Domestic Solutions to the EU Legitimacy Crisis
In September 2012, the Eurobarometer found for the first time that more European citizens considered the EU to be undemocratic than democratic. Responses up to now have focused on how to reform the EU Institutions.
This paper takes a different approach. The European Union should only govern when it has democratic authority within a member state. To this end, the paper proposes five reforms which could be realised without EU Treaty change:
1. There should be a new test of relative democratic authority where the EU can only act if it enlarges choices or protects certain values in a way that cannot be done by domestic parliaments and where the benefits of this action exceed collective domestic democratic costs.
2. This test of relative democratic authority would be policed by national parliaments. An EU proposal would be abandoned unless two thirds of the national parliaments indicate their support.
3. A new test of democratic responsiveness would require that if one third of the national parliaments propose either that legislation be reviewed or that new legislation should be proposed, the Commission is obliged to make a proposal to this effect.
4. Individual national parliaments should also be able to pass laws disapplying EU law where an independent study shows that EU law imposes higher costs than benefits for that member state.
5. To protect certain domestic democratic values and traditions, citizens should have the right to petition a national Constitutional Court to disapply an EU law if the law violates those values or traditions. If an EU law is disapplied by a national parliament or Constitutional Council a majority of other parliaments, on the basis of an independent report, may petition the European Council to mediate, if the costs on other citizens are excessive or there is no violation of domestic democratic values or traditions.
Finally, the paper considers the options of exiting the EU or pursuing selective engagement – two proposals increasingly debated in the UK context. It concludes that much EU law will necessarily still be applied regardless of whether a state is within or outside the EU. Paradoxically, the constraints of EU law are such that a state may be less restricted by EU law when it is inside the EU, under the scenario above, than when it is outside the Union.
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