No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament

Heermann, Max; Leuffen, Dirk Article — Published Version No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament JCMS: Journal of Common Market Studies Provided in Cooperation with: John Wiley & Sons Suggested Citation: Heermann, Max; Leuffen, Dirk (2020) : No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament, JCMS: Journal of Common Market Studies, ISSN 1468-5965, Wiley, Hoboken, NJ, Vol. 58, Iss. 4, pp. 1016-1033, https://doi.org/10.1111/jcms.13015 This Version is available at: https://hdl.handle.net/10419/230078 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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Why Differentiated Integration Challenges the Composition of the European Parliament* MAX HEERMANN and DIRK LEUFFEN University of Konstanz, Konstanz, Germany Abstract This article provides a normative assessment of parliamentary representation in fields of differentiated integration in the European Union. Based on three criteria of legitimate democratic representation, autonomy, accountability and equality, we evaluate four alternative representation models. These models comprise (I) complete representation of all members of the European Parliament (MEPs), (II) insider representation through the creation of new, regime-specific assemblies, and (III) partial representation without and (IV) with inclusive deliberative stages. We find that the current system of complete representation, while honouring the principle of equality, violates autonomy and accountability in areas of differentiated integration. We therefore advocate a model of partial representation: MEPs elected in opt-out states should not take part in EP voting but should be invited to participate in the deliberative stages of parliamentary decision-making. This reconciles the principles of autonomy, accountability and equality, at least as long as there is no truly European electoral system in place. Keywords: differentiated integration; institutional choice; European Parliament; European elections; representation Introduction Instances of political crises, disunity among member states and stalling integration in the EU have time and again led scholars and practitioners to argue for or against differentiated integration (DI). Following the Eurozone crisis and the Brexit vote, DI is again high on the political agenda. The European Commission’s‘White Paper on the Future of Europe’acknowledged DI as one potential route forward (European Commission, 2017) and in March 2017, France, Germany, Italy and Spain embraced DI as a viable option for promoting integration during a gathering at Versailles. A European Parliament (EP) resolution adopted in January 2019 stated that ‘the debate […] should not be about pro-differentiation versus anti-differentiation, but the best way to operationalise * The argument underlying this article has previously been presented at a workshop organized by the UACES Collaborative Research Network ‘Differentiated Integration after “Brexit”’, Kristiansand, 22–23 November 2017 as well as at the workshop ‘Logiques de différenciation de l’intégration européenne’organized by the French Political Science Association’s Research Group on the European Union. We thank the participants of both workshops –in particular, Diane Fromage, Katharina Holzinger, Thomas Malang and Frank Schimmelfennig –as well as Hanno Degner and Sven Jochem for helpful comments and suggestions. The article has benefitted tremendously from the critiques and comments expressed by the anonymous reviewers and we thank them for providing helpful inspiration. Work on this article was generously supported by the European Union’s Horizon 2020 research and innovation programm under grant agreement No 822419 (EU3D). JCMS 2020 Volume 58. Number 4. pp. 1016–1033 DOI: 10.1111/jcms.13015 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited. differentiated integration –which is already a political reality –within the EU’s institutional framework‘(European Parliament, 2019). However, these debates have remained remarkably silent with respect to questions of institutional design and democratic legitimacy. Particularly the implications of DI for the EP –which is after all the only directly elected institution of the EU –are often overlooked. One exception is the debate about the future governance of the Economic and Monetary Union (EMU), in which the role of the EP is regularly brought up (Curtin and Fasone, 2017). Addressing this gap in the literature, this article questions the role of the EP in a system of DI and asks: how should the EP participate in and make decisions on differentiated policies, which per definition directly affect only a subset of EU member states? If DI limits the scope of European public policies to a subset of EU member states, how can decisionmaking include members