‘The European Union Belongs to its Citizens: Three Immodest

Proposals’ (1997) 22 EL REV 150–561

JHH Weiler, Manley Hudson Professor of Law and Jean Monnet Chair,
Harvard University; Co-Director, Academy of European Law, European
University Institute, Florence

[1] ‘Despite its rhetorical commitment to a Union…which belongs to its citizens’, the
recent Irish Presidency IGC draft has precious little in the way of empowering individual
citizens of the Union. This essay presents three suggestions from a broader study presented to
the European Parliament which are designed to increase the democratic and deliberative
processes of Community and Union governance. The first, the European Legislative Ballot,
proposes a form of limited ‘direct democracy’ appropriate for the Union. The second, the
‘Lexcalibur initiative’, proposes placing Community and Union decision making on the Internet
to enhance accessibility and transparency of Community decision making. The last proposes
the creation of a Constitutional Council, modelled on its French namesake, to adjudicate, ex
ante, challenges to the legislative competencies of the Community legislator.

Introduction
[2] Cast your mind back to the heady days of the Maastricht Treaty. The Mandarins
heralded a remarkable diplomatic achievement: a new Treaty, new name, new pillars and
above all a commitment to Economic and Monetary Union within the decade. Recall now the
reaction in the European street ranging from fear and hostility through confusion and
incomprehension to indifference and outright apathy. The Danes voted against that Treaty, the
French approved it by a margin of barely 1% and most commentators agree that had it been
put to public scrutiny in, say, Great Britain or even Germany the outcome would have been far
from certain. Even those who supported it were motivated in large part by a ‘what’s-in-it-for-me’
calculus—a shaky foundation for long term civic loyalty.
[3] The reaction in the street did not relate only or even primarily to the content of the
Treaty; it was the expression of a growing disillusionment with the European construct as a
whole the moral and political legitimacy of which were in decline. The reasons for this are
many but clearly, on any reading, as the Community has grown in size, in scope, in reach and
despite a high rhetoric including the very creation of ‘European Citizenship’, there has been a
distinct disempowerment of the individual European citizen, the specific gravity of whom
continues to decline as the Union grows.
[4] The roots of disempowerment are many but three stand out.
First, is the classic so called ‘Democracy Deficit’: the inability of the Community
and Union to develop structures and processes which would adequately replicate
at the Community level the habits of governmental control, parliamentary
accountability and administrative responsibility which are practised with different
modalities in the various Member States. Further, as more and more functions
move to Brussels, the democratic balances within the Member States have been
disrupted by a strengthening of the ministerial and executive branches of
government. The value of each individual in the political process has inevitably
 declined including the ability to play a meaningful civic role in European
governance.
[5] The second root goes even deeper and concerns the ever increasing remoteness,
opaqueness, and inaccessibility of European governance. An apocryphal statement
usually attributed to Jacques Delors predicts that by the end of the decade 80% of
social regulation will be issued from Brussels. We are on target. The drama lies in the
fact that no accountable public authority has a handle on these regulatory processes.
Not the European Parliament not the Commission, not even the governments. The
press and other media, a vital estate in our democracies are equally hampered.
Consider that it is even impossible to get from any of the Community Institutions an
authoritative and mutually agreed statement of the mere number of committees which
inhabit that world of comitology. Once there were those who worried about the
supranational features of European integration. It is time to worry about
infranationalism—a complex network of middle level national administrators,
Community administrators and an array of private bodies with unequal and unfair
access to a process with huge social and economic consequences to everyday life—in
matters of public safety, health, and all other dimensions of socio-economic regulation.
Transparency and access to documents are often invoked as a possible remedy to this
issue. But if you do not know what is going on, which documents will you ask to see?
Neither strengthening the European Parliament nor national parliaments will do much
to address this problem of post-modern governance which itself is but one
manifestation of a general sense of political alienation in most western democracies.
[6] The final issue relates to the competencies of the Union and Community. In one of its
most celebrated cases in the early 1960s, the European Court of Justice described the
Community as a ‘…new legal order for the benefit of which the States have limited their
sovereign rights, albeit in limited fields’ (Van Gend en Loos Case 26/62 [1963] ECR 1).
There is a widespread anxiety that these fields are Limited no more. Indeed, not long
ago a prominent European scholar and judge wrote that there simply is no nucleus of
sovereignty that the Member States can invoke, as such, against the Community’.
(Lenaerts, ‘Constitutionalism and the many faces of Federalism’ (1990) 38 AJ Com L
205, 220. The Court, too, has modified its rhetoric; in its more recent Opinion 1/91 it
refers to the Member States as having limited their sovereign rights ‘…in ever wider
fields’: Opinion 1/91 [1991] ECR 1–6079, para 21.)
[7] We should not, thus, be surprised by a continuing sense of alienation from the Union
and its Institutions.
[8] In the Dublin Summit the present thinking of the IGC has been revealed in a document
entitled The European Union Today and Tomorrow’. The opening phrase of the
document reads: ‘The European Union belongs to its Citizens’. But don’t hold your
breath when it comes to the actual proposals. They are very modest. The second
phrase of the new text reads: ‘The Treaties establishing the Union should address their
most direct concerns.’ There is much rhetoric on a commitment to employment, there
are a few significant proposals on free movement, elimination of gender discrimination
and other rights. There are some meaningful proposals to increase the powers of the
European Parliament and even to integrate formally, even if in limited fashion, national
legislatures into the Community process. But overall, the net gainers are, again, the
governments. At best, this is the ethos of benign paternalism. At worst, the proposals
represent another symptom of the degradation of civic culture whereby the citizen is
conceived as a consumer— a consumer who has lost faith in the Brand Name called
Europe and who has to be bought off by all kind of social and economic goodies, a
 share holder who must be placated by a larger dividend. It is End-of-Millennium Bread
and Circus governance.
[9] What can be done? Here is a package of three proposals plucked from a recent study
commissioned by the European Parliament which my collaborators and I believe can
make a concrete and symbolic difference. (JHH Weiler, Alexander Ballmann, Ulrich
Haltern, Herwig Hofmann, Franz Mayer, Sieglinde Schreiner-Linford, Certain
Rectangular Problems of European Integration, European Parliament, 1996.) We also
believe that they could be adopted without much political fuss. You decide.

