The European Union: A Crisis of Legitimacy?

Abstract

This article examines the extent to which the European Union can be considered to suffer from a crisis of legitimacy, a common refrain in recent years. It argues that critics inappropriately compare the EU with the standard democratic governance arrangements of a Member State, when the EU is a sui generis entity; a peculiar mix of supranationalism and intergovernmentalism. Nonetheless, the article assesses the EU against the criteria for a democratic legitimacy and finds that there are no obvious fundamental failings. That said, the EU is not perfect, and the article argues that it must address its communication deficit and begin a sustained period of real dialogue on its future direction and end point, territorially and constitutionally.

On 12 June 2008, the Irish electorate rejected a constitutional amendment to ratify the Lisbon Treaty by 52.3–47.7%—with a turnout of 53.1%. As this was the only European Union Member State electorate afforded the opportunity to vote on the treaty, the result was significant. But it was not overly surprising. Its predecessor, the proposed Constitutional Treaty, was abandoned in 2004 following ‘No’ votes in France and the Netherlands—although ‘Yes’ votes had been secured in other Member States such as Spain and Luxembourg. Previously, the Irish electorate had rejected the Nice Treaty the first time it was consulted in June 2001. And the crucial Maastricht Treaty, which formally established the European Union, was initially rejected by the Danish electorate in 1992 and only narrowly accepted in France.

The results of these popular referenda mark what many commentators and scholars call the end of the ‘permissive consensus’, which had allowed political elites to take the absence of vocal objection as passive consent to the ceding of certain functions to the European Economic Community [8]. The Maastricht Treaty with its explicit political aims, ambitions and powers thus marked an awakening of vocal opposition to further European integration.

The referenda results are also considered symptomatic of an underlying ‘crisis of legitimacy’ which has pervaded the European project since 1992, and the purpose of this article is to assess the extent to which the EU genuinely suffers from such a crisis. To lay the basis for this critical assessment, I will first examine the academic literature on the subject and outline a suitable conceptual definition of legitimacy. At this juncture, I will argue that the debate is more evidently centred around ‘democratic legitimacy’ than legitimacy per se. I will then consider the various scholarly arguments for and against the existence of a crisis which, in the case of critics, more often than not focus on issues of accountability, transparency and direct electoral participation—aspects of an alleged ‘democratic deficit’ in the EU. But such denunciations are oversimplified and do not recognise the sui generis nature of the EU as a complex political system. Moreover, they are based on a normative judgment that the democratic architecture of a typical nation state is appropriate at EU level. Such a judgment also lacks recognition of the absence of a political will amongst Member States for such far-reaching institutional reforms. Nonetheless, this article will test the EU against the criteria for democratic legitimacy, as defined, and will argue that the system has no obvious fundamental failings.

But widespread perceptions of a democratic deficit cannot necessarily be left to linger; the European Union does have to address some underlying problems. The EU needs to simplify its decision-making processes, communicate itself more effectively to secure citizen buy-in, and begin debating a narrative on where the project should reach its end point, politically and territorially. These practical measures, rather than institutional adjustments, will help allay any fears, real or imagined, of a legitimacy crisis.

Conceptualising legitimacy

Before proceeding it is important to agree upon a suitable conceptual definition of legitimacy. A number of scholars offer parameters in which to frame such a definition. At a basic level, legitimate is said to mean ‘rightful’, and legitimacy manifests itself in ‘persons subject to the binding rules made by political authorities, or at least the overwhelming majority of them, [accepting] that the political institutions making those rules have the right to do so’ (see p. 160 in [9]). In a similar vein, Gurr states that ‘governance can be considered legitimate in so far as its subjects regard it as proper and deserving of support’ (see p. 185 in [17]). But these definitions are quite narrow; legitimacy could be conferred in such a manner by the loyal subjects of a ruling monarch, for example. Similarly, in the absence of large-scale protests, it could also be argued that the EU has no crisis of legitimacy. The difficulty lies in the fact that the definition is not necessarily tied to democracy, which is the key aspect of the modern legitimacy debate: Are the institutions and workings of the European Union ‘democratically legitimate’? In this sense the oft-used term ‘democratic deficit’ signifies a crisis of democratic legitimacy.

