ABSTRACT: The institutional system of the European Community does not respect the fundamental principles on which political democracy is historically based. Description of the way the European Community functions at an institutional and political level. (For the United States of Europe, edited by Roberto Cicciomessere, Gianfranco Dell'Alba, Gianfranco Spadaccia - Supplement to Notizie Radicali n.68 of 5 April 1988) @sommario

If a country having the same institutional structure as the European Community asked to enter the European Community itself, it would certainly be rejected for lack of democracy. This paradox could summarize that which is called the democratic deficit of the Community. It is a fact that the institutional system of the Community does not respect those fundamental principles on which political democracy is historically based: the separation of the legislative, executive and control powers into different organs; the attribution of power on the part of the people. Democracy implies, moreover, that the decisional processes be public and subjected to control, and that the rights of the minorities be respected. In the Community the Council (1), consisting of members of the governments of the member states, detains the legislative power and the power of global orientation, which is more and more becoming a real executive power, and is not subjected, as a community institution, to any concrete control on the part of

national parliaments. Such national controls, when enforced, cannot go beyond the member of each government. And the control on only one member of the Council has a limited effect in the case of a majority vote. These absolute, unrestrained powers, more often than not exerted in the uttermost secrecy (the European Parliament cannot even know which representatives of which countries have expressed their opinion against an amendment proposal, for example) are enforced by the Council on a range of issues (2) which, before being transferred to the European Community, belonged to the sovereignty of the member states. And they are legislative decisions (3) which, as far as regulations are concerned, have immediate effect on all the member states of the Community, regardless of the internal legislation of each country. As a matter of fact, the Court (4) has stated that the regulations are immmediately effective and need no adapting procedures on the part of the member states, where in which they are granted, in the

hierarchy of the sources, a higher value than the internal norms. These same regulations are not even subjected to the opinion of the Italian Constitutional Court, and Italian magistrates are compelled to apply them directly. In the fields for which the sole jurisdiction of the European Community is applied, the national legislator is deprived of any power. As a matter of fact, the states are often sentenced by the Court of Justice when they do not adapt their legislations to Community law. Therefore, if previously the power of the national governments on issues which have now become the competence of the Community was counteracted by the legislative powers and the orientation and control powers of the national parliaments, today these same decisions are taken secretely during the meetings of the ministers or bureaucrats of the member states gathered in the Council. The European Parliament (5), in spite of the fact that it is elected by universal suffrage, and therefore being the legitimate expression of th

e will of the people, has no legislative or control power, and does not even have the power of granting confidence to that which in in theory represents the executive organ of the Community, that is the Commission (6). Even the right of co-decision, endowed on Parliament for certain issues such as budget, is in fact made useless by the whole system that gives the Council the faculty to take the last decision.

This system, which points to a serious unbalance between the institutions, and which involves a complex decisional procedure, not only does not comply with the requirements of being fully democratic, but is also inefficient. The Council in fact is slow, and more often than not proves to be incapable of deciding on essential legislative provisions for the creation of the single market, which, according to the Single Act, should be achieved within the 31st of December 1992. Hundreds of directives and rules aimed at drawing national legislations closer on financial, fiscal and banking issues etc, must still be passed, thus jeopardizing the possibility of the single market being achieved within December 1992.

The European council (7) is charged with tasks which do not belong to it, because of the incapability of the Council of Ministers and of the Councils specialized in the different issues of the competence of the Community issues to take a decision.

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(1) The Council, consisting in 12 representatives, one for each member state, is the decisional organ of the Community. It detains practically all powers: power of initiative, legislative powers, powers of control on the Commission (see note n. 6), as well as the power to appoint members of other organs. Each member state detains the chairmanship of the Council and of the organs that depend from it at turns, for a period of six months. Above the Council there is the Conference of the Heads of State and government, which meets under the name of European Council. More and more often the European Council, which should discuss the major general problems concerning the development of the Community, replaces the Council of Ministers even in issues which are of specific competence of the latter. The last European Council in Brussels dealing with agricultural prices, dairy shares and budget, is evidence enough. The Council of Ministers is in fact more and more often paralyzed by its incapacity of representing the in

terests of the Community, owing to the fact that it is forced to deal with national interests. The European Council must not be mistaken with the Council of Europe (see note n.7).

(2) The Treaties which establish the European Communities have granted the latter legislative faculties on the following issues: EEC Treaty (European Economic Community) - 1957)

- the establishment of a common customs rate;

- the establishment of an internal market;

- the establishment of a common policy in the agricultural field; - the establishment of a common policy in the transportation field; - the enforcement of measures ensuring the free circulation of people, services and capitals; - the adoption of a system ensuring free competition;

- the adoption of common and converging measures in the social sphere; - the coordination of the economic policies of the member states; - a common trade policy;

the creation of independant resources;

Single Act (1985)

- the adoption of measures aimed at corroborating the scientific and technological bases of European industry; - measures aimed at protecting the environment;

Euratom Treaty (CEEA - European Community for Atomic Energy - 1957) - the development of research and the diffusion of technological knowledge; - establishing uniformed security norms;

- measures aimed at facilitating the establishment of nuclear energy plants; - measures aimed at ensuring the supply of minerals and nuclear combustibles; - control measures on the use of nuclear matter;

- the exercise of the right of property for fossil material; - conclusion of external agreements;

CECA Treaty (European Community for Coal and Steel - 1951) - measures concerning the regular supply of the market;

- measures concerning equal access of the users to the productive sources; - price control;

- measures concerning the rational exploitation of the resources; - measures concerning the improvement of life and work conditions; - measures concerning international exchanges.

