Democratic Control of European Foreign Policy

I. Bases

A. The Concept of a European Foreign Policy

The European Community's extensive legislative and policy-making powers are not confined to the Community's internal affairs. The Community is empowered and in a position to maintain relations with non-member countries and international organizations as well. It is a subject of international law. Several Treaty objectives provide expressly for such external activities.²

The forms of the Community's activities in the field of foreign policy do not differ fundamentally from the instruments at the disposal of other subjects of international law, from the conclusion of multilateral treaties governed by international law to the autonomous expression of political principles.

European foreign policy cannot, however, be reduced to the activities exclusively attributable to the Community institutions. From the substantive and procedural viewpoint it is closely interlinked with the foreign policy pursued by the Member States individually or collectively. The Single European Act³ is designed to enable planned coordination of these different sources for a single European foreign policy. In the area of legal acts, specific aspects of foreign policy were in the past coordinated by the use of the `mixed agreement' in which the Community and its Member States were simultaneously contracting parties to those with non-member countries.⁴

In this context, `European foreign policy' means treaty-based and autonomous legal acts and other measures emanating from the European Community and/or its Member States as a whole and intended to or capable of producing effects outside the Community.⁵

B. Democratic Control as an Aspect of Constitutional Law

1. Control

Control of the acts of an organization covers a multitude of subjects, types of acts, and procedures. It can be internal to the organization or also include external controls. It may consist of scrutinizing the compatibility of acts of the organization or its individual institutions with overriding provisions, especially those of the organization's constitution (judicial review). In addition, one institution may have powers of sanction vis-à-vis another institution which in practice results in rights to obtain information and indirectly to control over the acts of that institution. Control may be restricted to reconstruction or review of acts. It may also include the grant of powers of rectification and the right to issue directives by means of which an institution exercises joint decision-making powers or the right to have the last say. The concept of control is used here in a wide sense to include both supervision and control.⁶

Control of the external acts of an organization can cover the following:

- the substance and implementation of treaties governed by international law entered into by the organization;

- the substance and implementation of autonomous measures adopted by the organization;

- the formulation and enforcement of foreign policy principles;

- membership of other international organizations and participation in conferences;

- the conduct of bilateral and multilateral relations.

2. Democracy

Democratic control mechanisms are those which implement the characteristic principles of democratic systems. These consist first and foremost of the right of supervision and control exercised by an elected parliament, supplemented by procedures ensuring separation and limitation of powers, the legality of acts of the institution, and transparency and efficiency.⁷

C. Foreign Policy and Democratic Principles of the

European Community

1. General

One of the fundamental and now formal requirements for membership in the European Community is observance of the `principles of democracy',<sup>8</sup> democracy being understood as `parliamentary democracy'.⁹ This means first of all the legislative power of a parliament elected by free, secret elections.¹⁰ Democracy is not, however, a formal concept which can be restricted to individual aspects of sovereignty; it includes the control and supervision of the exercise of power. A democratic constitution is distinguished by the fact that it has at its disposal mechanisms binding all exercise of power on behalf or with the support of the organization to the consent of those affected or at any rate to their control.

This includes the `institutionalization' of the exercise of power and the restriction, as regards time and nature, of individually granted negotiating powers. These objectives are achieved chiefly by assigning different roles to the institutions (separation of powers), by instituting checks and balances between the institutions and external control due to the public, transparent nature of decision-making procedures. In the interests of self-preservation, a democratic system also requires institutional arrangements enabling it to base its practical action on previously defined principles, in other words, to act purposively and thus efficiently. This is, inter alia, a justification for the principle of majority rule.

The balance necessary in each case between the consent of those affected on the one hand, and control of the power and efficiency of the system, on the other, can be reached in various ways and by various means. However, the principle of democracy applies overall. This means that particular areas of action, for example, foreign policy, cannot be made exempt in principle from the democratic legitimacy and control, one reason being that the internal and external acts of an organization or state are interlinked and cannot therefore be separated.

Above all, however, the two essential material objectives of foreign policy, to safeguard the existence of the system on the internal level and to enunciate principles on the external level, require constant direct legitimacy, which can be derived only from the consent of the governed. Without any parliamentary control or supervision, the system's foreign policy is not sufficiently legitimate, thus endangering its stability.

