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Saturday, June 29, 2013

Federalism and Solving the Democratic Deficit: Causing Bad E.U. Legislation?

One major criticism of the E.U. has concerned its “democratic deficit.” The European Commission, the E.U.’s executive branch, has taken most of the criticism because the bureaucrats are not elected. Even though the European Council consists of elected state executives, the state legislatures are viewed as “closer to the people” and therefore more democratic. At the E.U. level, the European Parliament is the most directly democratic, as the EP’s representatives are directly elected by E.U. citizens. Therefore, one means of reducing the “democratic deficit” has been to increase the Parliament’s authority relative to those of the Commission and the Council. Lest it be thought that this solution has no drawbacks, the case of whether E.U. ships should be permitted to be beached for recycling in South Asia illustrates a problem.
 
                                                Where Ships Go to Die
                                                                Beaching old ships for recycling in South Asia is cheaper but can result in leaks of toxic chemicals.
                                                                Image Source: Agence France-Presse/Getty Images
 
Facing pressure from South Asian governments, the E.U. state leaders on the European Council opposed a ban on beaching over the objections of environmental groups. Facing a different political dynamic, the European Parliament favored the ban. After weeks of negotiations, the parliament and council agreed to a compromise. Beaching a ship would be allowed as long as “fixed structures” are involved. As this wording is notoriously open to interpretation, clarity was sacrificed for the sake of a compromise.[1]
Interpretation may not even be necessary, as the E.U. has no language in the compromise to prevent ships from changing their flags, Patrizia Heidegger of the NGO Shipbreaking Platform observed. “So the stronger language won’t mean much,” she added.[2] The compromise looks a bit like Swiss cheese. Lest this flaw be attributed solely to politics, that the Council had to negotiate with the Parliament on the matter means that the solution to the “democratic deficit” is at least partly to blame. That is to say, public policy can suffer from efforts to reduce the deficit.
Of course, that the E.U. consists both of states and citizens means that the Council and Parliament both have vital roles in the E.U.’s government aside from the issue of democracy in a federal system. So public policy being diluted in the negotiation process is also a necessary part of having a federal union of states with direct effect. Even if no “democratic deficit” existed, in other words, the involvement of both the Council and the Parliament, and thus the negotiation, would be on firm ground. Even so, this “cost” of having a federal union can be minimized by the principle of subsidiarity, wherein legislation is to be accomplished at the lowest governmental level possible. In the case of the U.S., the problem of “lowest common denominator” federal legislation can in principle be mitigated by the fact that Congress’s powers are enumerated, and thus limited, with the residual sovereignty residing with the state governments. The problem is thus when too much legislation occurs at the federal level, whether in the E.U. or U.S.

1. Costas Paris, “EU Won’t Ban Ship Recycling on Asian Beaches,” The Wall Street Journal, June 26, 2013.
2. Ibid.