It is therefore appropriate to consider what elements confer a sense of democratic legitimacy. Bogdanor [4] contends that legitimacy is widely accepted as being conferred by democratic elections and in that narrow sense, the EU can be considered fully legitimate. But he also suggests that the EU does not enjoy the sort of legitimacy in the minds of citizens that the democratic systems of Member States do. Thus, he argues, legitimacy is ultimately dependent on a citizen identifying him- or herself with the polity in which he or she lives. A sense of belonging is therefore important. Added to this, Bogdanor argues that the EU is also judged, and therefore garners legitimacy, through results or ‘delivery’.

Beetham [2] extends these parameters of democratic legitimacy still further, arguing that there are three components to legitimacy in liberal democratic societies: first, the performance of institutions; second, their conformity to the democratic values of consent, representation and accountability; and third, collective political identity, without which citizens may question the right of a particular system to make decisions on their behalf, regardless of outcomes.

Sharpf [30] groups together these aspects above to produce two distinguishable types of legitimacy, ‘input legitimacy’ and ‘output legitimacy’. Input legitimacy is garnered through participation, elections and institutions, while output legitimacy manifests itself in outcomes for the citizen, or ‘delivery’. Meyer [20] expands a little on Sharpf's analysis on input and output legitimacy. In input terms, legitimacy includes the authorisation of power holders (through elections); responsiveness in the exercise of power (involving the public and conflicting viewpoints); and accountability, incorporating ‘answerability’ and sanction (including stepping aside if required). In output terms, Meyer also points to legitimation through performance of governance. He does, however, argue that too much emphasis is often placed on input legitimation, particularly ‘authorisation’ through elections, and that insufficient attention is paid to the role of political communication in legitimating governance.

Finally, Arnull (see pp. 3–4 in [1]) states that while the concept of legitimacy can be ‘elusive’, it is useful to distinguish between what he terms ‘formal’ and ‘social’ legitimacy. Formal legitimacy centres on how the entity in question was established and whether applicable legal requirements were satisfied. In this sense, he argues that the EU's legitimacy is ‘unimpeachable’: it is based upon a series of treaties freely entered into by Member States, which have been ratified in accordance with their own constitutional obligations. Social legitimacy, on the other hand, is more difficult to acquire and retain. It centres on the extent to which the allocation and exercise of authority within the entity commands general acceptance. However, taken in the context of the above discussion, formal and social legitimacy are arguably elements of ‘input’ legitimacy.

An agreed conceptual definition of democratic legitimacy is therefore appropriate, and it should incorporate input and output elements. In input terms, it should involve free and fair elections of representative institutions; avenues for public participation and responsiveness by those in power; accountability (including sanctions); and a sense of belonging or identification with the system of government. Output legitimacy is garnered through ‘delivery’ and results for citizens, which in turn can bolster identification or social legitimacy.

The European Union and the legitimacy debate

With a conceptual definition of democratic legitimacy now outlined, one problem immediately emerges: Can and (or) should the European Union be assessed according to a conceptual definition designed with a liberal democratic state in mind? For the extent to which scholars consider the EU to have a crisis of legitimacy, or indeed none at all, is bound up in perceptions of what the EU is and what it ought to be. Is the EU an intergovernmental organisation or a federal state in the making? Is the EU a sui generis system of governance or a system to be treated like any democratic state? These questions must be borne in mind as providing context for the ensuing debate. After all, legitimacy can be said, in basic terms, to manifest itself in a system in which at least the overwhelming majority of persons accept that the political institutions have a right to make binding rules which affect them [9].

Majone and Moravcsik both argue that there is no democratic deficit and therefore, by extension, no crisis of legitimacy. Majone [18] contends that the EU is effectively a ‘regulatory state’ and should not be compared with the democratic governance arrangements of a nation state. In seeing the EU as a regulatory state, Majone seeks to shift the focus of attention ‘to the delegation to European institutions of specific functional tasks that can be tackled more efficiently and/or credibly at the supranational level’ (see p. 28 in [18]).

