50344_FYRP

Candidate Number: 50344 Final Year Research Project
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UNIVERSITY OF BRISTOL
Law School
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Unit Code and Title: LAWD30091: Final Year Research Project
Coursework 1
Candidate Number: 50344
Date due for submission: 18th March 2015
Question number and (abbreviated) title:
5. Legitimacy in the European Union:
Demoicratic Legitimacy and the Ordinary Legislative Procedure
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Demoicratic Legitimacy and the Ordinary Legislative Procedure
Abstract:
This article offers an overview of the emerging concept of demoicracy, and uses it to
evaluate the legitimacy of the Ordinary Legislative Procedure. Demoicracy is defined
as a normative framework that sees legitimacy as being derived from the balance
between the rights of citizens and statespeoples. It is centred on the belief that the
European Union should give critical expression to its multiple ‘demoi’ constituents,
and has to be evaluated with regards to this. Such an evaluation is considered more
appropriate given the contemporary conditions of European Union policy-making,
and provides unique insights. It is found that whilst the Ordinary Legislative
Procedure is demoicratically legitimate in a general sense, it faces major issues with
regards to the representative qualities of its component institutions.

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Table of Contents
Introduction: 4
Chapter 1: Democratic Legitimacy and Realism: 6
Chapter 2: Demoicracy: 9
Chapter 3: Demoicracy and the Ordinary Legislative Procedure: 16
Conclusion: 26
Bibliography: 27

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Introduction
The European Union (hereafter EU) has long been criticised for suffering from a
‘democratic deficit’. At its most basic, this refers to the EU being ‘unresponsive to
democratic pressures’.1 Compared to a traditional nation-state, it is difficult to argue
against this proposition. However, it needs to be appreciated that the institutional
arrangement of the EU has been specifically designed to spread power between the
organisation itself and the Member States.2 This division of power has arisen out of
the constitutional conflict between supranationalism and intergovernmentalism.
Central to this debate is the issue of ‘demos’. This is a complex concept referring to
the complicated psychosocial factors that cause a feeling of ‘belonging’ to a specific
group of people. It is beyond the scope of this essay to explore this notion fully.
Instead, Cheneval and Schimmelfennig’s basic definition will be used: ‘a political
community that shares a purpose, and possesses the institutional infrastructure, of
self-government’. 3 The EU is considered too fragmented in terms of ‘collective
identity, public spheres and intermediary political structures’ for a demos to exist.4 An
important way that this abstraction can be seen to manifest itself is in the reluctance
of populations to forego their individual nation-states.
Demoicracy has since emerged as a novel approach to assessing the legitimacy of the
EU. It contends that in the absence of a European demos, there is a need to represent
1 Craig and de Búrca (2011: 150)
2 McCormick (1997)
3 Cheneval and Schimmelfennig (2013: 337)
4 ibid

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the separate demoi5 of the different European peoples in the transnational system of
governance. It aspires to treat demoi seriously, while simultaneously acknowledging
the limitations of purely intergovernmentalist conceptions. This essay will begin by
developing an appreciation for the limitations of democratic theory in practice.
Following this, demoicracy will be introduced as a concept and justification given for
its use. Finally, the theory will be used to evaluate the legitimacy of the Ordinary
Legislative Procedure (hereafter OLP).
5 Demoi is the plural of demos

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Chapter 1 – Democratic Legitimacy and Realism
In order to truly appreciate the legitimation potential of demoicracy, it is first
necessary to evaluate the rationale behind why democracy is considered such an
important feature of modern societies. This is a very contentious, wide-ranging
subject area, with the meaning of democracy itself being highly contested. In the
broadest possible terms, normative justification stems from ‘people’s recognition and
acceptance of the validity of the rules of their entire political system’. 6 Within
democratic theory, this has arisen through the belief that the system of governance
manifests the ‘collective self-determination’ of a society.7 Citizens, as voters, should
determine for themselves how they are governed.
In its purest form this would involve direct democracy, where people would vote on
policy decisions directly. However, this is generally accepted to be too impractical in
our complex, modern societies.8 There are far too many judgements made on a daily
basis for every person to realistically be able to vote on. Furthermore, the lack of
technical expertise of the average individual in policy-making makes this an
unattractive option. There is consequently a reliance on representatives. It can thus be
seen that, in order for our societies to function effectively, we necessarily accept
constraints on democracy. However, the more that there is a reliance on
representatives, the more abstract the concept of ‘collective self-determination’
becomes.
6 Aragón (2008: 1)
7 Scharpf (1999: 1)
8 Buchanan and Tullock (1962: 213)