Eighteenth and nineteenth-century European constitutional theory did not share this broad concept of democracy. The power to conduct foreign policy was regarded as belonging to the executive power to be exercised by the monarchy.¹¹ Despite the model of the combined action of the Senate and President developed by Hamilton and Jay for the United States Constitution,¹² European national constitutions were slow to involve parliaments in the shaping of foreign policy.¹³

The case-law of the German Federal Constitutional Court, which is described as being favourable to the executive authority and according to which the Bundestag only has foreign policy powers where the constitution has expressly conferred the subject-matter and content of such powers on parliament, is characteristic of the reserve which can still be seen in this day and age.¹⁴ This view is no longer justified by reference to the rights reserved to the monarch but by the need for efficiency and consistency in foreign policy decision-making.

It is true that at first sight the fact that various institutions take part in the formulation and enunciation of foreign policy positions seems to constitute an obstacle to the clarity and feasibility, in other words, the efficiency, of foreign policy. However, complex systems such as the European Community can only formulate permanent objectives if the complexity of the situation is accounted for and incorporated in the decision-making process by means of a correspondingly specialized institutional system. In foreign policy matters, political consistency is often merely a fiction. The scope for change in foreign policy drawn up in legal instruments or formulated only at political level is one of the built-in factors in every political act. The more a political system allows of institutionalized formulation of varying options for the conduct of foreign policy, the more precisely can the importance of specific measures and attitudes be gauged, so that the range of variation itself becomes a factor in foreign policy which enhances its dependability and thus its authority overall.

One of the building blocks of democratic systems is the scope for alternative action and thought. As regards domestic policy, this is institutionally enshrined in the constitutions of democratic European states (the possibility of amending draft legislation, regular elections etc.). As far as foreign policy is concerned, this only applies to a limited extent. In general this is justified by the special conditions surrounding foreign policy, which would allegedly preclude, to a large extent, its being made subject to parliamentary procedures.¹⁵ The example of the combined action of the United States President and Senate shows, nevertheless, that it is perfectly possible for institutional changes to be made in the procedures for shaping foreign policy to enable parliament to participate. The efficiency of the conduct of foreign policy does not seem to be appreciably lessened provided that mechanisms exist which clearly determine the importance of the action of each institution for the organization as a whole and, in particular, enable coordination of the action of the various institutions in creating legally binding acts.

The specific capacity of action of institutions varies, however, on the basis of objective operating conditions, for example, the number of members. If these differences are taken into account when conferring powers on the institutions, each institution can represent, even in foreign affairs, an intrinsic value in their respective constitutional system. A parliament's main contribution to the shaping of foreign policy should therefore not be in matters requiring finesse, for example the negotiation of treaties. Nevertheless, it would be premature to deny a parliament on principle the power to negotiate treaties or to take other foreign policy measures. Even a parliament could entrust such tasks to a small group of people by means of internal specialization and make the outcome of negotiations subject to approval by the whole body. The foreign policy activities of governments can be regarded as an institutionalized specialization of this kind. The particular contribution of parliaments to the control and supervision of foreign policy lies, on the other hand, in the formulation of principles, the approval or rejection of the outcome of negotiations, and the monitoring of the activities of the executive.

In contrast to the policy making system within a state, democracy within the institutional structure and foreign policy making process of the EC suffers from a inter-institutional conflicts as well as from the tradition of autonomous foreign policy of the Member States.¹⁶ Nor does the European Community's foreign policy require control to be concentrated in one institution by virtue of the existence of similar majorities in the various institutions. On the contrary, since Community foreign relations, unlike national foreign relations, are not based on stage-by-stage agreement on a set of principles operating internally and represented externally, the demands placed on the capacity of the Community's institutional system to legitimate its foreign policy are appreciably greater.

As long as it is ensured that as many options as possible can be expressed during the policy formulation procedure and that that procedure enables a choice to be made between those options, the involvement of the various institutions, especially extensive cooperation on the part of the elected parliament, increases the legitimacy and thus in the long term the acceptance, both internally and externally, of foreign policy positions, which is a requirement of their feasibility.

