13.2.1 The Unity of the Represented

The first difficulty when thinking about democratic representation in the EU is to identify the entity represented. Most political theories of representation view it as an operation whereby a more or less complex authority expresses a position on behalf of another entity, generally considered both unique and ultimate. For instance, Michel Troper and Manuela Albertone try to identify a ‘meta-concept’ of political representation with the following two elements: ‘on the one hand, the capacity of an authority to want or act on behalf of another entity to which that will and those acts are imputed. On the other hand, the supremacy of that authority and the function it exercises.’Footnote ⁹ The characteristics of the entity represented – its unity and superiority – are conceived around the idea that the operation of representation would precisely aim at making an identifiable totality express itself, or even exist. According to these authors, the legitimizing function of representation in political theory consists ‘in justifying power by claiming that it is exercised in another’s name’,Footnote ¹⁰ so that rulers would not act in their own name, but on behalf of another higher entity, namely – in democratic theory – the demos. The unitary character of the represented is particularly problematic because it is based on a fiction, or, at the very least, a stripped-down reality. Whereas, in the monarchical era, the unity of the representative made it possible to embody the multitude and conceive it as a whole, the advent of the democratic ideal now postulates the unity of the represented.Footnote ¹¹ It is the case of the invention of the ‘nation’, which is generally conceived as a purely abstract entity, or even of a ‘people’, whose representation cannot account for the complexity of the society that composes it. Henceforth, the unity of the represented has become a logical requirement of political representation. Representation requires assuming the unity of the entity represented, and, therefore, ignoring the diversity and complexity of its composition and the conflictual relationships that run through it. If the represented was fragmented into several independent entities, it would be impossible to make it express itself or even exist as such. Representation presupposes the autonomy of the represented, whether it is a people, a nation, a society, regardless of its components.

13.2.2 The Issue of Federative Duality

This conceptual approach to representation that presupposes the unity of the represented raises an important issue in federative type groups which, like the EU, are defined by the duality and equality of the federal and federated levels. The combination of federated and federal wills can hardly be appended to that of an encompassing totality that would subsume them, without risking at the same time to dilute them in the new entity. This is why the thinkers of federative theory believe that ‘in a federal structure, there are, legally speaking, two peoples: the federated people and the federal people’.Footnote ¹² The notion of ‘people’, like that of sovereignty, becomes problematic when thinking about the duality inherent in federalism.

It is from this perspective that one must understand the ambiguity of Article 10 of the Treaty on European Union (TEU) on the democratic principles of the EU. Article 10(1) TEU states that ‘the functioning of the Union shall be founded on representative democracy’ and yet, no demos is identified in whose name the cratos would be exercised. In order to circumvent the difficulty of having to choose between a single people or multiple peoples as represented entities, Article 10(2) TEU designates two collective entities: first, the ‘citizens’, who are ‘directly represented at Union level in the European Parliament’; and second, the ‘Member States’, that are represented in the European Council and in the Council by representatives who are said to be ‘themselves democratically accountable either to their national Parliaments, or to their citizens’. The latter results from the Treaty of Lisbon, which, by taking the Councils out of the orbit of pure interstate representation and into the democratic field, breaks with the conception that tended to present the European Parliament as holding the monopoly of democratic representation within the institutional system of the Union.Footnote ¹³ Article 10(2) TEU recognizes the democratic nature of the representation of Member States in intergovernmental institutions by highlighting that it is the representation of the national political communities of the Member States that is ensured by that representation. This convoluted construction tries to restore the idea of the complex nature of the EU, which is sometimes referred to as a ‘democratic federation of States and citizens’ to express the duality it embodies.Footnote ¹⁴ The distinction between ‘direct’ (parliamentary) and ‘indirect’ (intergovernmental) forms of representation may seem surprising at first, since, by hypothesis, representation presupposes intermediation and is generally opposed to so-called ‘direct’ democracy (which itself is never really such). Only the need to emphasize the unsurpassable duality of the federative structure explains the need to resort to this distinction between ‘direct’ and ‘indirect’ democratic representation.

The dual approach to democratic representation, however, often gives rise to the impression that its direct and indirect forms are in competition. Democratic representation in the EU would operate according to a ‘connected vessels’ system,Footnote ¹⁵ in which the strengthening of direct democratic representation in Parliament would necessarily detract from indirect democratic representation in the Councils. For example, according to Dieter Grimm, ‘the transformation of the Union into a parliamentary system would weaken rather than strengthen democracy in Europe’, because it increases the risk ‘that a Member State will be subject to a law that has not been approved by its democratically elected and controlled organs’.Footnote ¹⁶ For this author, in the absence of a genuine European demos whose members imagine themselves as such, for want in particular of a European public space linking European citizens and their representative organs, any increase in the powers of the European Parliament, which can only lead to a corresponding decrease in the powers of the Councils, would weaken the democratic legitimacy of the Union, which essentially emanates from the national demoi and their control over the positions of their national representatives within the Councils. In other words, the strengthening of ‘direct’ democratic representation would necessarily be at the expense of ‘indirect’ democratic representation. Yet, in the event of a conflict, ‘indirect’ democratic representation, which is rooted in Member States, would be the true source of democratic legitimacy.Footnote ¹⁷

This is why the hybrid form of dual democratic representation of the federated and federal levels is perceived as conflictual, unstable, and unsatisfactory. The concept of democratic representation seems to be captive of the State and unitary context in which it was mainly deployed. How do we escape this aporia of the unity of the represented? One solution is to duplicate, rather than oppose, the two components of democratic representation in the European federative context, that is, the States and the citizens.