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With this in mind, it is important to note that representative democracy has been
criticised as failing to truly deliver what voters want.9 Beyond the choice of governing
personnel, other resources determine the actual policies pursued and implemented.10
There is subsequently a reliance on methods of accountability in order to compel
public authorities to respond to the public interest.11 This can only work effectively if
institutions are transparent and citizens are sufficiently informed. With respect to this,
deliberative democratic theorists highlight the importance of engaging in rational
discussion on political issues. The belief is that democratic legitimacy requires
decisions to be substantiated with rational thought, and not merely the aggregation of
collective preferences. It is difficult to argue against this; the arbitrary exercise of
political power is normatively unappealing.12 Yet are all voters sufficiently engaged?
There is certainly a perception that people are generally apathetic towards politics.13
Despite all this, democracy is defended vehemently: with the grandiose rhetoric of
having ‘the ultimate sovereign power resting with the people’.14 However, what this
means practically is highly contested, and is, nonetheless, unavoidably limited in
many different ways. In its idealist form, it is about giving a populace collective self-
determination with respect to how they are governed. In reality, we are forced to rely
on factors like accountability in order to achieve this in any meaningful sense. The
purpose of this chapter has been to introduce the reader to a brief realist perspective
on this incredibly multifaceted debate. Democracy should not be thought of as an
absolute ideal that is never compromised. This will help one to understand the
9 Benvenisti and Downs (2014)
10 Rokkan (1966)
11 Oliver (1991)
12 See: Gutmann and Thompson (2004)
13 Garcia (2014)
14 Carolan (2012: 176)

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normative justification behind why demoicracy is an acceptable benchmark to assess
the EU’s legitimacy.

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Chapter 2: Demoicracy
Philipe Van Parijs originally coined the word ‘demoi-cracy’.15 Its initial purpose was
‘to give critical expression to the fact that in the EU, the demoi are the primary
subjects to whom accountability is owed.’ 16 Since then, demoicracy has been
developed on the basis that the EU has a hybrid institutional structure, which
incorporates both supranational and intergovernmental features. It is different to the
traditional democratic nation-state. Following from this, it is contended that the EU
should have its legitimacy assessed within an ‘intermediary realm of political justice
between national and international politics’.17
Demoicracy is an alternative normative framework, providing a different perception
of democratic legitimacy in a multinational polity.18 It involves balancing the rights
between statespeoples and citizens in the governance of a supranational organisation.
Its foundations are built upon the same normative justification for democracy of
collective self-determination, and most of its features are the same. However, it is
argued that so long as divisions of ‘demoi’ exist, there is a need to empower their
separate manifestations within the transnational political order. As opposed to
intergovernmentalism, demoicracy embraces the ‘dual character’ of the EU; it is
comprised of both nation-states (which have distinct demoi), and European citizens.19
Demoicratic legitimacy subsequently stems from a normative assessment based on
15 (1997)
16 Cheneval and Schimmelfennig (2013: 334)
17 ibid
18 Borrás and Radaelli (2015)
19 Bohman (2007); Besson (2006); Cheneval et al (2015)