2. Control of European Foreign Policy Outside the European Parliament

Accordingly, although it seems unjustified either on grounds of efficiency or of democratic theory to deny the European Parliament the power to control European foreign policy, such a power by itself is insufficient to fulfil the demands of a developed democratic system. Two features in particular required for democratic policy-shaping are a restriction on the powers of action of the various institutions and reciprocal checks and balances.¹⁷ With this in mind, the Community's treaty-based foreign relations are subject to review by the Court of Justice of the European Communities in the context of opinions pursuant to the second sub-paragraph of Article 228(1) of the EEC Treaty¹⁸ and on the basis of actions brought under Article 173 of the EEC Treaty.¹⁹ The distribution of the powers of the Council and Commission in the context of the procedure for the conclusion of agreements pursuant to Articles 228(1) and 113 of the EEC Treaty and Article 101 of the EAEC Treaty is another means of ensuring a democratic exercise of foreign policy powers.

This internal control system is supplemented by external control exercised on the one hand by the bringing of actions before the Court of Justice of the European Communities by individual states in connection with the Community's acts, and on the other by the national parliaments' control over the conduct of their respective governments within the context of EPC and the Council of the European Communities. These indirect control mechanisms exercised by national parliaments over Community policy interlock with direct control where the Member States and the Community jointly enter into what are known as `joint agreements' with non-member countries.

The effect of the indirect controls exercised by national parliaments over the Community's foreign policy activities varies from one Member State to another according to the constitutional position of the individual parliaments with regard to foreign relations and their attitude towards the role of their respective governments in the Council of the European Communities. The combined effect of distance from actual decision-making centers and of parliamentary restraint in controlling foreign policy activities is to reduce the significance of this decentralized form of democratic control. At the same time the survival of the powers of national parliaments to exert indirect control over. Community foreign policy is a source of potential conflict which, in the absence of appropriate coordination mechanisms, can act as a sheer impediment to the Community's foreign policy activities rather than as proper control.

Although the governments of the Member States are institutionally incorporated in the Community's decision-making procedure, the national parliaments have not been similarly included in that system since direct elections to the European Parliament. As a consequence, the national parliaments exercise their powers, including those in the field of foreign policy, without any coordination with the European Parliament. The resulting conflicts are different in nature from internal conflicts between the institutions of a single organization, as the similarity of their tasks promotes between the various systems fundamentally opposing or, at the very least, isolated procedures. Only formal mechanisms and institutionalized constraints to joint solution of conflicts could prompt the parliaments of different systems to cooperate. So far, however, there are no structures for this. For this reason the European Parliament and the national parliaments are simultaneously involved in exercising democratic control over European foreign policy, at least where measures are involved which do not fall clearly within the exclusive remit of either the national parliaments or the European Parliament, for example the two-fold parliamentary influence in the context of EPC. It would however be erroneous to regard this institutional overlapping solely in negative terms, as the risk of inconsistency and of reduced efficiency is offset by the increase in legitimacy which can be engendered by involving national parliaments in the shaping of European foreign policy. In addition, even the loose association between the two parliamentary levels acts as a check on extreme positions and as a spur to those which are too passive. Increased coordination, for example by establishing an institution at Community level in which the national parliaments are represented,²⁰ might however increase the positive effects of cooperation between the institutions of various organizations.

3. The Importance of the European Parliament in the Control of

European Foreign Policy

The inclusion of representatives of the peoples in the institutional system of the Community constitutes a tangible expression of the principle of democracy, which is one of the cornerstones of the Community. It makes the Community fundamentally different from traditional supranational organizations, in which only representatives of the governments of the Member States are involved in making policy decisions. The participation of direct representatives of the peoples in principle constitutes autonomous and democratic sanctioning of the Community's exercise of power.

In accordance with Article 137 of the EEC Treaty, the European Parliament consists of `representatives of the peoples of the states brought together in the Community'. It has been directly elected since 1979. Although its powers are laid down in the Treaty, Parliament has long sought to amend the Treaties in order to extend these powers. Several amendments to the Treaties have met some of these demands,²¹ whilst other amendments are sought within the context of the plan for the creation of a European Union.²²

Parliament's position in the Community constitution does not therefore reflect a rigid concept of institutionalized supranational democracy. Variations in Parliament's position vis-à-vis the other Community institutions are the result of its impermanent and changeable nature, laid down in the Treaties and still applying: the institutions are the subjects and objects of continuous change to a much greater extent than under national constitutional law. Formal treaty amendments and practical application of the Treaty show that this process of change is intensifying.²³ This applies in particular to its role in the shaping of Community foreign policy and its position as regards cooperation between the Member States over foreign policy matters.

