Am 7. Februar 2017 hielt der Verfassungsrechtler (HU Berlin, Yale Law School) und ehemalige Richter des Bundesverfassungsgericht Prof. Dieter Grimm eine Keynote Lecture für die Deutsch-Britische Gesellschaft. Die Diskussionsveranstaltung mit Prof. Helmut K. Anheier und Rupert Graf Strachwitz in Kooperation mit dem Dahrendorf Forum und der Hertie School of Governance wird hier kurz zusammengefasst.
The lack of legitimacy of the European institutions endangers the European project. While many may demand more power for the European Parliament (the only European institution directly elected by the people), Prof Grimm made very clear that he feels this would not help decrease the legitimacy deficit of the European Union (EU).
Internal and external legitimacy
Prof Grimm pointed out that there are two kinds of legitimacy for the EU. Initially, legitimacy was established through the sovereignty of the member states (“external legitimation”) working together in the European Council while the parliament had an advisory function. When in 1979 the EP was for the first time elected directly, this was the start of the “dual legitimacy”; the EP creating “internal legitimacy” for the EU.
Photo: Prof. Anheier, Prof. Grimm, Dr. Graf Strachwitz
© Dahrendorf Forum/Oliver Hein
This internal legitimacy is in crisis, but not because the European Parliament (EP) does not have sufficient power. In fact, statistically voter turnouts declined whenever the EP’s powers were extended. According to Grimm, the central problem is that the elections for the EP are national, not European elections. National candidates of national parties campaign with national topics and agendas according to national election laws. Currently, around 200 different national parties have seats in the EP. Only after the elections, they form factions/parliamentary groups which then set a European political agenda. This missing link in campaigning and agenda setting causes problems of accountability and legitimacy.
A less noted development occurred through two judgments of the European Court of Justice (ECJ) in the early 1960s: The court decided that EU law would be directly applicable in member states and that it would take precedence over national law in cases of collision – the question of compatibility being subject to ECJ jurisdiction. As a consequence, the European treaties were “constitutionalised”, i.e. they were de facto upgraded to a constitutional level by the ECJ. The problem Prof Grimm pointed out is that the treaties were never meant to have this status and therefore are not designed accordingly. Instead, they are a lot more extensive than a constitution should be.
“The more ordinary law in a constitution, the less democracy.”
This caused problems for the legitimacy of the EU. While political integration stagnated, legal integration was pushed forward through ECJ jurisdiction. As the common market was the centrepiece of the treaties, the four freedoms attached to it became “super fundamental rights”, protected by the ECJ. What lies at the heart of Prof Grimm’s thesis is this: The upgrade of the European treaties to constitutional level have overburdened the process of European integration unintendedly and unnecessarily.
Strengthening the powers of the EP means the EU would have to rely even more on its internal legitimacy – which is not a very promising approach given its constant crisis and the above stated reasons for it.
What can be done?
Prof Grimm drafted three major recommendations to improve the legitimacy problems of the EU and its institutions:
- Grimm suggested the EP needs to be “Europeanised” and thereby brought closer to the public. Grimm argued for a Europeanisation of the party and election system of the EP. This way, interests could be expressed and balanced before the elections. According to Grimm, the EP needs to engage in European society – which needs a European substructure: European trade unions, parties, media etc.
- There should be clearer limits of communitarisation. Not everything that touches the single market can be dealt with exclusively by the EU. This second suggestion strongly interrelates with the following.
- Prof Grimm suggested a repolitisation of European politics. We should reduce the European treaties to only those laws that are indispensable for a constitution (e.g. aims, institutions, etc.), but downgrade all other provisions to secondary law. The constitutionalisation of the treaties is a fact and cannot be reversed. Political interference with the jurisdiction of the ECJ is not an option because of the separation of powers. But as the treaties’ de facto effect is that of a constitution, they should be designed like one. By downgrading all provisions to ordinary law which are not constitutional in nature, the right hierarchy of norms could be restored. At the same time, not a single provision would be lost. Legally speaking, this would be a very easy act. Politically, we would need the consent of all 27 member states.