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‘the balance between, and interaction of, the political rights of individuals and those
of the democratically constituted statespeoples’.20
In order to derive standards, academics have relied upon inductive reasoning.21 This
inherently uncertain exercise leads to disagreement amongst theorists, with only
tentative principles ever being offered. 22 Nonetheless, there is consensus that
demoicracy consists of both a horizontal and a vertical dimension, as it is based upon
an acceptance of the multilevel governance structure of the EU.23 As such, in addition
to the interplay between supranational and domestic institutions, Member States must
also adhere to demoicratic norms between each other. With respect to all this, the
normative core can be said to revolve around ‘transnational non-domination’ and
‘transnational mutual recognition’. In this context, transnational non-domination
refers to the democratic freedom of one state from another’s arbitrary power;
decision-making should involve deliberation and be justifiable. 24 Transnational
mutual recognition then refers to the need for democratic statespeoples to recognise
each other’s political institutions, with an appreciation for their popular sovereignty.25
This involves an acceptance that in some instances authority may be ‘reallocated’ in a
reciprocal manner, such as recognising the validity of foreign laws.26
Demoicracy and the Democratic Deficit
The overall aim with demoicracy is to adequately represent statespeoples and
European citizens in the effective governance of a transnational polity. If this is done
20 Cheneval et al (2015: 2)
21 E.g Rawlsian Constructivism
22 Nicolaïdis (2013); Cheneval and Schimmelfennig (2013)
23 Buess (2015); Hurrelmann (2015)
24 Mueller (2010)
25 Cheneval and Schimmelfennig (2013)
26 Nicolaïdis and Shaffer (2005)

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successfully, the entity is considered to be demoicratically legitimate; and the issues
of the democratic deficit are somewhat negated. Although they continue to exist, they
are comprehended differently. For example, the concern that ‘the European
Parliament has inadequate influence over the Council’ is not considered in isolation.27
The accountability provided through this mechanism is evaluated in conjunction with
that of national electoral systems. There is a change in perception, and new criteria to
assess legitimacy. This contrasts with our traditional conceptions as to how a
democracy should operate. Consequently, there is strong criticism that this
‘compensatory approach’ sells short the democratic ideal; 28 yet other academics
maintain that democratic values are an inappropriate method with which to assess the
legitimacy of the EU.29
Post-National Governance
This normative discussion is complex and prominently situated within the topic of
post-national governance. A fundamental issue is that globalisation is challenging the
already limited ability of the nation-state to pursue a pure democratic ideal.30 As the
world becomes increasingly interconnected, the potential for domination through
external actors increases. 31 For instance, powerful corporations may threaten to
withdraw from countries with taxation regimes or employment policies that they
consider unfavourable.32 A more specific illustration can be seen in the recent Swiss
referendum, where a democratic mandate has been given to set quotas on EU
immigration. The EU has hinted that if this occurs, there will be significant
27 Judge and Earnshaw (2008: 85)
28 de Búrca (2008: 121-9)
29 Warleigh (2003)
30 Macdonald and Ronzoni (2012)
31 Pettit (2010)
32 Bellamy (2013)

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repercussions. 33 As such, the ability of national governments to act freely is
significantly curtailed. External demands need to be satisfied to prevent the economy
from suffering, with the negative consequences that would bring.
Dani Rodrik has gone as far as to posit that only two of the following three elements
can be maintained: integrated national economies, mass politics, and the nation-
state.34 He argues that national governments are incapable of adequately regulating
economic processes of a globalised nature. If the nation-state is maintained with
supranational organisations, then governance becomes split between multiple
constituents, and complications arise. Essentially, the economic advantages of
internationalisation are constraining the ability of the nation-state to act and facilitate
democratic politics. Whilst it is doubtful that any aspect need disappear completely, it
is clear that there are dynamic tensions that need to be accommodated.
All this is exacerbating the issues already present with democracy in its compromised
form within our modern societies. The domain of domestic politics is being
increasingly restricted; the preferences of national electorates are becoming more and
more marginalised. It is difficult to disagree with Moravcsik’s statement that ‘the use
of idealistic standards no modern government can meet obscures the social context of
contemporary European policy-making’. 35 From a realist perspective, democratic
values can be seen as becoming progressively abstract and difficult to attain.
33 Shotter and Spiegel (2014)
34 (2012)
35 (2002: 605)

