Laurent Pech, Professor of Law, Middlesex University
Steve Peers, Professor of Law, University of Essex
The European Union is frequently criticized for being undemocratic or suffering from a “democratic deficit.” One common assertion is that all EU decisions are made by the unelected bureaucrats of the European Commission.
This post will demonstrate why this criticism is fundamentally flawed. It stems from a misunderstanding of both the European Commission’s actual powers within the EU’s decision-making processes and how the European Commission is appointed. Let’s examine each of these points.
Who Does What? Does the Commission Make All the Laws?
It is crucial to understand that the European Commission does not wield as much power as many believe. The typical EU decision-making process starts with the Commission having the sole power to propose legislation. These proposals are then reviewed by both the Council of the European Union (representing national governments) and the directly elected European Parliament (representing EU citizens). While some claim the Council and Parliament simply rubber-stamp the Commission’s proposals, this is untrue. The Council and Parliament can, and do, amend or even reject Commission proposals.
This chart illustrates the EU’s decision-making process:
Further, national parliaments have a formally recognized role in EU decision-making. All draft legislation must be shared with national parliaments, and if enough object to a proposal, it must be re-examined. This is referred to as a “yellow card.” Under the UK’s renegotiation deal, enough objections constitute a “red card,” leading to the proposal’s rejection. Additionally, any major changes to the EU, such as new member states or treaties, require approval from all national parliaments.
Policy direction for the EU comes not only from the Commission but also from the European Council. The European Council, composed of the heads of state or government from each member state (e.g., Prime Ministers and Presidents), often guides the Commission’s priorities. When they identify a need for an EU law, the Commission tends to respond swiftly. The Council and Parliament can also request that the Commission propose a new law.
While many EU decisions are made by a qualified majority vote in the Council (requiring 55% of member states representing 65% of the population), there is a strong tradition of seeking consensus. As the graph at the top of this post shows, the UK has voted in favor of 95% of EU laws in recent years.
The EU Treaties grant implementation powers primarily to member states, meaning they are responsible for applying most EU laws within their own countries. However, the Commission has the power to adopt more detailed rules, with oversight from the Member States and the European Parliament, to ensure that the laws are applied consistently across all member states. This mirrors many national systems, including the UK, where the government drafts statutory instruments that can be blocked by the House of Commons or House of Lords.
The EU’s system is undeniably complex, balancing the need for fairness among member states of all sizes. Member states prioritize maintaining control over EU decisions to safeguard their national democracies. Meanwhile, the European Parliament’s increasing legislative, budgetary, and supervisory roles over the past three decades reflect a strengthening of democratic legitimacy at the EU level. It is because the Member States believe that their national interests were, and continue to be, best served by an independent Commission with atypical powers (e.g. the Commission’s monopoly on legislative initiative or its enforcement powers) that the Commission’s role, functions and powers have been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.
To argue that the EU’s system is undemocratic is to fundamentally misunderstand its design. It does not operate on a simple majority rule. Instead, it relies on a highly consensual system where significant decisions require agreement between the Commission, the Parliament, and the member states’ governments within the Council.
Critics often highlight the Commission’s sole right to initiate legislation, implying that laws are passed solely at its behest. However, they often neglect to mention that EU leaders frequently request these proposals, and both the Council and Parliament have the authority to do the same. Furthermore, for any proposal to become law, it must be adopted by both the Council and the Parliament.
The Commission’s annual work programs are developed through ongoing dialogue and consultation with the European Parliament and the Council. For comparison, at the national level, bills are often drafted by civil servants within government departments. In the UK, Private Members’ Bills rarely succeed without government support.
Finally, regarding EU judges, they are often labeled “unelected.” This is true but overlooks that judges in the UK and many other countries are also unelected. Furthermore, the UK holds veto power over the appointment of EU judges, meaning none can assume or retain their position (appointments are reviewed every six years) without the UK government’s approval.
The European Commission
Labeling the European Commission as “unelected” is simply inaccurate. Like many national legislatures, it is indirectly elected, meaning its members are appointed by directly elected officials. The President of the Commission is chosen by the national heads of state or government, all of whom are democratically accountable to their respective member states. This selection considers the results of European Parliament elections. In essence, the choice of Commission President hinges on which party secures the most seats in the European Parliament, mirroring how the UK Prime Minister is chosen based on general election results. (For a visual comparison, refer to the Annex at the end of this post, which depicts the appointment process for both the Commission and the UK government.)