of the EP (MEPs) from the full set of member states? Starting from a demoi-cratic understanding of the EU, we argue that decision-making by all MEPs –while honouring the principle of equality –does not fully respect the democratic principle of autonomy, which foresees a unity between those who govern and those who are being governed. Moreover, MEPs from member states that are not legally bound by DI legislation cannot be held accountable by those subjected to the measures decided. Under the current institutional conditions, DI thus aggravates problems of democratic legitimacy in the EU. We evaluate four models of EP representation in cases of DI, namely (I) complete representation in which the EP decides in its full composition; (II) insider representation through the creation of new assemblies for differentiated policy areas, such as, for example, a Eurozone parliament; (III) partial representation in which MEPs from nonparticipating member states lose their voting rights and are also formally excluded from the preceding deliberations; and (IV) partial representation where MEPs from opt-out states are excluded from voting, but included in the deliberative stages of parliamentary decision-making that precede the formal voting stage. Based on the above-mentioned criteria, we advocate the model of partial representation that foresees exclusive voting rights for MEPs from member states participating in a DI regime, but includes the outsiders in the deliberative stages of decision-making. We end by pointing out that reforming the EP’s electoral system towards transnational constituencies and voting lists could reduce current tensions by backing the idea that the EP truly represents the European demos instead of member state demoi and thereby assure the legitimacy of complete EP representation also in fields of DI. 1 Differentiated Integration in the EU In recent years, DI has moved to the centre stage of EU politics and its analysis. Defining DI as the incongruence between the ‘territorial extension of EU membership and EU rule validity’, Holzinger and Schimmelfennig (2012, p. 292) document the fact that differentiation has not just become a hotly debated topic since the 1970s but has characterized substantive parts of primary law since the 1990s. In addition, Duttle et al. (2017) show that DI has been a prominent feature of secondary law from the very beginning of the European integration project. According to the EUDIFF2 dataset (Duttle et al., 2017), the most comprehensive collection of secondary law differentiation, a yearly average of 16.8 differentiated directives and regulations have been adopted under the co-decision (now ordinary legislative) procedure between 2003 and 2012, with a rising trend over No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament 1 1017 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd time. With a total of 47 legal acts adopted under co-decision, the ‘area of freedom, security and justice’(AFSJ) is the policy domain with the highest absolute number of differentiated laws in this period (see Figure A1and A2 in the online appendix). 1 Today, there is a growing body of empirical work investigating the causes and consequences of DI, with respect to both primary (Adler-Nissen, 2014; Leuffen et al., 2013; Schimmelfennig and Winzen, 2014) and secondary law (Kroll and Leuffen, 2014; Winzen, 2016). The existing literature on the impact of DI has focused mainly on its consequences for the EU’s political system or non-participating states (Kölliker, 2001; Naurin and Lindahl, 2010; Schimmelfennig, 2016). What so far have largely been neglected are the implications for the organs of the EU, the European Commission and –the subject of the present article –the EP (for an early exception, see Ehlermann, 1995). How do these institutions adapt to differentiation? In particular, normative accounts on DI have largely overlooked EU organs. Instead, they discuss the desirability of differentiation either in general (Bellamy, 2019; Dahrendorf, 1979), in relation to the characteristics of policy problems (Lord, 2015) or its effects on non-members (Eriksen, 2018; Fossum, 2015). This has recently begun to change (Piris, 2012; Thym, 2018). The side-lining of the EP in responses to the Euro crisis, especially, has raised questions of the legitimacy of eurozone reforms (Curtin and Fasone, 2017; Fasone, 2014; Rittberger, 2014;). However, most of these contributions have focused explicitly on the role of the EP in EMU governance rather than on its overall position in a ‘system of differentiated integration’(Leuffen et al., 2013). We take up this task with the present article. Legislating Differentiated Policies For the Council of the EU, DI brings no fundamental problems. If a member state opts out from parts of the Treaties, ‘it shall not take part in the adoption by the Council of proposed measures’in those areas. 