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Governments subsequently have strong incentives to form associations that are
capable of protecting both their economic and democratic interests.36 Referring to an
earlier example, a strongly enforced EU taxation regime can counterbalance the
power of transnational corporations. Firms may consider operating outside of the EU,
but import tariffs into the internal market may make it more profitable to accept the
legislative requirements. This is unlikely to occur through purely intergovernmental
means, as the national interest in attracting firms can undermine the process. This is
perfectly exemplified by the current EU investigations into corporate tax avoidance in
Member States. The cross-border nature of tax avoidance, and the desire for countries
to remain competitive, necessitates a degree of supranationalism for the problem to be
dealt with effectively.37 Without the desire for federalism, demoicracy attempts to
balance the efficacy benefits against the need to respect demoi.
As an increasing number of issues arise of a transnational nature, it is important from
a legitimacy perspective to allow citizens a stake in this collective decision-making:
more than just indirectly through their governments. As governance becomes more
global, citizens need to exert greater influence on the supranational entities in order to
express their collective self-determination. This is ultimately the key advantage of
demoicracy. If implemented properly, it is more legitimate than intergovernmentalism
because of its emancipatory effects. Citizens are given a direct say in the institutions
that affect them, whilst simultaneously the negative coercion of external actors is
reduced.
36 Bellamy (2013)
37 Rixen (2009)

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Criticism
Despite this, demoicratic theorists are generally pessimistic about the resonance of the
theory,38 which is almost completely absent in most national media discourse.39 As
normative justification is ultimately reliant on any individual’s own perception, this is
a problem. Hurrelman argues that Europeans may generally lack the ‘cognitive and
attitudinal pre-requisite of effective demoi-cratic citizenship’.40 It is not difficult to
see why. State sovereignty has been described as the fundamental principle that
‘anchors our concept of modern politics’; yet it is conflicted with here in a complex
manner. 41 This is arguably the fundamental limitation affecting demoicracy, and
rectifying it may be very demanding. At the very least, bringing an awareness of the
theory into public cognisance should serve to encourage debate. Regardless of
whatever action is taken, it should be appreciated that the aforementioned tensions
over European integration will continue for the foreseeable future. If demoicracy is
not actively pursued, then a less legitimate form of governance may arise out of
constitutional conflict.
Further criticism revolves around the concept of what a ‘demos’ truly is, and the
extent to which the focus on nation-states may exclude certain demoi from European
governance. Within countries like Spain or the United Kingdom, there are ‘peoples’
such as Catalonians or Scots, who may arguably be thought to constitute demoi. As
stated at the outset, it is beyond the scope of this essay to explore the demos problem
fully. For the purposes of this current conceptualisation of demoicracy, the nation-
38 Nïcolaidis (2013)
39 Beetz (2015)
40 Cheneval et al (2015: 9) referencing Hurrelmann (2015)
41 Jackson (1999: 423)

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state is posited to constitute a demos. It is considered, from a realpolitik perspective,
that devolution will occur if these demoi truly need to be expressed.
Overall Evaluation of Demoicracy
Demoicracy should not be ignored simply because of the potential difficulties in its
implementation. The practicalities of how the world operates cannot be ignored, and
need to be accounted for. Even if it is not considered appropriate as a distinct
institutional ideal, it still offers a sophisticated insight into the conceptual difficulties
of governance in contemporary conditions. The legitimacy of the EU is being
challenged, and the debate between federalism and intergovernmentalism will persist.
Demoicracy might be quite an abstract concept, but it has real value in its attempt to
provide a balance between the tensions inherent with modern governance.

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Chapter 3: Demoicracy and the Ordinary Legislative Procedure
With this appreciation of demoicracy, the OLP can now be evaluated. This is the main
method by which the EU creates legislation. It has a bicameral structure, which splits
power between two core organs: the Council of the European Union and the European
Parliament (hereafter the EP). The Council of the European Union represents the
individual Member States, whilst the EP represents the European citizens. Defining
the quality of the legislative process is a difficult and highly subjective task,
exacerbated by the lack of clear demoicratic criteria. Overall, centralised rule making
must take adequate account of the two main interest groups. This chapter will analyse
the process of the OLP, assessing the balance of rights between statespeoples and EU
citizens in order to determine its demoicratic legitimacy.
The first element of the OLP that needs to be appreciated is that the European Council
informally sets the policy-making agenda. This institution is comprised of the heads
of state of the Member States, and requires consensus to make decisions. In this way,
the demoicratic principle that the sovereign statespeoples determine policy areas is
respected.42 The supranational elements to the procedure can thus be understood as ‘a
deep commitment mechanism, an instrumental rather than ontological fact.’ 43
Sovereignty is only sacrificed to the extent that it pursues an aim. There is concern
that this prioritises the will of national demoi over the will of European citizens.44
However, demoicracy is viewed from a transformationalist perspective and does not
necessitate equal representation. At present, this imbalance is acceptable as it serves
42 Cheneval et al (2015: 4)
43 Nicolaïdis (2013: 355)
44 Gaus (2014: 12)