If one accepts the ‘regulatory model’ of the EC, then, as long as the tasks delegated to the European level are precisely and narrowly defined, non-majoritarian standards of legitimacy should be sufficient to justify delegation of the necessary powers [18].

From this perspective, the internal market and its workings is the primary function of the EU, and the Member States have delegated authority to the institutions to take actions in this area. Legitimation is provided through the results of the EU's narrow remit of ‘efficiency-oriented’ policies, as distinct from a nation state's typical redistributive-type policies, which would require democratic legitimation. Majone concludes that so long as citizens and their elected representatives oppose the idea of a European federation, we should not expect parliamentary democracy to ‘flourish’ at EU level: ‘there is no reason at all to think that the political and constitutional arrangements of the future will mirror the institutional architecture of the nation-state’ (see p. 27 in [18]). In this sense, aspirations of democratic legitimacy need not apply.

For Moravcsik [22] the EU should similarly not be looked upon as a typical nation state with a Westminster-style system of governance, but rather as an intergovernmental regime to manage interdependence between nation states. While acknowledging that most politicians, scholars and members of the public appear to agree that there is a democratic deficit in the European Union, he believes that the two primary reasons for this—a perceived distance from individual citizens and lack of common history, culture, discourse and symbolism—should not disqualify the EU as being democratically illegitimate. Moreover, Moravcsik argues that the EU is legitimate when judged against the existing advanced industrial democracies rather than an ideal plebiscitary or parliamentary democracy. ‘Its institutions are tightly constrained by constitutional checks and balances: narrow mandates, fiscal limits, super-majoritarian and concurrent voting arrangements and separation of powers’ (see p. 603 in [22]). In response to the question of low citizen participation, Moravcsik argues that the issues dealt with by the EU are of low salience in the minds of voters. The EU does not have primary competence in the most salient political issues: taxation, social security policy, pensions, health care provision, education or law and order. ‘Lack of salience, not lack of opportunity, may impose the binding constraint on European political participation’ (see p. 616 in [22]).

More recently, in ‘The Myth of Europe's “Democratic Deficit”’ [23], Moravcsik produces a clear point-by-point rebuttal of the democratic deficit claim. He argues that the European Union has a limited policy role; EU decision-makers endure greater levels of accountability and transparency than do their counterparts in many nation states; the EU delegates certain tasks to quasi-autonomous non-governmental organisations (quangos), but so do nation states; the EU deals with issues of low salience, which helps explain low citizen interest; and normal legislative proposals must surmount higher barriers than in any nation state. Moravcsik thus concludes that ‘[i]t is time we stop holding the European Union to a democratic double standard, a standard no nation-state can meet, on the basis of innuendo’ (see p. 341 in [23]).

However, the majority of scholars disagree with these viewpoints. And the critical issue is the perception of a democratic deficit in the EU, a perception guided by the unshaken belief that the EU should conform to the norms, values and processes of a liberal democratic state. The EU is after all, they argue, based upon the principle of democracy, and it is in this sense, the norms of a liberal democratic state, that the conceptual definition of democratic legitimacy clearly comes into play.

Follesdal and Hix [16], for example, argue that a democratic polity requires contestation for political leadership and over policy direction, and that the EU therefore suffers from a democratic deficit; it ‘is an essential element of even the “thinnest” theories of democracy, yet is conspicuously absent in the EU’ (see p. 533 in [11]). Similarly, Bogdanor [4] contends that the EU's institutions and procedures leave much to be desired by democratic standards. The EU is seen as ‘remote and unpredictable’, direct elections to the European Parliament (EP) ‘seem to have no demonstrable political consequences’ and the Council of Ministers and European Commission lack any popular electoral mandate (see p. 4 in [12]). For Bovens [5], a lack of accountability is the key issue: the Council is not accountable at EU level and the European Parliament is weak. Featherstone [15], on the other hand, believes that the Commission and Monnet's conception of what it should be is at the heart of the legitimacy problems. Public opinion does not understand nor accept its leadership role.