Beginning with the current Commission, which took office in 2014, the process became even more directly linked to voters. The candidates for Commission President are now nominated by European political parties in advance of the European Parliament elections. This allows voters to consider their preference for Commission President during the elections, similar to how they might assess potential Prime Ministers in a UK general election.
This system creates a connection between the votes cast by citizens across the EU in the European Parliament elections and the political leaning of the chosen Commission President. The nominated President must then be approved by a majority of the elected Members of the European Parliament. For those wondering how they can remove a Commission President they disagree with, the answer lies in the ballot box. If you disapprove of the President’s performance and they seek re-election, vote against their party (or any party supporting them).
The remaining members of the Commission, the Commissioners, are each proposed by the elected governments of the member states. This entire group of Commissioners must then be approved through a vote by the European Parliament. Each prospective Commissioner also undergoes individual questioning by the relevant European Parliament committee before the final approval vote.
While voters don’t directly elect the entire Commission, it’s important to remember that the appointment process defers to the member states. Although criticized for not being a democracy, the EU in many ways functions as an international organization. We don’t typically expect international organizations to be democratic in the same way as nation-states. Their accountability stems from the participation of national governments. We don’t “vote for NATO” or “vote for the UN Security Council”; instead, we vote for the governments that represent our interests within those bodies. Similarly, a vote in a British national election influences the political affiliation of the British Commissioner. The current Commissioner is a Conservative, while the previous one was Labour.
Some advocate for the direct election of Commissioners and/or the Commission President. However, the idea of directly electing the Commission President reflects not only a misunderstanding of the Commission’s purpose – it is not meant to function as the EU’s government – but also a lack of understanding regarding how national leaders are appointed. For instance, in parliamentary systems like the UK, there is no direct election for Prime Minister. The Prime Minister is typically an elected Member of Parliament, but they ascend to the role by being the leader of the victorious party in a general election. The UK has also seen instances where an MP becomes Prime Minister without a general election (e.g., Brown, Major, and Callaghan in recent history). In other words, voters aren’t directly choosing the Prime Minister; they are selecting a party, which has pre-selected its leader. This is comparable to the appointment process for the European Commission.
Similarly, national cabinet ministers (comparable to the Commissioners) are not always elected officials. In France, anyone can be appointed as a minister without prior experience in the national Parliament or local assemblies. The UK cabinet can include ministers from the unelected House of Lords. Furthermore, in multi-party systems, unlike two-party systems, the government may not even represent the most popular party due to post-election agreements between parties. The UK’s coalition government from 2010 to 2015 exemplifies this. Given these national examples, the selection and appointment process for the European Commission, overseen by the European Council and Parliament, is arguably as “democratic” and “transparent” as its counterparts in the UK and other member states.
It is worth noting that the European Parliament has the power to dismiss the Commission, similar to a vote of no confidence in the UK’s House of Commons. While this power has never been successfully used, this is not unique to the EU. The power to dismiss a government has waned at the national level due to various factors like fixed election dates, streamlined parliamentary rules, and stronger party discipline. In the UK, for example, there’s only been one instance since World War II of a government being brought down by a no-confidence vote.
The European Union’s institutional framework and decision-making processes are a reflection of its dual legitimacy: it is a union of states and citizens working together to achieve shared objectives. This dual legitimacy is represented in the EU’s structure. The Member States have a voice through the European Council (heads of state or government) and the Council of the European Union (national governments answerable to their parliaments). The European Parliament provides a voice for the citizens through direct elections.
This context helps explain the intricate, consensus-driven system for selecting and appointing the Commission. While some may call for a more “democratic” system, directly mirroring national models could undermine the EU’s legitimacy by disregarding its unique nature as a supranational entity.
While the EU system may appear complex and even counterintuitive to those accustomed to traditional models of democracy, it is ultimately a system that prioritizes consensus and collaboration. This is not to say there isn’t room for improvement in the EU’s democratic processes. However, labeling the EU as an undemocratic “superstate” is simply inaccurate. For all its imperfections, the EU provides a platform for political leadership to address the globalized world’s challenges democratically and effectively. In the spirit of Voltaire, we must remember that striving for the “best” should not lead us to disregard the “good.”
Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)
Annex: Appointing and dismissing the European Commission