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to ‘accommodate the tensions inherent in the pursuit of radical mutual opening
between separate peoples.’45 That is to say that, currently, there is not the desire for
equal representation. The collective European populace is undoubtedly reluctant to
relinquish state sovereignty to this extent.
The European Commission (hereafter the Commission) then submits legislative
proposals to the EP. Although there are mechanisms by which it can be requested to
act, the Commission generally holds the power of legislative initiative and has
rejected requests in the past.46 It is difficult to remedy this feature with demoicratic
legitimacy; the Commission is officially representative of neither demoi nor citizens.
However, it does not operate in a political vacuum. It is managed by a president, who
appoints the other Commissioners and has general control over the Commission’s
work: providing ‘political guidance’ and setting the agenda for weekly meetings.47
This president is elected by the EP, following proposals from the European Council.
In addition to this, the EP retains a power of censure, and can force the Commission
to resign. All decision-making is done under this shadow. If the Commission fails to
respect its duty to consider the general interest of the Union, it can be removed. In this
way, it is forced to work within parameters acceptable to the EP. However, this is an
extreme method of action, and minor transgressions may simply be accepted out of
convenience. Overall, it should be noted that very few proposals are of the
Commission’s own initiative. 48 This suggests that it predominantly works
harmoniously with the other institutions.
45 Nicolaïdis (2013: 353)
46 Peterson and Shackleton (2012: 179)
47 Chalmers, Davies and Monti (2014: 64-5)
48 Chalmers and Tomkins (2007: 96)

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Ultimately, it must. The Council of the European Union (hereafter the Council) and
the EP determine whether any legislative acts are passed. Despite this, the
Commission’s role should not be underestimated. Its formal monopoly on the
initiation of most legislative acts, combined with its ability to withdraw proposals
(prior to a third reading), gives it significant agenda-setting power. This allows it to
‘frame the terms of debate and legislation.’49 Justification for this autonomous power
has previously relied upon the Commission’s ability to represent a common European
interest. 50 Provided that this interest incorporates the views of citizens and
statespeoples, it should be acceptable from a demoicratic perspective. To ensure this,
the Commission should not exert such influence without stronger mechanisms of
accountability, regardless of any technocratic credentials. One potential change might
be to extend the power of censure to the Council, so that its views wield more
influence over the Commission.
Following the initiation of legislation, the bill is then sent between the EP and the
Council. The proposal is scrutinised and amendments are drafted, before it is then
voted on. It travels between the Council and the EP until either agreement is reached
or the bill is abandoned. In theory this process should provide an adequate balance
between the demoi of Member States and EU citizens. This is because both sides are
forced to reach agreement with each other for any legislative act to take effect.
However, the EU has a sui generis structure, and this is a gross oversimplification. It
is necessary to consider whether these institutions are truly representative of their
constituents.
49 ibid: 97
50 Featherstone (1994: 154-5)

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Representative Quality of the Council
The Council is composed of one minister from each country, a representative of their
government. To the extent that a demos has intrinsic value, it is fair to have this equal
representation. However, executives are often unreflective of overall voter
preferences. Furthermore, their dominance of parliament has been found to restrict
ministerial accountability as members of parliament outside of the government can
only seek to influence.51 Research has shown that the majority of national parliaments
lack the necessary competences to act on EU legislation. 52 This problem is
exacerbated further by the fact that European issues have lacked salience in domestic
elections, weakening the accountability that would be provided through voters
electing a new executive.53
Accountability is thus weak, though it would be unrealistic to expect the views of all
parliaments to be fully represented within the Council. It would be too impractical -
given the scope for potential conflict and available resources - for this to result in an
effective form of governance. Demoicratic theorists have therefore generally accepted
the role of statespeoples as necessary. 54 Instead, oversight institutions might be
considered a more appropriate means of increasing the accountability of executives.
These bodies can scrutinise government policy in the EU and ensure national
parliaments are sufficiently informed. For example, they can prevent executives from
selectively sharing information. Unfortunately, these institutions have been criticised
as generally being weak.55 Strengthening them with increased resources and powers
51 Besselink (2006: 119)
52 Winzen (2012b)
53 Bellamy (2013: 9)
54 Cheneval and Schimmelfennig (2013); Nicolaïdis (2013)
55 Winzen (2012a)