Consequently, scholars tend to focus much of their attention on institutional tinkering as the means to enhance the input legitimacy of the EU, while others (particularly [16]) contend that output legitimacy through ‘results’ can only be legitimate if there is a link between voter preference and outcome. But these views tend to mask an oversimplified normative judgment of the EU and do not appear to accept the sui generis nature of the system and the delicate balance struck between supranationalism and intergovernmentalism. This balance has been agreed upon by the democratically elected governments of the Member States. Nevertheless, it is worth testing the EU against the criteria for democratic legitimacy.

Input legitimacy: free and fair elections of representative institutions

The European Union has four key governing institutions: the European Commission, European Council, Council of Ministers and European Parliament. The European Parliament is a directly elected institution with 736 members. The number of members elected to represent each Member State is roughly proportionate to the size of the respective populations, and Members of the European Parliament are elected every five years. The Council of Ministers consists of the democratically elected ministers of the 27 Member States. The European Council comprises the 27 democratically elected heads of government. Finally, the Commission, while not directly elected, is nominated by the heads of government in the European Council and approved by the European Parliament, which must first approve the nominee for president of the Commission and then the remaining 26 nominees en bloc. The Commission includes a representative commissioner from each of the Member States, though upon entering office, commissioners are duty-bound to act in the interests of the EU as a whole.

The European Union, with the exception of the direct election of the Commission, thus appears to meet the requirement of free and fair elections of representative institutions. But critics who argue that there is a democratic deficit disagree. It is argued that the European Parliament (EP) remains relatively weak and should be further empowered and provided with co-legislation powers in all areas except those involving the surrender of national sovereignty, alongside an enhanced supervisory role of the Commission [27]. In this oversight role, it is recommended that the EP be given the power to dismiss individual commissioners rather than censuring the Commission as a whole, which is the case at present [4,15]. It is argued that the EP should play an enhanced role in the formulation of a new Commission. Bogdanor [4] suggests tying the European Parliament elections to the election of the Commission president, with the Europe-wide parties declaring their preferred candidate in advance. This, it is argued, would increase the relevance and importance of European political parties and provide a mandate for the successful candidate for Commission president. Featherstone [15] goes a step further in saying that the Commission president should be elected from within the Parliament's own composition. The European Parliament could thereafter assume a typical government–opposition divide, as is the case in the vast majority of liberal democratic states.

The reality is that further empowering of the European Parliament is provided for under the Lisbon Treaty, but falls short of that proposed above. Under the proposed Treaty, the number of areas in which the Parliament has codecision powers with the Council of Ministers will increase, and it will also have a greater role in the EU's budget. But a role in the direct election of a Commission president (from its own membership) is not provided for, and this will remain the case so long as the democratically elected governments of the Member States feel it unpalatable. The same can be said of proposals to directly elect the Commission president either by a simple majority vote of the citizens of the EU or by a US-style electoral college system (see [6]).

It should also be noted that the direct or indirect election of the Commission president through such mechanisms above would have the effect of overly politicising the Commission, which, after all, has important oversight functions in monitoring legislative implementation in the Member States and their merger control powers. Follesdal and Hix [16] recognise this difficulty and propose delegating these functions to independent agencies, but this is likely to cause consternation among those who already hold concerns about the accountability of agencies at European level.

The Commission ultimately garners democratic legitimacy through its nomination by the 27 democratically elected governments of the Member States and its approval by the European Parliament. It is a sui generis political institution with powers of policy proposal, representation and oversight. While utopian standards of democratic legitimacy through free and fair direct elections may not be met in this case, it is not necessarily a fair criticism, given the Commission's unique role within the EU. Furthermore, edging the Commission towards a federal executive model will not result in greater legitimacy, given that there is little popular support for a federal EU.

