LLM in European law at London School of Economics
Anti-EU politicians often criticise the European Commission (Commission) because the College of Commissioners is not directly elected. Cliché anti-EU phrases such as the ‘unelected President of the Commission’ or the ‘faceless bureaucrats in Brussels’ are repeated to show the alleged lack of democratic credentials of the European Union. However, when these claims are confronted with the evidence and the rationale of the EU institutions their lack of substance becomes evident. Some of the ideas expressed here are borrowed from Fritz Scharpf’s theory of output and input legitimacy.
When the institutions of a modern State are analysed, it is common to find entities that play a meaningful role for society but their top officials are not directly elected. These entities are intentionally shielded from the people’s vote considering their technocratic character. Some examples include central banks or market regulators (i.e. technocratic bodies in charge of gas, electricity or telecommunications markets).
Elected officials such as Members of Parliament (MEPs) or the Head of Government (eventually it may also include officials selected by the latter) are entitled to appoint the directors of technocratic bodies. A second stage involves supervising their actions and reviewing if they have achieved their goals.
The role performed by these entities require highly technical skills. Not only the electorate but also politicians themselves are ill-equipped to achieve the socially desirable outcome. It would rather be more efficient to appoint a group of experts with sufficient knowledge and skills. For this reason, it would not make sense to decide their appointment through an electoral process. For example, would someone consider reasonable to have an election for the Governor of the Bank of England? What about the head of the competition authority or the electricity regulator? Asking such questions to the electorate would be unnecessary and unfair. Another reason not to elect technocratic officials is to shield their decisions from the turbulence of an electoral process. Ultimately preventing the dangerous mixture of technocratic decisions and promises from a political campaign.
The actions performed by technocratic entities are supervised by directly elected bodies. Elected officials directly supervise their performance and assess results. For example, it is fairly common to watch news reports where MEPs question the performance of the Bank of England. Other cases include recommendations issued by the UK’s Parliament on competition policy. These reports are used to indirectly review the performance of the institutions and to generate public awareness in a specific subject. Furthermore, particular actions from technocratic bodies affecting third party rights are subject to judicial review. Decisions from market regulators (i.e. the Office of Gas and Electricity Markets) can be challenged before judicial entities. Technocratic entities remain accountable to elected bodies and to judicial review performed by the courts.
The Commission is a technocratic entity. Its remit is broad but most experts would agree that its most important role is to develop and protect the EU’s single market. The President of the Commission and the College of Commissioners are not directly elected by the EU citizens but are appointed by democratically elected bodies, the EP and the European Council (i.e. the council of the Heads of State or Government of every EU Member State). This also disproves the claim related to the ‘faceless’ character of its officials. It is hard to argue that someone whose appointment is scrutinised by two different EU institutions is ‘faceless’ or unknown.
During its tenure, the College of Commissioners remains accountable to the EP. According to the EP’s website between January and mid-April this year, the MEPs addressed around 2,000 questions to the Commission in different areas. The supervision powers of the EP also encompass voting on the removal of the College of Commissioners in extreme circumstances. A removal has never been approved but the potential use of this mechanism has so far proved effective. In 1999, following malpractice allegations, the Santer Commission decided to resign before facing an impeachment vote. The Commission’s decisions can also be challenged by third parties before the Court of Justice of the European Union (CJEU). The CJEU has the authority to review and decide on cases involving misuse of powers or contravention of the law.
As mentioned before, the most crucial task of the Commission is to develop the EU’s internal market. This is one of the outcomes it must deliver to benefit EU citizens. Developing the single market includes several areas such as financial instruments regulation, integrating the telecommunications market and ensuring the free flow of workers across the EU, among others. It would not make sense to ask the electorate on these subjects. The interaction between elected bodies and technocratic institutions makes EU citizens better-off.
Sceptically interrogating and questioning the nature of things, particularly political institutions is something that should always be welcomed and appreciated. However, this becomes problematic and dangerous when conclusions are based on superficial evidence or no evidence at all. Some anti-EU politicians (I refused to use the word Eurosceptic as this could cause harm to the wonderful scientific virtue of scepticism) have turned the debate into a ‘pub talk’. Their superficial and passionate discourse provides little food for thought but only criticism based on ideology. Mainly through the rehearsal of arguments based on nationalism rather than evidence. Unfortunately for them their own passions and desires cannot trump the evidence.