Leiden, a.d. IX Kal. Ian. MMDCCLXVIII A.U.C.,
On the 6th of April the Netherlands will hold a referendum on the ratification of the association treaty between the European Union and Ukraine. I personally think this is a total non-issue, being used to actually discuss the decision making processes of the EU, something the organizers have already admitted (do not look at the title of the piece, but at the link of the piece…). Much like GeenStijl, a right-wing populist web blog, and Baudet, the initiators of the referendum, I do not like the way the EU functions. I recognize the democratic deficit. For this reason I am saddened by the campaign they are running, because in their zeal to criticize the EU, they do not always take the truth too seriously. This means that the real cause of the democratic deficit in the EU is not discussed: the fact that the European decision making structure gives national governments a free hand vis-à-vis the national parliaments.
GeenStijl and Baudet criticize the EU for how it has forced through the association treaty without any democratic oversight by the nation states, and by proxy, without giving European citizens a say in this treaty. From a recent article, the link reading: ‘only the voter can save democracy now’, on GeenStijl I quote: ‘[In spite of the coming referendum on ratification], this weekend the European Commission announced with inappropriate pride that parts of the treaty have come into force. That was possible, because the technocrats design such treaties in such a way that they can be implemented without the agreement of the Member States as well.’
This is a blatant lie. The full procedure for such association treaties can be found here. In short, the European Commission (the technocrats, the ‘EC’) sends a recommendation to the Council of the European Union(ministers of Member States, ‘the Council’) to start negotiations with a certain country. If the Council accepts the recommendation, the EC can start negotiating, in close cooperation with diplomats of the Member States. The European Parliament (directly elected by the European people, the ‘EP’) then has to agree with the outcome of the negotiations. Then the Council has to agree to the adoption of the treaty, unanimously in the case of association treaties. In case of certain treaties the national parliaments then have to vote on adopting the treaty. This is also true for association treaties, and here comes the moment where it is glaringly obvious that GeenStijl is just making stuff up: the Dutch lower house accepted the treaty on the 7th of April 2015, and the Dutch senate on the 7th of July.
In other words, alternately the Council, the EP, the EC and national parliaments had a chance to block the association treaty. Because of the Dutch referendum law, allowing to repeal legislation, the decision of the senate and lower house has been overruled, until further notice. However, part of the treaty implies that provisional application of the treaty is possible, again something national governments and the EP agreed to: “the provisional application, which is designed to ensure that the agreement can apply without delay, may stem either from a provision of the decision on signing […].” However, the clause introducing this has also been accepted by Dutch parliament. Even though the advisory referendum law can overrule this legislation by Dutch parliament, it is a fact that both Dutch houses accepted the possibility of a provisional application. Moreover, they could have demanded from the Dutch government to lobby for the exclusion of such a clause on provisional application, which they failed to do. I will admit it is strange that such provisional application is possible, I am against that, but calling it an attack on democracy is nonsense. More importantly, it is not something you can address with a referendum on the adoption of the association treaty as such. Especially not a referendum taking place almost two years after the procedures on adopting the treaty started. If GeenStijl and Baudet really had a problem with the content of the treaty, maybe they should have organized the referendum back in 2015 already, seeing the treaty was accepted by the Heads of State of the Member States in 2014.
Instead, I think the democratic deficit is caused by the lack of oversight national parliaments have on the actions of their own government. The issue is not a lack of transparency between the EC and the Member States, but rather a lack of transparency between the national parliament and the Council/national government. Governments have the resources to ensure that the EC acts on their behalf. They can monitor the EC very closely, using the large diplomatic staff they have. So, if governments act exactly according to the demands of the national parliaments, there is no democratic problem.
However, if the heads of government are imperfect agents, and pursue their own agenda, we have a principal-agent problem of humongous proportions. In fact, national parliaments, the principals, have fairly little insight in what governments, the agents, are doing. While legally speaking they have a supreme say in the policies of the EC, the opaque nature European affairs, having 28 Member States, 28 governments represented in two Councils (one for ministers and one of heads of government), 28 national parliaments (often with two houses), the EC and the EP, means that it is rather difficult to check whether their own government, and by proxy the EC, is actually properly representing them. While in the end they technically can veto legislation coming from Brussels, often it is far too late to effectively do so. Unless several Member States veto such legislation, it is usually tough luck on the national parliaments, as vetoing will be too late to change the legislative process.
Especially because the governments do come together, but parliaments hardly ever do, it might be quite difficult to form a coalition between national parliaments to ensure a large enough group of parliaments forcing their government to oppose the new legislation. One parliament forcing its government to disagree makes a fool of itself, as the government might always say that a compromise was necessary or unavoidable. So in order to not make a fool of itself, and maintain its authority, national parliaments might often assent to legislation that is barely acceptable to them. In fact, so close to their bare minimum standards as to not provoke its veto. And why put in a lot of effort in monitoring the government on European affairs, if it will hardly ever change the behaviour of that government? Yet, legislation could have been much more favorable to national parliaments, had their government been more responsive to their demands.
So, moving away power from national parliaments to the EC actually gives national governments leverage over those national parliaments. The EC is relatively powerless, as it is always subject to the scrutiny of the national governments. However, the national governments can use the information asymmetry versus the national parliaments, and the collective action problem of the national parliaments, to become relatively independent of the national parliaments. Think of all the times Rutte went to Brussels claiming this or that would certainly not happen, only to come back to say that force majeur had forced him to assent to this or that. He knew what he could get or could not get, unless Dutch diplomats are of an astonishing and unlikely incompetence, but he chose to tell parliament something else. This is undemocratic, and we should have a major public debate on this issue. The EC is mostly doing as it is told by the national governments, it is the national governments that fail to be loyal to their parliaments. So, why blame the EC, if the culprits are the national governments?
In short, the EC can hardly do anything at all without the consent of the national governments, and often has to listen to the EP and to national parliaments. So, the European people are represented in three ways. But, national governments can use the opaque nature of European politics to be imperfect agents of their own parliaments. This is an issue GeenStijl should address, while stopping to make up claims about the European Commission ignoring European citizens.
Bottom Line: The EU-Ukraine association treaty has been introduced using democratic measures. The democratic deficit stems from national governments being disloyal agents to their principals, the national parliaments. Let’s instead discuss that.