Since the directly elected Parliament is the strongest source of legitimacy in the Community system, it is an obvious move to give it a central position in the formulation of European foreign policy. The European Parliament was, however, according to the original treaties, not conceived as an institution exercising a decisive role in the shaping of EC policies. This applied to foreign policy as well.²⁴ The most recent Treaty amendments and additions introduced by the Single European Act show that the need for parliamentary sanctioning of European foreign policy is acknowledged and accepted more and more. Since then the European Parliament has enjoyed power in the field of foreign relations going far beyond its legislative powers.

Parliament's involvement in the conclusion of treaties can take five different forms, which reach from non-compulsory and non-binding consultation to co-decision. Major international treaties concluded by the Community require the assent of Parliament. The European Parliament thus achieves a role of independent importance in treaty relations governed by public international law, as its rights of participation must, at any rate to this extent, be regarded as a `rule of [its] internal law of fundamental importance' within the meaning of the Vienna Convention on the Law of Treaties²⁵ as regards the validity of Community treaties.

In addition, Parliament can exercise its institutionalized powers of supervision over the Commission and Council to control Community foreign policy. Parliament is, moreover, increasingly enunciating its foreign policy principles independently of the other institutions and also representing those principles vis-à-vis non-member countries. This reveals a special feature of the Community's institutional system: the foreign policy activities of the Community institutions are not uniformly moulded by the political forces holding the majority at any given time. The composition of the various institutions bears no relation to the majorities in the European Parliament. As a result, different foreign policy principles are given priority in the Council and Commission so that differences arise between the institutions which are not accounted for by political substructures and are for this reason revealed to the outside world as well. Precisely this independence enables the European Parliament to develop and put forward its own independent foreign policy attitude which, despite its limited feasibility in formal terms, is becoming an important factor in the formulation of foreign policy by the other institutions.

Incidentally, the independence of the institutions is an important contribution to the transparency of the formulation of foreign policy objectives; it is thus an element which promotes democracy.

The activities of the European Parliament are not restricted to the scope of the Community treaties. On the contrary, the Community Member States have granted the European Parliament the right to have a say in and to supervise the cooperation in foreign policy matters agreed between themselves in treaties governed by public international law.²⁶ Parliament's power, in the context of the formation and conduct of policy (which is strongly influenced by the executive at national level) to define and enunciate principles at the international level is crucially important for intra-Community legitimacy of the foreign policy which produces external effects by virtue of that very legitimacy.

Since the focus of democratic control of foreign policy within the Community's institutional system has shifted to the European Parliament, we shall now examine more closely the mechanisms at Parliament's disposal.

2 See Art. 3(c) and Preamble, paras. 6,7,8 EEC Treaty; Art. 2(4) Euratom Treaty.

3 Preamble, paras. 2, 5 and Art. 30, Single European Act of 17 and 28 February 1986, OJ (1987) L 169/1.

4 Example: The `Lomé Convention' with developing countries. For a detailed analysis of problems related to this type of agreement see D. O'Keeffe & H. Schermers (eds.), Mixed Agreements (1983).

5 On the foreign policy of the EC, see Beutler, Bieber, Pipkorn, Streil, Die Europäische Gemeinschaft - Rechtsordnung und Politik (3rd ed. 1987) 504; Bourgeois, `Les relations extérieures de la Communauté européenne et la règle de droit', in Capotorti, Ehlermann et al. (eds.), Du droit international au droit de l'intégration, Liber Amicorum Pierre Pescatore (1987) 59; Brückner, `Foreign Affairs Powers and Policy in the Draft Treaty establishing the European Union', in Bieber, Jacqué, Weiler (eds.), An Ever Closer Union (1985) 127; P. Demaret (ed.), Relations extérieures de la Communauté européenne et marché intérieur: Aspects juridiques et fonctionnels (1986); De Vree, Coffey, Lauwaars (eds.), Towards a European Foreign Policy (1987); Groux, Manin, La Communauté Européenne dans l'ordre international (1984); Lak, `Interaction between European Political Cooperation and the European Community', CML Rev. (1989) 281-299. Louis, Brückner, `Relations extérieures', in Megret, Waelbroeck et al. (eds.), Le droit de la Communauté Economique Européenne (Vol. 12, 1990); S. Perrakis, `Les relations extérieures de la Communauté Européenne après l'Acte Unique Européen', RMC (1989) 488; Vedder, Die auswärtige Gewalt des Europas der Neun (1980).

