Majone, Giandomenico. "Europe’s 'Democratic Deficit': the Question of Standards". European Law Journal, Vol.4, No.1 (1998): 5-28.

Majone, Giandomenico. "Europe’s 'Democratic Deficit': the Question of Standards". European Law Journal, Vol.4, No.1 (1998): 5-28.

• The author asserts that the democracy of the EU is being assessed based on invalid criteria that do not respect its uniqueness. These eurosceptic critiques of democratic deficit either apply:
• Comparisons between the EU and national institutions, by claiming that the EU should meet standards of democracy applied to national bodies, like the belief that the EU Parliament should have legislative powers (6);
• Majoritarian standards that apply abstract concepts of democracy to the EU on the belief that direct representation of individuals in elections is legitimate and that therefore European Parliament should be the seat of power (6);
• The idea that legitimacy is derived from the national democracies of the EU, and that therefore voting processes should be made unanimous out of respect for the democratic standards of individual nations (6);
• Social standards of legitimacy which say that any political legitimacy derives from an ability to supply economic and social well-being to the population, which the EU has failed to do following the Euro Crisis (7).
• Typical arguments about the democratic deficit in the EU have focused on two factors of illegitimacy: the fact that the executive branch of the Commission is responsible for legislation, and the weakness of the national Council of Ministers compared to the unelected executive Commission (7).
• "Because of the supremacy of European law over national law, the governments of the Member States, meeting in the Council, can control their own parliaments rather than being controlled by them" (7).
• Since the Maastricht Treaty of 1992, the EU has been unable to expand its own competency as it was previously, depending on changes in core treaty legislation passed by member states for this purpose. Now new powers can only be granted to the EU through treaties requiring unanimous national approval (9).
• Whereas the Commission had used the Treaty of Rome to massively expand its competencies since 1973 by exploiting the vague references to policies related to closer economic cooperation, the Maastricht Treaty severely limits the scope of interpretation and closes the realm of EU competency (9).
• The idea that democracy should be majoritarian and that only these systems are democratic is fundamentally flawed, as almost all democratic states have independent courts, central banks, and federalized governments which strongly resist majoritarian democracy through systems of checks and balances (11).
• The EU is too plural and divided a community to apply majoritarian standards, as it would override the democratic rights of smaller minority states and exacerbate tensions along numerous cleavages (11).
• German courts in the past have based their belief in the constitutionality and legitimacy of the EU on the fundamentally national basis of its structure derived from the democracies of national states who elect to sign treaties, which they can then freely leave (12).
• The legal system of the EU, however, goes entirely contrary to this point and the European Court of Justice has often sought to rule against the laws and rights of member states in favor of protecting the rights of European citizens in general (12-13).
• The idea that Europe would build a common welfare policy, or that these system would be supported democratically, is not currently feasible. Not only do all EU member states oppose this idea, and have explicitly kept these matters outside of EU competence, but the majority of EU citizens also oppose the concept (13-14).
• Inter-governmentalism as a system of organization automatically becomes undemocratic if measured against assumptions of direct democratic selection of legislators, meaning that some democratic deficit must remain in the EU if member states are not entirely willing to surrender sovereignty (14).
• Other forms of democratic deficit, such as technocratic decision-making, lack of transparency, insufficient public participation,  excessive use of administrative discretion, and inadequate mechanisms of control and accountability, are essential features of non-majoritarian institutions and are also present in regulatory bodies, like central banks, at the national level (15).
• The author argues that the delegation of political powers to regulatory and independent institutions like the European Central Bank is necessary in the EU because of the lack of credibility that policy-makers have domestically and especially the lack of credibility that foreign policy-makers have. In this situation, having a non-democratic regulatory body make decisions is preferable to a multinational legislative body (17-18).
• The author provides an example of why regulatory bodies may be introduced, providing a case study of the United States from page 18 to page 20.
• The legitimacy of regulatory institutions comes from two potential sources, a procedural one and a substantive one. Procedural legitimacy stems from institutions being democratically created, accountable to the judiciary, and run in accordance with clear procedures (20), where substantive legitimacy is the ability to the regulator to actual serve their purpose in a fair manner that democratic institutions could not (21, 23).
• European law does follow a number of points that try to imbue it with procedural legitimacy, namely through the requirement that all decisions be justified and subject to judicial review (21). At the same time, there are many overlapping institutions, which creates a lack of transparency and undermines procedural legitimacy (22).
• There are many arguments to be made that institutions run by the Commission, and the Central Bank, serve purposes not fulfilled elsewhere (23), but they also face severe accountability issues that are not necessarily justified. In particular, changing the function of the Central Bank is an onerous process requiring unanimous vote (24).
• All European regulatory agencies, except the Central Bank, must submit their decisions to the European Commission for approval, a decision then approved by the Council of Ministers and European Parliament, meaning that some checks and balances do exist over EU regulatory agencies (26).
• " The important issue for democratic theory is to specify which tasks may be legitimately delegated to institutions insulated from the political process, and which areas should remain under the direct control of the political principals" (28).
• "Member States that are negatively affected by a collective decision, [...] are generally compensated in some way. This possibility of separating the two stages of decision-making – problem-solving, and bargaining over the distribution of the gains – is not the least advantage of having a supranational level of governance. As long as the tasks assigned to this level are precisely and narrowly defined, non-majoritarian sources of legitimacy – expertise, procedural rationality, transparency, accountability by results – should be sufficient to justify the delegation of the necessary powers" (28).