Input legitimacy: avenues for public participation and responsiveness by those in power

There are numerous avenues for Europeans to participate in and influence EU policymaking. These include referenda, European Parliamentary elections, national elections, and through national parliaments and public consultations. But while avenues exist, response is relatively low, possibly reflecting the low salience of policy issues in which the EU has a role [23]. Follesdal and Hix contend that ‘it may equally be the result of a lack of democratic arenas for contestation’ (see pp. 551–552 in [16]), but this is debatable. More likely is the fact that, coupled with the low salience of its policies, the EU is suffering in the same way as Member States are from a decline in participation and engagement in politics [31].

In terms of responsiveness, Moravcsik contends that the dominance of directly elected politicians in the EU policymaking process ‘explains why the EU constantly responds to public pressure’ (see p. 335 in [23]). This, he says, is demonstrated by action in the areas of agricultural supports, genetically modified foods, trade negotiations, services deregulation, labour market reform, energy policy and environmental protection. In more recent times, there has been EU action on airline passenger rights, mobile roaming charges and reducing red tape for businesses. At a constitutional level, consider the EU's response to Ireland's ‘No’ vote in the Lisbon referendum: European leaders were willing to amend proposals to reduce the number of commissioners and provide legally binding guarantees to allay Irish voter concerns over neutrality, abortion and taxation.

Input legitimacy: accountability

Are EU decision-makers accountable to the extent that they can be called to answer for their actions before a designated forum, which may include sanctions? The answer is yes. The Council of Ministers brings together elected ministers who are ultimately accountable to their head of government and national parliament (and electorate) at home. The extent to which this accountability is conducted is dependent on national circumstances. Members of the European Parliament are directly accountable to those who elect them and can be voted out of office at the next EP election. The Commission is accountable to the European Parliament, to which it submits proposals and reports and can be called upon to answer parliamentary questions. The ‘nuclear’ accountability option for the EP is to remove the Commission from office en bloc by a vote of censure.

Nonetheless, critics of the democratic deficit highlight what they deem outstanding issues. In relation to the Commission, Featherstone [15] calls for greater political accountability and is of the view that the Commission should be based on the classic executive–legislative model of the modern nation state. While the Commission is not elected from within the membership of the EP, the Parliament has been further empowered in this respect in recent times and successfully flexed its muscle in 2004 when it threatened to veto the appointment of an entire Commission unless two nominees were withdrawn and a third reshuffled [7]. There is also practical merit in providing the EP with the power to dismiss individual commissioners in addition to the power to censure the Commission as a whole, as is the case at present [4,15].

Bovens [5] is critical of the accountability arrangements for the Council of Ministers, particularly the absence of collective or individual accountability to any other forum in the European Union. Accountability, he argues, is also made difficult at national level by virtue of Qualified Majority Voting in the Council; a national minister can claim to have been outvoted in the Council. Bovens also points to the rapid development of the EU's Common Foreign and Security Policy (CFSP) and the inability of the EP to hold the Council to account in this Pillar II area. However, the fact of the matter is that Pillar II issues are sensitive policy areas for Member States, and they should remain subject to intergovernmental control rather than supranational interference. Executives tend to have considerable autonomy in this policy area at national level anyhow.

There have also been calls for greater transparency in the Council, particularly given that it acts as a legislative body (in most areas in cooperation with the European Parliament), and efforts have been made in this regard. Voting records on codecision legislation are now publicly available, while selected sessions are open to the public. These reforms are not insignificant, as the Council is effectively an intergovernmental institution, which generally brings with it ‘working practices stemming from classical diplomacy, such as closed doors and secrecy’ (see p. 82 in [10]). The reluctance of Member States to open up proceedings has been understandable, lest they be found to appear on a losing side and suffer domestic political consequences. Furthermore, criticism of the early stages of the legislative process, which involve closed-door working groups and Coreper (Committee of Permanent Representatives) meetings, does not take into account the fact that national legislation is also formed by officials working behind closed doors.