2 Correspondingly, non-participating member states are not allowed to vote on secondary legislation in enhanced cooperation, even though they may take part in the deliberations preceding the vote (Art. 20 (3), TEU). In short, in the Council, non-participating member states do not have voting rights in differentiated policy areas. In contrast, the EP votes on differentiated policies in its full composition. The opt-out protocols do not assign special procedures for the EP. In enhanced cooperation, the consent of the EP is required, just as it is in the ordinary legislative procedure (Art. 329 (1), TFEU). This means that MEPs from non-participating member states vote on legislation that does not apply to their home countries. This practice results in a mismatch between the territorial scope of EU policies and the composition of the legislature. The mismatch is far from insignificant, as Table 1 illustrates. For example, roughly a third of all MEPs come from member states that so far have not adopted the euro; a significant figure that should be kept in mind when debating to increase EP involvement in EMU governance. The proportion of MEPs who are not subjected to it can be much higher when it comes to secondary law differentiation through enhanced cooperation, as the cases of the divorce rule and the financial transaction tax indicate. In the latter case, 45 per cent of MEPs were from non-participating member states (von Ondarza, 2013, p. 31). 1 These numbers constitute an upper bound of differentiated laws. They include both, acts that are differentiated because of primary law opt-outs, and more specific secondary law differentiations. 2 See, for example, Protocols No 21, Art. 1 and No 22, Art. 1 & 5 of the TEU. Max Heermann and Dirk Leuffen1018 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd In the following, we explain why, from a normative point of view, the discrepancy between the scope of public policies and the composition of the legislature is troubling. Differentiated Integration, Democracy and the European Parliament Rittberger’s (2005) dictum ‘no integration without representation’succinctly sums up the nexus between the deepening of European integration and the strengthening of the EU’s democratic credentials. Designed to provide a compensatory response to the presumed decline of national democracy resulting from the increased pooling and delegation of authority to the European level, the EP has been strengthened to secure the democratic legitimacy of the integration project. To assess whether the EP lives up to this task in the context of DI, we first need to establish the criteria that define legitimate democratic representation. In doing so, we limit ourselves to three core democratic principles identified by the literature, namely autonomy,accountability and equality. These fundamental criteria are directly affected by DI, as we detail below. In contrast, other criteria commonly used for defining democracies, such as the respect for human rights, the separation of powers or the rule of law, are not directly affected by DI because they are neither immediately related to the process of legislating in differentiated policy areas nor to the territorial scope of these policies. Technically speaking, other principles should remain constant across the different models of representation that we compare and, therefore, do not contribute to their ranking. By focusing on the above-mentioned criteria, we do not, however, intend to suggest that we consider other criteria irrelevant for defining democratic governance more generally. Autonomy is a key defining criterion of democracy. It relates to the neo-republican understanding of freedom as non-domination (Pettit, 1997) and is sometimes called collective self-government or self-determination. Autonomy demands that those who are subjected to laws should be authorized to make them (Eriksen and Fossum, 2012, p. 20; Gould, 2018, p. 388). In this sense, the principle is succinctly captured in Abraham Lincoln’s address delivered at the dedication of the Cemetery at Gettysburg, in which he calls for the defence of ‘government of the people, by the people, for the people’(Lincoln, Table 1: Mismatch between policy scope and decision-making structure Number of MEPs from participating states (I) Number of MEPs from non-participating states (II) Ratio (II to all MEPs) % EU 754 0 0 CSDP 741 13 1.7 EU patent 627 127 16.9 AFSJ 656 98 13.0 EMU 481 273 36.2 Divorce rule 465 289 38.3 FTT 412 342 45.3 Source: von Ondarza (2013, p. 31) AFSJ, Area of Freedom, Security and Justice; CSDP, Common Security and Defence Policy; EMU, Economic and Monetary Union; FTT, financial transaction tax. No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament 1 1019 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd 1953, p. 23). Because the coerciveness of law