6 See K. Loewenstein, Political Power and the Governmental Process (1957) 45. A narrower definition is used by G. De Vergottini, Diritto Costituzionale Comparato (2nd ed. 1987) 428. For international organizations Henry Schermers describes institutional control as `influence on the policy of the organization', H. Schermers, International Institutional Law (2nd ed. 1980) 315; `control' in a wider sense is used as well by R. Monaco, `Principes régissant les rapports entre les institutions d'organisations internationales', in Scritti di diritto delle organizzazioni internazionali (1981) 279.

7 See E.W. Böckenförde, `Demokratie als Verfassungsprinzip', in Isensee, Kirchhof (eds.), Handbuch des Staatsrechts (Vol. I) (1987) 887. On democracy in the EEC see J. Frowein, M. Hilf, `Die rechtliche Bedeutung des Verfassungsprinzips der parlamentarischen Demokratie für den europäischen Integrationsprozeß', Europarecht (1983) 301, (1984) 9; P. Pescatore, `Les exigences de la démocratie et la légitimité de la Communauté Européenne', Cahiers de Droit Européen (1974) 499; J. Weiler, `Parlement Européen, Intégration Européenne, Démocratie et Légitimité', in Louis, Waelbroeck (eds.), Le Parlement européen dans l'évolution institutionnelle (1988) 325; M. Zuleeg, `Der Verfassungsgrundsatz der Demokratie und die Europäischen Gemeinschaften', 17 Der Staat (1978) 27; G. Ress, `Über die Notwendigkeit der parlamentarischen Legitimierung der Rechtsetzung der Europoäischen Gemeinschaften', in Fiedler, Ress (eds.), Verfassungsrecht und Völkerrecht, Gedächnisschrift W. Geck (1989) 625.

8 See Single European Act, Preamble, para. 3; Declaration on Democracy, European Council of 8 April 1978, EC Bulletin No. 3 (1978) 5; see also ECJ cases 138, 139/79 Roquette, Maizena v Council (1980) ECR 3333, para. 33 and case 54/75 de Dapper v European Parliament (1976) ECR 1381, para. 20/25.

9 EP Resolution of 17 June 1988 `on the democratic deficit of the EC', OJ (1988) C 187/244; Weiler demonstrates that the existence of Parliament is a necessary but not sufficient criterion for democracy in Louis, Waelbroeck, supra note 5.

10 See Art. 3 Additional Protocol No. 1, European Convention on Human Rights.

11 See, e.g., Friedrich Hegel: `Seine Richtung nach außen hat der Staat darin, daß er ein individuelles Subjekt ist. Sein Verhältnis zu anderen fällt daher in die fürstliche Gewalt, der es deswegen allein und unmittelbar zukommt, die bewaffnete Macht zu befehligen, die Verhältnisse mit anderen Staaten durch Gesandte usw. zu unterhalten, Krieg und Frieden und andere Traktate zu schließen.' in F. Hegel, Grundlinien der Philosophie des Rechts (1849), para. 329. For further references see Grewe, `Auswärtige Gewalt', in Isensee, Kirchhof (ed.) Handbuch des Staatsrechts (Vol. III) (1988) 921, 924.

12 See L. Henkin, Foreign Affairs and the Constitution (1972); Bestor, `"Advice" from the beginning, "consent" when the end is achieved', 83 AJIL (1989) 718; Richardson, `Checks and Balances in Foreign Relations', 83 AJIL (1989) 736.