(3) The legislative acts of the community are:

Regulations and Decisions, which are immediately effective in the member states;

Recommendations and Directives which must be carried out by the single member states with legislative or regular acts.

(4) The Court of Justice ensures the respect of the law in the interpretation and in the application of the Treaties. In particular it is competent on the following issues:

- controversies between member states;

- controversies between EEC and member states;

- controversies between the Community institutions;

- controversies between individuals and Community;

- opinions on international agreements;

- prejudicial decisions in the case of unsolved controversies in national jurisdictions and remitted from the latter to the Court of Justice. The Court is made up of 13 judges and 6 general lawyers, appointed upon common agreement for 6 years by the governments of the member states.

(5) Officially speaking the European Parliament has the following powers: - control powers on the Commission and the Council and particularly censorship power on the Commission; - the power of taking part in the legislative process of the European Community: - powers on budgetary issues of the Community;

In actual fact however, the control powers are restricted to questions addressed at the Commission and the Council, and the possibility of passing, with a majority of three quarters, a censorship motion concerning the Commission. The powers of participation to the legislative process are limited to the right of being consulted. The last decision is in any case taken by the Council, that can, at its own discretion, accept or not accept the proposals of rectifications of the legislative provisions or the opinions of the European Parliament. As for the powers on budgetary issues, they are basically limited to non compulsory expenditures, that is, to a very limited part of the Community's budget and in any case within the yearly increase rate laid down by the Council. The European Parliament has only one negative power, which is that of refusing as such the budget presented by the Council, which would then have to develop a new project. As far as the practical effects are concerned, this power as well has only a

weak influence on the major budgetary figures, both for income and for expenditure, which are decided by the member states. The only concrete power is that of giving an opinion which is decisive for the entry of a new state in the Community and for the agreements of association and cooperation between the Community and other states. The European Parliament, which remains in force 5 years, is elected by direct universal suffrage. The 518 seats are thus divided:

81 for France, Federal Republic of Germany, Italy and United Kingdom; 60 for Spain;

25 for The Netherlands;

24 for Belgium, Greece and Portugal;

16 for Denmark;

15 for Ireland and 6 for Luxembourg.

In spite of the fact that the Treaties compel the governments to establish a single seat for the institutions of the Community, at the moment the places in which the European Parliament operates are 3: Strasbourg for plenary sessions which are held in average once a month, as well as an additional session for the budgetary procedure; Brussels for the meeting of the Commission; Luxembourg for the administrative offices of the Parliament. Such a working organization involves, as may easily be imagined, a triplication of the costs of the function of the European Parliament.

(6) The commission has powers of initiative, control, and executive powers. In theory and officially it is an organ independent from the national governments, which should represent the unitary element of the Community phenomenon, whereas the Council represents the inter-governmental element. But in fact the decisional center of the community has remained firmly in the hands of the Council. Consisting of 17 people appointed by the member states, the commission is made of 2 members each for France, United Kingdom, Italy, Federal Republic of Germany and Spain, and by one member each for Belgium, Denamrk, Greece, Ireland, Luxembourg, Netherlands and Portugal. Each commissioner is appointed to a specific field: e.g. Agriculture, Budget, Environment, etc.

(7) The European Council must not be mistaken with the Council of Europe. The latter institution, established with the London agreement of May 1949, has 21 member states: Federal Republic of Germany, Austria, Belgium, Cyprus, Denmark, France, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, United Kingdom, Switzerland, Turkey, Greece, Portugal, Spain, Liechtenstein and, as observers, Israel and San Marino. Its aims are to achieve a closer union among its members. But in fact it has not achieved this aim, and has turned rather into an organ for the elaboration of important conventions. The best known is the convention for the safeguard of the rights of mankind and fundamental freedoms, signed in Rome in April 1950. The respect of this convention is guaranteed by the Commission for human rights and the Court for human rights. Subsequent treaties have established individual petition in the case of a violation of the convention. The petition is first examined by the Commission for human rights and, if dec

lared groundless, is remitted to the Court for human rights or to the Committee of Ministers. The Committee of Ministers is one of the three organs of the Council of Europe. It consists of 21 ministers for foreign affairs of the member states. The second organ is the parliamentary Assembly which is made of 160 members, appointed by the legislative asssemblies of the member states among national members of parliaments. The Assembly approves, with a majority of two thirds, recommendations addressed at the Committee of ministers or decisions addressed at other institutions. The third organ is the general secretariat.