limits the individual autonomy and freedom of citizens (Gould, 2018, p. 388-389f.), democracy requires the unity of citizen and legislator, either in person or through representation. The autonomy principle is conceived to establish congruence between those subjected to and those responsible for political decisions (see Eriksen and Fossum, 2000 p. 21; Scharpf, 1993, p. 167; Zürn, 1996, p. 39). Incongruence, on the other hand, exists when citizens are subjected to decisions that are beyond their control, which would result in a violation of freedom defined as nondomination (Pettit, 2010, p. 140). In representative democracies the actual decision-making is delegated to agents of the people. Building on autonomy, the principle of accountability assures that the will of the people is respected in representative systems (cf. Beetham, 1994, p. 28; Fossum, 2014, p. 53). 3 It is thus a corollary of or an instrument to guarantee autonomy (cf. Eriksen, 2019, p. 138). Accountability requires an institutionalized process in which elected representatives justify their actions to the citizenry and are eventually either dismissed or rewarded through re-election (cf. Bovens, 2007; Eriksen and Fossum, 2012, p. 20). Put simply, ‘democracy […] is inconceivable where [citizens] do not control those who take decisions in their name’(Lord, 2012, p. 40). In addition to electoral sanctions, which can only be enacted on election days, democracy requires a continuous process of accountability, in which representatives have to justify their actions publicly and are, in turn, scrutinized by an active public (Beetham, 1994, p. 29; Lord, 2012). Political equality, in the sense of non-discrimination, is another foundational criterion of democracy (Christiano, 2010; Dworkin, 2000). In democratic states, citizens must enjoy equal political and civil rights. This demand is generally justified with references to natural law and universal human rights (Dahl, 1998, p. 62-63f.; O’Flynn, 2010). Equality is closely linked to autonomy and accountability. As Kröger and Friedrich (2013, p. 174) put it, ‘all those who are bound by collective decisions are entitled to an equal say in their making and in controlling the rulers and the administration’. This includes ‘the equality of votes, an equal right to stand for public office, an equality in the conditions for making one’s voice heard and in treatment at the hands of legislators’(Beetham, 1994, p. 28). Moving from the level of the state to the realm of transnational, multilateral cooperation between democratic states, the equality between these states –and their respective state peoples –comes into play. To protect the autonomy of democratically organized peoples, all states must be equal and retain their sovereignty over the entry to, exit from and the basic rules of the multilateral order (Cheneval, 2011, p. 132). In the EU, member states are represented in the Council while the EP represents individual citizens. The Lisbon Treaty has reinforced this distinction. Article 14(2) of the consolidated Treaty of the European Union states that the EP ‘shall be composed of representatives of the Union’s citizens’, referring explicitly to the concept of EU citizenship. Previously, the Maastricht Treaty used the phrasing ‘shall consist of representatives of the peoples of the States’. This change is remarkable, considering the ongoing debate 3 We focus on the political accountability of elected representatives to the electorate rather than on other forms of accountability in a political system, such as those of the executive to the legislature or of bureaucrats to the government (cf. Beetham, 1994, p. 29; Bovens, 2007). Max Heermann and Dirk Leuffen1020 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd as to whether there is or can be a European demos that the EP can claim to represent. Moreover, the EP’s electoral system remains rooted in the member states. Electoral laws are barely harmonized 4 and degressive proportionality leads to an overrepresentation of smaller states and their citizens. The distribution of seats thus trades off the equality of votes against safeguarding an equal opportunity to be represented for citizens from smaller member states as well, reflecting a ‘dual legitimacy’of the EP ‘based on both citizens and states’(Kröger and Friedrich, 2013, p. 178; see also Lord and Pollak, 2013, p. 199). The German Constitutional Court, for example, has argued in its Lisbon ruling that the arrangement reflects a representation of peoples –or demoi –rather than of a single European demos, irrespective of other normative claims in the Treaties (Lord and Pollak, 2013). In line with this reading, Bellamy (2019, p. 129) argues that the EP can ‘also be conceived as an institutional embodiment of European demoicracy’. 