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could lead to the executive being more responsive to the public interest. This would
result in them better reflecting the collective will of national demoi.
Following this, the methods of voting need to be evaluated. QMV is the most
common method used, requiring a number of factors to be fulfilled: 55 per cent of the
members of the Council, with at least 15 members, and these must comprise at least
65 per cent of the population. The requirements are stricter if the Council is not acting
on a Commission proposal. Furthermore, a number of more politically sensitive areas
require unanimity. This requirement of a certain degree of consensus prevents the
arbitrary exercise of political power. Demoi are protected to the extent that there is
enough consensus to form a blocking minority. This would seem a fair compromise,
in light of the need for effective governance. However, a small increase to the
members of the Council required for QMV could serve to better protect demoi
without significantly reducing efficiency.
Overall, statespeoples are adequately represented within the Council. However,
accountability to their national parliaments ought to be increased. This is needed to
ensure that the Council better reflects a broader view of opinion from the Member
States and is more responsive to their interests. In this way, demoicracy is reliant on
Member States embracing the dual character nature of the transnational political
order.
Representative Quality of the EP
Acknowledging the importance of demoi, there have been attempts to give them
expression through other means. One such way is that European citizens are

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represented by Members of European Parliament (MEPs) in a ‘degressively
proportional’ manner. This means that the citizens of smaller Member States have
their influence increased at the expense of larger nations. This unequal representation
can be considered acceptable from a demoicratic perspective, as the complexities of
the demos problem mean that simply expressing the will of the majority would cause
tension. This shift away from majoritarian logic thus serves to compensate for
population asymmetries.56 In this way, a broader spectrum of political opinion from
different countries is more likely to be represented.
However, the EP is meant to represent the interests of EU citizens, not demoi. A
crucial issue here is that, despite being grouped into European parties, MEPs remain
predominantly affiliated to their national counterparts.57 This means that they tend to
vote inline with national party policy, 58 and are particularly influenced over
contentious issues.59 As such, a European sphere of debate in which European issues
are put first cannot be said to exist. The EP’s claim to represent EU citizens is thus
weakened by the precedence afforded to the views of national citizens. It may be
difficult to overcome this issue, but increased independence of MEPs from national
party politics might help. This would give them more freedom to represent the
European interest. Although it might be unpopular, strengthening the EP so that it is
on an equal footing to national governments over constitutional matters could also
serve to ‘change the frame through which the EU is perceived.’ 60 This would
56 Nicoloaïdis (2013: 363)
57 Bellamy (2010: 10)
58 Hix (2002)
59 Hagemann and Høyland (2010)
60 Gaus (2014: 14)

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encourage citizens to appreciate the importance of the organisation, and subsequently
better involve themselves within the European political sphere.
A further issue to analyse is that the EP requires an absolute majority to change the
Council’s position after a first reading. Failure to achieve this results in the act being
passed. In contrast to this, the failure to reach a qualified majority in the Council
would simply result in the status quo being maintained. It is easier to accept a
proposal than amend or reject it. It has thus been argued that this gives the Council
agenda-setting power, as the EP will generally forward proposals to the Council likely
to be accepted at first reading.61 This might come at the expense of the EP’s own
interests: lessening the representation of EU citizens. It is questionable whether an
imbalance of this nature is acceptable, given that the heads of state already set the
overarching policy-making agenda.
Overall though, it should be appreciated that the EP still possesses the same basic
representative character of its national counterparts. Voter turnout is generally not too
different to national standards, and MEPs are still voted for with respect to their
policies. The main issue with regards to its representative quality ultimately appears
to depend on whether or not the European citizens are able and willing to accept a
demoicratic order. Citizens need to embrace the ‘dual character’ and involve
themselves with European politics.
The role of National Parliaments
To further increase the role of demoi in the process, the Lisbon Treaty expanded the
Early Warning System: giving national parliaments a formal role in the OLP. Draft
61 Hagemann and Høyland (2010)

