `The EC Council: the Community's Decisionmaking Center' in R.O. Keohane & S. Hoffmann (eds), The New European Community. Decisionmaking and Institutional Change, (Boulder 1991), 133, at 140: `[i]n a rough estimation, 80% of the Council's acts are decided on a professional bureaucratic basis. Some documents ... can even pass the Council without a political debate.' Hayes-Renshaw and Wallace estimate that `in practice [the] committees are the last actual arbiters in Council negotiations of roughly 70% of the legislative output,' op cit, n 21, at 15.

[86]Mancini would agree that European Community experts are almost always involved, too. That does not weaken the argument. They, too, are faceless and only minimally accountable.

[87]Cf, Majone, `Europe's `Democratic Deficit': The Question of Standards,' (1998) 4:1 ELJ.

[88]Indeed, a powerful case has been made (which I do not entirely share) in this Journal that the deliberative nature of Community Comitology is an example of democratic discourse which is absent in the national context. Joerges/Neyer, `From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology,' (1997) 3:3 ELJ 273.

[89]Curtin, D.M., Postnational Democracy. The European Union in Search of a Political Philosophy, op cit, n 9.

[90]Cf, K. Armstrong & S. Bulmer, The Governance of the Single European Market (Manchester University Press 1998).

[91]J.H.H Weiler, Alexander Ballmann, Ulrich Haltern, Herwig Hofmann, Franz Mayer , Sieglinde Schreiner-Linford, Certain Rectangular Problems of European Integration, (European Parliament 1996).

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