5 The EP should thus allow for a dual equality –a principled equality of the demoi and of European citizens embodied by their representatives. In the case of uniform integration, the three criteria of autonomy, accountability and equality do not conflict with one another. However, if DI limits the territorial validity of EU rules, EU citizens are affected differently depending on their place of residence. If citizens are unequally bound by collective decisions, should they have the same entitlement to make these decisions? Based on the above, we consider it problematic that an MEP decides on a bill if firstly, said bill does not apply to the MEP and their constituency, and secondly, if there is no mechanism through which those actually affected could hold the MEP accountable. Equal participation in decision-making by all MEPs thus harms the principles of autonomy and accountability. 2 Four Models of Representation in DI Policy Areas In this section, we present four different models of transnational representation in differentiated policy areas (Table 2). The first scenario depicts the status quo in which the EP decides on differentiated matters in its full composition. The second option foresees the creation of new assemblies for differentiated policy regimes. Scenarios three and four introduce policy-specific differentiation between MEPs within the EP according to whether their electoral home state takes part in the policy concerned or not. Two alternatives can be distinguished: the ‘opt-out MEPs’could be excluded from the entire legislative process or they could be invited to participate in the legislative deliberations up to the final vote, from which they would then be excluded. Each of the four models meets the criteria of equality, autonomy and accountability to a different degree. In particular, by placing different weight on the equality principle, the models take different stances towards the debate about the existence and possibility of an indivisible European demos composed of equal European citizens. 4 EP electoral laws vary across member states in terms of the openness of voting lists, the threshold and the system for counting votes and allocating seats, the number of constituencies and the minimum age for voting and standing in elections (European Parliament, 2014). 5 The EP usually plays a minor role in theories of demoi-cracy, which focus on the involvement of the national demoi via national parliaments (see Cheneval et al., 2015). No Representation without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament 1 1021 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd The Status Quo: Keeping the EP ‘une et indivisible’ According to the legal status quo, the EP decides on differentiated policies in its full composition. Every MEP may take part in voting, even if the member state in which they were elected is not bound by the policy concerned. The equality of MEPs is at the heart of Curtin and Fasone’s (2017) forceful defence of this model. They argue that restricting voting rights to MEPs from member states participating in a differentiated regime would create ‘second-order MEPs and implicitly recognize second-order European citizens represented in the EP’. Stripping individual MEPs of their voting rights would violate the principle of equality, leading to the ‘demise of the EP as a parliamentary assembly’ (Curtin and Fasone, 2017, p. 130). Differentiation among MEPs could be considered a retrograde step as MEPs would be conceived as national delegates instead of being representatives of all EU citizens, as foreseen by the Lisbon Treaty. By duplicating the logic of territorial representation, such a reform would negatively impact the statics of the EU’s institutional architecture as the EP would essentially fulfil the same representative function as the Council of Ministers (Curtin and Fasone, 2017, p. 140). This would not just harm the Parliament’s symbolic function as the Parliament of the European citizenry but also impair the EU’s legitimacy more generally. A strong, unified EP is generally seen as the key institution to legitimize a supranational political union (see Fabbrini, 2015). For European federalists in particular, any reforms towards more intra-institutional differentiation would harm further development towards a supranational parliamentary democracy. It is therefore unsurprising that the EP itself has rejected any internal differentiation or asymmetric participation by MEPs in differentiated policies (Curtin and Fasone, 2017, p. 119). From the political union perspective, DI is understood only as a momentary setback on the path to an ever closer union, mirroring the concept of a multi-speed Europe in which member states may integrate at different speeds but, eventually, will all reach the same level of integration. As in such a reading the legislation will eventually apply to all EU citizens, a uniform participation of MEPs in decision-making is not only