Proposal 1: the European legislative ballot

[10] The democratic tradition in most Member States is one of representative democracy.
Our elected representatives legislate and govern in our name. If we are unsatisfied we
can replace them at election time. Recourse to forms of direct democracy—such as
referenda—are exceptional. Given the size of the Union, referenda are considered
particularly inappropriate.
However, the basic condition of representative democracy is, indeed, that at election
time the citizens ‘…can throw the scoundrels out’—that is replace the Government.
This basic feature of representative democracy does not exist in the Community and
Union. The form of European governance is— and will remain for considerable time—
such that there is no ‘Government’ to throw out. Even dismissing the Commission by
Parliament (or approving the appointment of the Commission President) is not the
equivalent of throwing the Government out. There is no civic act of the European
citizen where he or she can influence directly the outcome of any policy choice facing
the Community and Union as citizens can when choosing between parties which offer
sharply distinct programmes. Neither elections to the European Parliament nor
elections to national Parliaments fulfil this function in Europe. This is among the
reasons why turnout to European Parliamentary elections has been traditionally low
and why these elections are most commonly seen as a mid-term judgment of the
Member State Governments rather than a choice on European governance.
[11] The proposal is to introduce some form of direct democracy at least until such time as
one could speak of meaningful representative democracy at the European level. Our
proposal is for a form of a Legislative Ballot Initiative coinciding with elections to the
European Parliament Our proposal is allow the possibility, when enough signatures are
collected in, say, more than five Member States to introduce legislative initiatives to be
voted on by citizens when European elections take place (and, after a period of
experimentation possibly at other intervals too). In addition to voting for their MEPs, the
electorate will be able to vote on these legislative initiatives. Results would be binding
on the Community institutions and on Member States. Initiatives would be, naturally,
confined to the sphere of application of Community law—that is, in areas where the
Community Institutions could have legislated themselves. Such legislation could be
overturned by a similar procedure or by a particularly onerous legislative Community
process. The Commission, Council, Parliament or a national parliament could refer a
proposed initiative to the European Court of Justice to determine—in an expedited
procedure—whether the proposed ballot initiative is within the competencies of the
Community or is in any other way contrary to the Treaty. In areas where the Treaty
provides for majority voting the Ballot initiative will be considered as adopted when it
wins a majority of votes in the Union as a whole as well as within a majority of Member
States. (Other formulae could be explored.) Where the Treaty provides for unanimity a
majority of voters in the Union would be required as well as winning in all Member
 States.
[12] Apart from enhancing symbolically and tangibly the voice of individuals qua citizens,
this proposal would encourage the formation of true European parties as well as
transnational mobilisation of political forces. It would give a much higher European
political significance to Elections to the European Parliament. It would represent a first
important step, practical and symbolic, to the notion of European citizenship and civic
responsibility.