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legislation is sent to national parliaments and reviewed for its compliance with the
principle of subsidiarity. This is a process whereby a simple majority of votes cast
declaring non-compliance with the principle of subsidiarity forces the Commission to
review its proposal.62 If the legislative draft is subsequently maintained, then it must
be justified. Following this, all reasoned opinions on the matter will be considered by
the Union legislator during the OLP.
In this way, national parliaments do not contribute to the procedure other than to
prevent encroachment upon their own powers. It does not appear to enhance the
quality of EU legislation, and may even serve to obfuscate representative
democracy.63 Citizens may be confused as to which institutions are representing their
interests at different levels. Despite this, it has been argued that it has limited
demoicratic value in the way that it provides ‘a strategic channel of direct
communication between Commission and parliaments’. 64 This allows for any
significant opinions of demoi that are not represented by Council Ministers to get
representation within the OLP. However, this is contingent upon the Commission
breaching the subsidiarity principle. As such, this is a very weak method of including
demoi within the process, and does not account for the lack of representativeness in
the Council.
Overall Evaluation
As a final point, it needs to be appreciated that in practice the OLP emphasises the
need for co-operation.65 It is in the interests of all parties to reach agreement, and the
62 Article 7(3) of Protocol (No 2), Consolidated Version of the Treaty on the
Functioning of the European Union [2012] OJ C 326/47
63 de Wielde (2012)
64 Goldoni (2014: 11)
65 Craig and de Búrca (2011: 127-8)

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views of all stakeholders should be continuously taken into account. No individual
institution truly operates in isolation. As part of this process, ‘trilogues’- forums with
very few representatives from the Council, Commission and EP- attempt to facilitate
compromise. It is estimated that these are used in 76 per cent of Commission
proposals under the OLP.66 There are concerns that these cause actors to involve
themselves less in deliberation, under the knowledge that some form of consensus
will likely have been reached.67 A lack of debate from representative institutions
means that decision-making is less likely to be reflective of the views that they should
be giving expression to.
This appears to be a key overarching issue with the OLP. It is an amalgamation of
different interactions designed to facilitate compromise, rather than a procedure
geared towards expressly representing different sources of interest. Demoicratic
legitimacy could be improved by a clearer separation of interest representation, and
increased deliberation at different levels. There should be more positive input into the
process as opposed to a simple absence of vetoing legislative acts. Perhaps the main
problem with this is the lack of a European sphere of debate. This is needed to ensure
that European citizens’ views are more adequately represented in the EP. One way of
achieving this might be to construct a European party system separate from any
national counterparts. At the very least, the perception of the EP as a ‘second order’
parliament needs to end.
Overall, the general structure of the OLP, despite being extremely convoluted,
provides a good balance between citizens and statespeoples. It is in this sense
66 Kardasheva (2009: 25)
67 Häge and Naurin (2013)

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demoicratically legitimate. However, this relies largely upon the extent to which one
is prepared to accept limitations to representativeness in contemporary conditions. In
particular, it is difficult to argue that the Council ministers manifest the collective
self-determination of their respective demoi sufficiently. A version of demoicracy that
relies upon a more theoretical conception of demoi instead of statespeoples would
lead to a different conclusion.

26
Conclusion
The postulate of EU demoicracy may provide the best method of realising the
collective self-determination of the European populace in contemporary conditions.
At the very least, it acts as a formidable conceptual tool, providing unique insights
into how the legitimacy of the EU might be improved. In this article, the OLP was
evaluated through a demoicratic lens. It was ultimately determined that, whilst it is
legitimate in a basic sense, there are undoubtedly areas that could be improved. A key
issue is the lack of representative character of its component institutions. Increased
accountability through oversight mechanisms might provide an important method of
addressing this matter, though there may also need to be a significant shift in EU
citizens’ cognisance of the transnational order.

27
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