Another area of contention in the democratic deficit debate is the creation of agencies at EU level. Bovens [5], for example, argues that agencies have been established in such a way as to evade political accountability. These include the European Central Bank (ECB), Europol and the European Defence Agency. But Moravcsik [23] argues that nation states themselves create stand-alone independent agencies, particularly where specific technical expertise is required. In a similar fashion, they are insulated from popular pressure but ‘clearly lie within the norms of common Western constitutional practice’ (see pp. 335–336 in [23]). Nonetheless, it is desirable that such agencies be answerable to another EU forum, and the European Parliament has partly won a battle to make the ECB more accountable to it.

Finally, a consistent criticism of the EU is that national parliaments have been sidelined and should have a greater role in EU affairs and oversight. To some extent the proposed Lisbon Treaty makes some moves in this direction. Under the Treaty, all proposals for new EU legislation must be sent directly to national parliaments at the same time they are sent to the European Parliament and Council for consideration. Parliaments can offer ‘reasoned opinions’ on the proposals. If national parliaments feel strongly that the EU is exceeding its remit and that policy would be more appropriately made at a lower level, a ‘yellow card’ procedure can apply. Under the procedure, if one-third of parliaments voice an objection, the Commission must maintain, amend or withdraw the proposal. In order to maintain the proposal, the Commission must submit its reasons to the EP and Council and secure the approval of a majority in the EP and 55% of members in the Council. These proposals therefore do give national parliaments a greater say, but to what extent they act upon them is another matter. Just as EU policy actions may be of low salience to citizens, members of national parliaments recognise that there are few votes in EU scrutiny.

Input legitimacy: a sense of belonging or identification with the system of government

The creation of a common European identity or ‘demos’ has been a challenge, as Europeans have largely not bought into the sense of European citizenship, nor do they share the same enthusiasm for integration that European elites have expressed. This lack of a European demos and the apparent disconnection between citizens and the European Union's system of governance has been a cause of concern for some time.

The idea of developing a European identity and specifically a concept of European citizenship stems from the perceived need to underpin and safeguard the process of European integration itself… [it is] part of a wider agenda to strengthen the democratic legitimacy of the Union (see p. 44 in [19]).

It is argued that weak identification with the European Union manifests itself in relatively low turnouts for European Parliamentary elections, which in effect act as ‘second-order’ elections on domestic issues. There is an absence of EU issues in national general election debates, and there have now been several ‘No’ votes in referenda on treaty change. There is also an absence of an EU-wide political class or European political parties which permeate the consciousness of voters.

A number of measures have been taken to try to address this problem of identification, symbolically through an EU flag, anthem and passport, and more substantially through EU citizenship, the Charter of Fundamental Rights and the attempted Constitutional Treaty (see p. 378 in [24]). The impact has been minimal. Some scholars argue that reforming and democratising the institutions will help create a demos [4], but so long as the salience of EU policy issues remains low, this is highly questionable.

But survey data would appear to suggest that things are not as gloomy as they appear in this regard. For example, a Eurobarometer survey published in December 2006 asked Europeans what they considered to be their personal values, and second, what values they felt best represent the European Union. The responses show that the same three values appear in the top four values attributed to each: peace, human rights and democracy. Interestingly, in the context of this article, democracy was identified as a personal value by 24% of respondents, yet 38% of respondents said that democracy was a value which best represented the EU (see p. 35 in [11]).

In a similar vein, a sense of trust can be considered characteristic of identification. A Eurobarometer poll published in December 2007 found that Europeans trust the European Parliament (55% of respondents), Commission (50%), the ECB (47%), the Council of Ministers (44%) and the Union as a whole (48%) more than they trust their national parliament (35%). The placing of such trust over and above that of national parliaments surely points to some sense of positive identification with the European system of governance (see pp. 54, 94 in [12]).

More fundamentally, an appropriate question is whether or not a common European demos is possible, particularly when the European Union comprises 27 distinctive nation states, each with its own history and cultural characteristics. Schlesinger and Kevin suggest that we should not imagine a single European public sphere as the likely outcome of European integration, but rather consider the growth of interrelated ‘spheres of European publics’ (see p. 228 in [29]).