Proposal 2: Lexcalibur—the European public square

[13] This would be the single most important and far reaching proposal which would have
the most dramatic impact on European governance. It does not require a Treaty
amendment and can be adopted by an Inter-Institutional Agreement among
Commission, Council and Parliament. It could be put in place in phases after a short
period of study and experimentation and be fully operational within, we estimate, two to
three years. We believe that if adopted and implemented it will, in the medium and long
term, have a greater impact on the democratisation and transparency of European
governance than any other single proposal currently under consideration by the IGC.
[14] Even if it does not require a Treaty amendment we recommend that it be part of the
eventual IGC package as a central feature of those aspects designed to empower the
individual citizen.
[15] We are proposing that—with few exceptions—the entire decision-making process of
the Community, especially but not only Comitology—be placed on the internet.
[16] For convenience we have baptised the proposal: Lexcalibur—the European public
square.
[17] We should immediately emphasise that what we have in mind is a lot more than simply
making certain laws or documents such as the Official Journal more accessible through
electronic data bases.
[18] We should equally emphasise that this proposal is without prejudice to the question of
confidentiality of process and secrecy of documents. As shall transpire, under our
proposal documents or deliberations which are considered too sensitive to be made
public at any given time could be shielded behind ‘fire-walls’ and made inaccessible to
the general public. Whatever policy of access to documentation is adopted could be
implemented on Lexcalibur.
[19] The key organisational principle would be that each Community decision making
project intended to result in the eventual adoption of a Community norm would have a
‘decisional web site’ on the Internet within the general Lexcalibur ‘Home Page’ which
would identify the scope and purpose of the legislative or regulatory measure(s); the
Community and Member States persons or administrative departments or divisions
responsible for the process; the proposed and actual timetable of the decisional
process so that one would know at any given moment the progress of the process,
access and view all non-confidential documents which are part of the process and
under carefully designed procedures directly submit input into the specific decisional
process. But it is important to emphasise that our vision is not one of ‘Virtual
Government’ which will henceforth proceed electronically. The primary locus and mode
of governance would and should remain intact: Political Institutions, meetings of
elected representative and officials, Parliamentary debates, media reporting—as
vigorous and active a public square as it is possible to maintain, and a European Civic
 Society of real human beings. The huge potential importance of Lexcalibur would be in
its secondary effect: It would enhance the potential of all actors to play a much more
informed, critical and involved role in the Primary Public Square. The most immediate
direct beneficiaries of Euro governance on the Internet would in fact be the media,
interested pressure groups, NGOs and the like. Of course, also ‘ordinary citizens’
would have a much more direct mode to interact with their process of government.
Providing a greatly improved system of information would, however, only be a first step
of a larger project. It would serve as the basis for a system that allows widespread
participation in policy-making processes so that European democracy becomes an
altogether more deliberative process through the posting of comments and the opening
of a dialogue between the Community Institutions and interested private actors. The
Commission already now sometimes invites email comments on its initiatives. (See, for
example, its draft notice on cooperation with national authorities in handling cases
falling within Arts 85 or 86 [1996] OJ C262/5.) Such a system obviously needs a clear
structure in order to allow a meaningful and effective processing of incoming
information for Community Institutions. Conceivable would be, for example, a two-tier
system, consisting of a forum with limited access for an interactive exchange between
Community Institutions and certain private actors and an open forum where all
interested actors can participate and discuss Community policies with each other. This
would open the unique opportunity for deliberations of citizens and interest groups
beyond the traditional frontiers of the Nation State, without the burden of high entry
costs for the individual actor.
[20] Hugely important, in our view, will be the medium and long term impact on the young
generation, our children. For this generation, the internet will be—in many cases
already is—as natural a medium as to older generations were radio, television and the
press. European Governance on the net will enable them to experience government at
school and at home in ways which are barely imaginable to an older generation for
whom this New Age ‘stuff’ is often threatening or, in itself, alien.
[21] The idea of using the internet for improving the legitimacy of the European Union may
seem to some revolutionary and in some respects it is. Therefore its introduction
should be organic through a piecemeal process of experiment and re-evaluation but
within an overall commitment towards more open and accessible government.
[22] There are dimensions of the new Information Age which have all the scary aspects of a
‘Brave New World’ in which individual and group autonomy and privacy are lost, in
which humanity is replaced by ‘machinaty’ and in which Government seems ever more
remote and beyond comprehension [and grasp the perfect setting for alienation
captured most visibly by atomised individuals sitting in front of their screens and
‘surfing the net’.
[23] Ours is a vision which tries to enhance human sovereignty, demystify technology and
place it firmly as servant and not master. The internet in our vision is to serve as the
true starting point for the emergence of a functioning deliberative political community, in
other words a European polity cum civic society.
[24] For those who wish to see what this might look like we have prepared a simulation of
Lexcalibur: www.iue.it/AEL/EP/Lex/index.html.