normatively appealing but also practically useful. The inclusion of MEPs from non-participating member states could facilitate policy learning among insiders and outsiders (Curtin and Fasone, 2017). Table 2: Four models of parliamentary representation in differentiated integration (DI) Full EP New DI Assemblies Partial EP I Partial EP II Proposed rules Voting All MEPs Ass. members Only DI MEPs Only DI MEPs Deliberation All MEPs Ass. members Only DI MEPs All MEPs Democratic principles Autonomy +++ Accountability +++ Equality + /+ Implications Aspired representation EU demos MS demoi MS demoi Mixed DI model multiple speed Multiple unions Concentric circles Unspecified +, yes; -, no; Ass, assembly; EP, European Parliament; MEP, member of the European Parliament; MS, member states. Max Heermann and Dirk Leuffen1022 © 2020 The Authors. JCMS: Journal of Common Market Studies published by University Association for Contemporary European Studies and John Wiley & Sons Ltd Spill-over effects are yet another factor to consider: DI creates externalities affecting the non-participating member states (Schimmelfennig, 2016). If citizens from nonparticipating member states are affected by DI decisions, wouldn’t it be natural to include their MEPs in the decision-making process, if only to mitigate potential negative externalities (Curtin and Fasone, 2017, p. 128)? Curtin and Fasone (2017) maintain that the concerns with DI may be accommodated through informal norms or some minimal changes in the EP’s rules of procedure. Differentiation could be taken into account when allocating offices such as committee chairs and rapporteurships. Von Ondarza (2013, p. 32) demonstrates that this is, in fact, already the case. 6 Moreover, the empirical observation that coalition formation and voting behaviour in the EP follow ideological and not necessarily national patterns (Hix et al., 2007) lends some support for the current system of equal voting rights of all MEPs, regardless of whether the electoral home country participates in a differentiated policy regime. While those are solid arguments backing unified EP participation in DI, there are nevertheless severe difficulties. Most importantly, we maintain –as argued above –that this model, while attempting to safeguard the equality of MEPs and their voters, violates the principles of accountability and autonomy. Autonomy is violated because the MEPs from opt-out states and the voters they represent are not themselves bound by the decisions they make. By not honouring the ‘all-subjected principle’(Gould, 2018), the full EP scenario risks inserting domination into the system. The principle of accountability is violated because MEPs from non-participating member states cannot be held accountable by the voters who are directly subjected to their decisions. Below we provide empirical evidence for the persistence of demoi-specific patterns of representation and possible policy impacts entailed thereby. In practise, European elections currently fail to provide an effective mechanism of accountability. They remain largely second-order elections. Campaigning takes place in the member states, is organized by national parties and features predominantly domestic issues. Many voters take the opportunity to punish their national governments (Hix and Marsh, 2011). The dominance of national parties in the European elections also affects the parliamentary behaviour of MEPs once elected. MEPs are agents of two principals, their national party and their transnational parliamentary group (Hix et al. 2007, p. 133). While the EP group controls the distribution of parliamentary offices, MEPs depend on their national parties for re-election (or a future career in domestic politics). The inherent conflict of which principal to follow is obscured by the high levels of consensus between EP groups and national parties (Hix et al. 2007, p. 137). In fact, if the position of an MEP’s national party diverges from those of the transnational group, the MEP is more likely to vote with their national party (Hix et al. 2007, p. 138). Disloyalty to the parliamentary group also increases in proximity to elections, underlying the importance of national parties for the career prospects of MEPs (Koop et al., 2018). Moreover, Scully et al.’s (2012, p. 678) survey data shows that 40 per cent of the variance in MEPs’policy positions can be explained by their nationality. In contrast, according to their findings, EP group affiliation only explains 15 per cent (with 45% explained by 6 A comparable example of how differentiation can be accommodated by informal norms is the practice of the Scottish National Party, which, in the UK House of Commons, followed a policy of not voting on legislation that applies only to England (Bogdanor, 2010, p. 161). No Representation without Integration! 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