13 For a comparative study on Parliament's powers in foreign policy see A. Cassese (ed.), Parliamentary Foreign Affairs Committees, the National Setting (Vol. I) (1982). See also L. Wildhaber, Treaty Making Power and the Constitution (1971); S. Weiß, Auswärtige Gewalt und Gewaltenteilung (1971); Dhommeaux, `Le rôle du Parlement dans l'élaboration des engagements internationaux: Continuité et changements', Revue du Droit Public (1987) 1449; V. Lippolis, La costituzione italiana e la formazione dei Trattati internazionali (1989); Grewe, supra note 10.

14 Federal Consitutional Court Collection, 1, at 372, 394; 68, at 1, 87.

15 See, e.g., Grewe, supra note 10, at 942.

16 For a comparison between foreign policy making in a state (USA) and the EC, see Stein, Henkin, `Towards a European Foreign Policy? The European Foreign Affairs System from the Perspective of the United States Constitution', in Cappelletti, Seccombe, Weiler (eds.), Integration Through Law (Vol. I, book 3) (1986) 3.

17 Loewenstein, supra note 5, at 127; De Vergottini, supra note 5, at 252; Böckenförde, supra note 6.

18 Examples: ECJ Opinions 1/76 (Laying-up Funds - 1977) ECR 741; 1/78 (Natural Rubber Agreement - 1979) ECR 2871.

19 Example: ECJ case 45/86 Commission v Council (1987) ECR 1493.

20 Such a model of a `third chamber' had been submitted by the `ad hoc Assembly' in 1953 but was not taken up again in the European Parliament's Draft Treaty for a European Union of 1984. See Schwarze, Bieber, Eine Verfassung für Europa (1984) 397, 317.

21 See, e.g., Treaties of 22 April 1970, OJ (1971) L 2/1 and of 22 July 1975, OJ (1977) L 359/1 on budgetary powers; Act of 20 September 1976, OJ (1976) L 278/1 (Direct Elections); Treaty of 17 and 28 February 1986, OJ (1987) L 169/1 (Single European Act).

22 See EP Resolution of 23 November 1989, OJ (1989) C 323/111.

23 See supra note 19; on changes by way of constitutional practice see Bieber, `note on Art. 137', in Groeben, Thiesing, Ehlermann (eds.), EWG-Vertrag Kommentar (4th ed. 1990).

24 On Parliament's roles and powers in the shaping of the EC foreign policy before the Single European Act, see Neunreither, `Die Rolle des Europäischen Parlaments innerhalb der Außenbeziehungen der Gemeinschaft', in Hasenpflug (ed.), Die EG-Außenbeziehungen, Stand und Perspektiven (1979) 75; Weiler, `The European Parliament and Foreign Affairs', in A. Cassese (ed.), Parliamentary Control over Foreign Policy (1980) 151; J. Weiler, The European Parliament and its Foreign Affairs Committees (1982); Jacqué, Bieber, Constantinesco & Nickel, Le Parlement européen (1984) 247. For a summary of the European Parliament's major activities in foreign affairs until 1977 see EP report on the European Community in International Law (draftsman: Mr Jozeau-Marigne) Doc. EP 567/77. The two major reports on self-understanding of its institutional role in external relations were the report `on the competences and powers of the European Parliament' (draftsman: Mr Furler) Doc. 31/1963-1964, Resolution of 27 June 1963, OJ (1963) 1961 and report `on the role of the European Parliament in the negotiation and ratification of treaties of accession and of other treaties and agreements between the European Communities and third countries' (draftsman: Mr Blumenfeld) Doc. 1-685/81, Resolution of 18 February 1982, OJ (1982) C 66/68.

25 Article 46, paragraph 2, Vienna Convention on Treaties between States and International Organizations of 1986.

26 Art. 20 Single European act, see J. Frowein, Die vertragliche Grundlage der Europäischen Politischen Zusammenarbeit (EPZ) in der Einheitlichen Europäischen Akte, and Mischo, `Les efforts en vue d'organiser sur le plan juridique la coopération des Etats membres de la Communauté en matière de politique étrangère', in Capotorti et al. (eds.), Liber Amicorum Pierre Pescatore (1987) 247 and 441; Nuttall, `Interaction between European Political Cooperation and the European Community', 7 Yearbook of European Law (1987) 211.

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