Proposal 3: limits to growth

[25] The problem of competencies is, in our view, mostly one of perception. The perception
has set in that the boundaries which were meant to circumscribe the areas in which the
 Community could operate have been irretrievably breached. Few perceptions have
been more detrimental to the legitimacy of the Community in the eyes of its citizens.
And not only its citizens. Governments and even courts, for example the German
Constitutional Court, have rebelled against the Community constitutional order
because, in part, of a profound dissatisfaction on this very issue. One can not afford to
sweep this issue under the carpet. The crisis is already there. The main problem, then,
is not one of moving the boundary lines but of restoring faith in the inviolability of the
existing boundaries between Community and Member State competencies.
[26] Any proposal which envisages the creation of a new Institution is doomed in the eyes
of some. And yet we propose the creation of a Constitutional Council for the
Community, modelled in some ways on its French namesake. The Constitutional
Council would have jurisdiction only over issues of competencies (including
subsidiarity) and would, like its French cousin, decide cases submitted to it after a law
was adopted but before coming into force. It could be seized by the Commission, the
Council, any Member State or by the European Parliament acting on a majority of its
members. We think that serious consideration should be given to allowing Member
State Parliaments to bring cases before the Constitutional Council.
[27] The composition of the Council is the key to its legitimacy. Its President would be
the President of the European Court of Justice and its members would be sitting members
of the constitutional courts or their equivalents in the Member States. Within the European
Constitutional Council no single Member State would have a veto power. All its decisions
would be by majority.
[28] The composition of the European Constitutional Council would, we believe, help
restore confidence in the ability to have effective policing of the boundaries as well as
underscore that the question of competencies is fundamentally also one of national
constitutional norms but still subject to a binding and uniform solution by a Union
Institution.
[29] We know that this proposal might be taken as an assault on the integrity of the
European Court of Justice. That attitude would, in our view, be mistaken. The question of
competencies has become so politicised that the European Court of Justice should
welcome having this hot potato removed from its plate by an ex ante decision of that other
body with a jurisdiction limited to that preliminary issue. Yes, there is potential for conflict
of jurisprudence and all the rest—nothing that competent drafting cannot deal with.
[30] The IGC has proclaimed that the European Union belongs to its citizens. The
proof of the pudding will be in the eating.
1 Every effort has been made to trace and contact copyright holders prior to publication. If notified, the publisher will
undertake to rectify any errors or omissions at the earliest opportunity.