Output legitimacy: policy delivery

The sole avenue of output legitimacy is through delivery of results for the citizen. Majone [18] argues that while redistributive policies require legitimation by majoritarian means, ‘efficiency oriented’ policies, which he equates with the EU's work, are legitimated by results. They manifest themselves in the more efficient working of the single market, the capping of mobile roaming charges and the monetary policy work of the ECB, for example. Follesdal and Hix [16] are not convinced and contend that legitimacy cannot be garnered through a positive policy outcome and that there must be a link between voter preference and policy outcome. Popular democracy or ‘majoritarian’ rule, they argue, is better than ‘enlightened’ bureaucracy. However, the case against the appropriateness of a Westminster-style majoritarian model has already been made. Nonetheless, it must be borne in mind that the elected decision-makers at EU level represent the preferences of voters, while legislative decision-making entails ‘super-majoritarian and concurrent voting requirements’ (see p. 603 in [22]).

If it is assumed that positive delivery by institutions will foster support for further action, consider the following Eurobarometer poll results published in June 2008 [13]. The Commission sought the views of Europeans as to what they consider the best decision-making levels in several areas. Large majorities responded that the following policies should be made by national governments: pensions (73% of respondents), taxation (68%), social welfare (67%), education policy (66%), health (64%) and fighting unemployment (57%). These statistics reflect the sensitivity and high salience of these issues. Nonetheless, in the following areas, majorities—in some cases large majorities—indicated that decision-making should be made ‘jointly within the EU’: fighting terrorism (79%), protecting the environment (71%), scientific and technological research (70%), defence and foreign affairs (64%), energy (61%), immigration (58%), fighting crime (58%), competition (55%), agriculture and fisheries (51%) and fighting inflation (51%) (see p. 8 in [13]).

In addition, a recent Eurobarometer poll published in December 2008 found that 53% of Europeans feel that their country's membership in the EU is ‘a good thing’. Only 15% said that it is ‘a bad thing’, while 27% responded ‘neither good or bad’ and 5%, ‘don't know’. In the same survey, 45% recorded a positive view of the European Union, 36% were ‘neutral’, while only 17% had a negative view (see p. 31 in [14]).

Looking at all the evidence, and while highlighting the sui generis nature of the EU, it is possible to deduce that claims of a democratic deficit and legitimacy crisis are unfounded; there are no obvious fundamental failings in the European Union.

Complexity, communication and end point

Despite this, there are issues which do need to be addressed by European elites. First, the EU can be said to suffer from a ‘crisis of complexity’. The unique nature of the political system and its pooled sovereignty and shared decision-making practices do not allow citizens a sense of ownership over policies; it makes it difficult to ascertain what role their elected representatives have played in formulating policy; and, sensing that they have little chance of making their voices count, citizens simply stop engaging and withdraw from participating in elections [9]. Nugent [25], for example, identifies 30 distinctive (decision-making) procedures, many with internal deviations. In the case of treaty referenda, those voting are confronted with a dense, legalistic and inaccessible document. In such situations, as was the case with the Irish Lisbon referendum, a sizeable proportion of people voted ‘No’ (45% in the Irish case) because they did not understand the contents of the Treaty (see p. 12 in [21]). Therefore, to some extent, input legitimacy and identification with the EU system of governance is undermined by an overly complicated system, one with which many ordinary EU citizens cannot connect.

There are also suggestions of a ‘communication crisis’, which can have an impact on perceptions of legitimacy. Meyer [20], for example, argues that too much emphasis is placed on electing institutions as a method of enhancing legitimacy. The media plays an important role in nation states in informing debate and deliberation on policy, and in ensuring transparency and accountability of government. At EU level, Meyer contends, the various national media often resort to negative reporting and stereotyping (for example, the portrayal of the Commission as overly influential). The Irish Oireachtas Sub-Committee, which was established to examine the reasons behind Ireland's ‘No’ vote in 2008 and the future of Ireland in the EU, made some interesting points in this regard: European news tends to be low on the agenda; this, at times, can be linked to the fact that the national political system pays little attention to EU issues; and there is poor communication between the European institutions and sections of the Irish news media. This translates into the low prominence of European issues in public discourse (see pp. 58–59 in [26]).

