The defence of the democratic deficit which has been most frequently argued is the one set forth in the 1993 verdict (BVerfGE, 17, 155-213) of the German Constitutional Court. The question facing the Court was whether the Law of Accession to the Treaty on European Union - which the Bundestag had passed by a large majority in December 1992 - could be reconciled with the demands for democratic accountability enshrined in the German Basic Law. Not until the Court had answered that question in the affirmative could the Maastricht Treaty be ratified.
The German Constitutional Court argued as follows: the suprastatism established in the first pillar of the Union Treaty is provisional. Sovereignties are delegated rather than surrendered. Such a delegation of sovereignties is acceptable, according to the Court, as long as the criteria of the Basic Law are upheld. According to these criteria, the common use of competences in common must be marginal in relation to the functioning of German democracy as a whole, and the uses to which these competences are put at the European level must be predictable. The delegation of German sovereignty must also be revocable; that is, the German authorities must retain the prerogative to re-assume the powers delegated if the criteria of marginality and predictability are not met. The German Constitutional Court deemed these three criteria to have been met, and so concluded that the ratification of the Treaty was consistent with the demands for democratic accountability laid down in the Basic Law.
A relevant critical observation, it appears to me, is that the provisional character of suprastatism has never been demonstrated in practice. Besides its lack of realism, moreover, the argument presented by the Court is inconsistent. For the Court defends the democratic deficit in terms of marginality, predictability and revocability, leading one to expect the Court would be disinclined to view the EMU as democratically acceptable. Yet the converse actually obtains. In adducing the position of the constitutionally independent and guarded Bundesbank, the Court makes a European virtue out of a German exception from the general rule of popular sovereignty and democratic accountability.
Notwithstanding its vulnerability to such criticisms, however, the preservationist position, as argued by the German Constitutional Court, is in fact widely embraced. It can be examined in one of its most elaborated versions in the work of Fritz W. Scharpf. He calls for an overall European arrangement which is compatible both with the demands for autonomy put by the member states and with the advantages associated with collective action arising from the principle of provisional suprastatism (Scharpf 1994: 131 ff). As a reformist and piecemeal constitutional engineer, Scharpf argues that we should attempt to achieve as much democracy as possible. If our purpose is to defend the principle of democratic governance in Europe, as the 21st century approaches, we must proceed on the basis of a realistic picture of the political options facing us in view of the completed internal market.
The implication of Scharpf's general idea becomes clear in the light of Bela Balassa's staircase metaphor of political integration. The member state of the EU have now reached the fourth step of the stair-case, i.e. the completed common market. In the 21st century, Scharpf argues, the European system of governance should be based on a recognition of the difference between negative and positive integration as regards the fulfilment of this fourth step. Negative integration is the abolition of barriers for the free movement of capital, goods, services and labour. Positive integration is the building up of welfare state arrangements - of the "in-kind" as well as the "in-cash" type - to compensate for the effects of negative integration.
Regulatory (and negative) policies do not require the same degree of democratic accountability and legitimacy as the redistributive (and positive) policies, Scharpf argues. Hence the established asymmetry is double. It is not only an asymmetric relation between the location of power and and the location of responsibility. There is also a parallel asymmetry as to the content of public policies. De-regulation can be forced through by suprastatal means. Positive measures, in contrast, can only be achieved through singular but co-ordinated decisions by 15 member states according to their respective constitutions and political structures.
Figure 2. Bela Balassa's stair-case metaphor of political integration
|Free trade area|
|Each country by itself|
This means - translated to the context of the Maastricht Treaty - that the move from common market to monetary (and thereby probably by implication to fiscal) union is historically critical. If we insist upon going further up the stair-case, we risk the introducation of fiscal federalism without a corresponding growth in the powers of the European Parliament. That would mean a far worse constitutional predicament than provisional suprastatism at the present level of mainly de-regulatory policies and double asymmetry in non-fiscal matters (Scharpf 1995: 581ff; Scharpf 1996 a: 109 ff: Scharpf 1996 b: 15 ff).
The notion of provisional suprastatism is based on a rejection of two imagined scenarios of a contrary character. That is the thrust of the Scharpfian argument. Neither a system of sovereign nation-states nor a completed federation is to be considered a "historically natural" condition. The choice as to which arrangment is the more suitable should be made, rather, in the same way as the conflict between public and private ownership of the means of production is adjudged in the Social Democratic tradition, i.e., on a pragmatic and piecemeal basis.
The overriding purpose, from a modern (as distinct from a pre-modern or post-modern) standpoint, is to preserve the capacity for consciously accomplished and evaluated political change. Such a capacity presumes an argumentation about open alternatives which is based on reason. No course of development is inevitable. Neither the Westphalian system of nation-states nor a United States of Europe represent the end of history. The democratic deficit is thus defended on the basis of the claim that the established suprastatism in Europe is provisional - and thus within the reach of democratic accountability still.
Those arguing for the provisional character of European suprastatism consider themselves limited in their thinking by two important restrictions: representative government and democratic accountability. Both of these principles should be maintained, in the view of the German Constitutional Court. The desire for a partially suprastatal order may not be fulfilled at the expense of the member states as political entities with their own identity and capacity for action. Similarly, national electorates must continue to be able to hold their leaders accountable. Rather than give up these two restrictions, champions of provisional suprastatism abandon the principle that the citizens of the member states should not delegate their right of decision.
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