Consequently, the communication deficit between the institutions and all sections of the media must be addressed. There should be a more proactive and balanced approach taken by the media, and those who use it at EU level could have an important impact in legitimating governance. The media could properly credit the EU in places where it has improved citizen rights and quality of life, and also challenge attempts by governments to unfairly blame ‘Brussels’.

Finally, the EU has an ‘end point crisis’ by virtue of the absence of an agreed narrative on where the project will end, constitutionally and territorially; as it is, it appears to be permanently under construction [28]. And in this political vacuum fear of further centralisation and a federal Europe have room to grow. It is no great surprise that the end of the permissive consensus occurred in tandem with the growth in constitutional tinkering. Following the Treaty of Rome, it was almost 30 years until the Single European Act (1986). Since then there have been four treaties (including Lisbon) in the space of just over 20 years. And the legitimacy of the European project (going forward) will continue to be an issue for citizens so long as the end point or finalité politique remains unclear [28]. Therefore, a clear constitutional settlement and narrative on the territorial end point is required. Each of these, however, is difficult. In the case of the former, it has been tried already. In the case of the latter, the diplomatic ‘carrot’ of potential membership is one of the EU's most significant foreign policy tools.

Conclusion

The European Union is a complex political system, reflecting the sui generis nature of the political compromise reached among Member States. It is a peculiar mix of intergovernmentalism and supranationalism. Therefore, at the outset, it is unfair to hold the system up against the democratic legitimacy standards of a modern nation state with Westminster-style political institutions. Indeed, a fundamental question which appears to be largely absent in the debate is why the EU should mirror the political system of a nation state. As Bellamy and Castiglione contend, ‘[d]emocracy only works if it is embodied in a mix of institutions and decision-making procedures that suit the society in which they apply’ (see pp. 82–83 in [3]). The Union's institutions have been agreed to and moulded over the course of the system's political evolution, and the democratically elected governments of the Member States have agreed that they best suit the European Union.

In this respect, those who claim the EU suffers from a democratic deficit and, by extension, a crisis of democratic legitimacy, do so on ‘subjective’ grounds [23], a consequence of a certain normative judgment of the EU. The EU is not a nation state nor is there widespread support for one in the form a federal Europe. There are no mass protests against the EU and its constitutionally defined role in certain proscribed policy areas. While the ‘permissive consensus’ may have ended and a number of negative referenda results have been recorded, this arguably says more about disagreement over where the EU is heading and not about where it is now. If there is a legitimacy issue, it is about agreeing where the end point of the project is.

Nonetheless, in assessing the European Union against the criteria for democratic legitimacy it is evident that there are no obvious fundamental failings. The results therefore suggest, in both input and output terms, that critics of the EU have oversimplified their case while refusing to accept the exceptional nature of the EU's political system. Critics also disproportionately focus on institutional tinkering in their assessments. This article has critiqued the relevant suggestions; while minor adjustments could be worthwhile, the difficulties which surround major changes are indicative of the sensitive balancing act which is the EU's constitutional order. Furthermore, recommendations in the area of the Commission, for example, would have the effect of edging the Union towards federalism, an end point with little widespread support.

In addition, the disproportionate focus on institutional tinkering has deflected attention from other practical areas in need of genuine debate. While the perception of a democratic legitimacy crisis may be ‘subjective’, it is unsustainable to allow such perceptions to linger. Where possible, the European Union's decision-making structures and processes need to be simplified; there is a significant communication crisis to be addressed at both EU and national levels; and, crucially, European elites must engage citizens in a narrative on the end point for the EU, constitutionally and territorially. Otherwise, referenda on complicated EU treaties will continue to pose a problem into the future.