13.2.3 A Solution? Dual Political Citizenship

The temptation to oppose the two levels of democratic representation, or to play the federated people against the federal people, underestimates the ubiquity of the represented components. Each of them includes two sides: one federated, and the other federal. Because they each are twofold, they cannot fully oppose each other without contradicting themselves. Yet, the question of the duplication of each of the components of democratic representation does not arise in the same terms.

The duplication of the State component of representation is classic. EU States may act as ‘members’ of the Union, thus participating in its representation, but also as ‘monadic’ States, representing themselves. It therefore seems simplistic, even erroneous, to oppose the European and national levels of democratic representation in the EU, since the former already comes in part from the latter. State duplication means that, on the one hand, the Union can only be democratic if its Member States are democratic, and, on the other hand, the latter can only remain democratic if the Union is democratic too. Admittedly, the boundary between the two ‘hats’ of ‘member’ or ‘monadic’ State is not always easy to draw, particularly when government representatives collectively exercise their competence outside the EU institutions.Footnote ¹⁸ But the idea of a functional duplication of representative State organs is not fundamentally problematic. It can be solved by a duplication of legal orders depending on whether States act as monads in the international legal order, or as members in the European legal order.Footnote ¹⁹

The idea of duplicating the citizen component of representation seems at first sight more problematic. It is implicitly conveyed by Article 10(2) TEU when it states that citizens are represented in the European Parliament ‘at Union level’. While it might seem like a pleonasm, since the European Parliament is obviously situated ‘at Union level’, it is meant to emphasize that citizens are also represented at another level, that of their Member State, which forms the other ‘indirect’ component of representation in the Union (see above, Section 13.2.2). This is also the meaning that can be given to Article 9 TEU in fine, reproduced by Article 20 of the Treaty on the Functioning of the European Union (TFEU) and according to which ‘[c]itizenship of the Union shall be additional to and not replace national citizenship’.Footnote ²⁰ Yet, while it may seem conceivable that a complex and abstract entity such as a State be duplicated in some cases, the duplication of the citizen as an individual endowed by definition with a single will faces an obvious objection: how could one and the same citizen be represented at two levels, without risking self-contradiction in the event of a conflict between these levels of representation?

This situation is fairly common. It is the case, for instance, when in the State context, a local representative institution collides with a national representative institution, but the issue is then decided based on a hierarchy of levels of representation articulated around the idea of a single and indivisible people. In the absence of such a single people, multiple citizenship is again problematic, even schizophrenic. An example of such a situation was when British nationals tried to pit their status as European citizens against that of national citizens in order to challenge the Brexit effects and continue to benefit from their rights deriving from their previous European citizenship. Presented with such a claim, the Court of Justice merely established a chronological relationship between the two forms of citizenship, national and European, and held that, after the entry into force of the withdrawal, the applicants could no longer claim their European citizenship since they ‘no longer hold the nationality of a Member State, but that of a third State’.Footnote ²¹ Such a chronological approach is questionable: not only does it obscure the fact that, unlike with third-country nationals, European citizenship had been acquired before being revoked,Footnote ²² but it also introduces a form of hierarchy between citizenships. It is difficult to understand how the exercise of national citizenship can call into question the existence of European citizenship, without assuming a form of superiority of one over the other. In fact, what this case law highlights is the derivative character of EU citizenship in relation to the citizenship of a Member State. This example shows the difficulty of articulating a dual and equal citizenship.

One way to overcome the difficulty of the egalitarian duplication of citizenship is to take into account the political nature of representation. As Jürgen Habermas highlights, the construction of citizens’ political opinions takes place within a public space of deliberation that ‘constitutes the necessary connecting element between the political autonomy of the individual and the formation of the common political will of all citizens of the State’.Footnote ²³ It is therefore necessary to distinguish the ‘raw’ interest of the individual as a member of society (Gesellschaftsbürger) from the final interest of the citizen as a member of the political collectivity (Staatsbürger), which is formed only through a space of collective deliberation. The political preferences expressed by citizens are embedded in communication structures that guide their choices, depending on the preferences of the other participants in the deliberation and the available strategies. However, nothing prevents this public space from being dual (national and European), including with a level of porousness between the two, so that the same citizen will be able to formulate different political demands depending on the space of deliberation in which they participate. Thus, under the condition of a two-level public space sufficiently developed to establish a close connection between the citizens and their representatives, the citizens could very well be, or feel, involved in the definition of the national interest that will be defended by their representatives in the Council, and of the transnational interest defended by the European Parliament. Admittedly, conflicts between the results expressed in these two spaces may arise, but this does not necessarily require reducing the citizen to a single or ultimate deliberative community. On this condition, a dual political citizenship in the same space need not be perceived as completely confrontational.

At this stage, one may formulate a first intermediate conclusion to resolve the aporia of the unity of the represented in the European context. The represented is the citizen, himself conceived as a member of two political communities, which justifies that he is represented at European level both ‘directly’ (via the Parliament) as a member of the European political community, and ‘indirectly’ (via the Council) as a member of the national political community. With such a reading, the democratic failure of one level of representation necessarily impacts on the democratic quality of the other. Far from opposing each other, the two levels of representation are bound to strengthen each other.Footnote ²⁴ The question then arises as to whether the conditions for a duplication of political citizenship in the EU are really met. Which leads to the second difficulty: European political citizenship still seems to be largely correlated to the national public space. In those circumstances, it is difficult to consider its holders to be represented as such.

13.3.1 From Peoples to Citizens

Pursuant to Article 10(2) TEU, citizens are ‘directly’ represented at the Union level by the European Parliament. But what citizenship does the European Parliament represent? A truly autonomous European citizenship, or a derivative, or even ‘indirect’, form of national citizenship? The question is whether, from an institutional and procedural point of view, the parliamentary system of European representation is giving itself the means to achieve the ambition it displays. If an evolution is occurring, it is still in progress.

The establishment of a form of democratic representation of a parliamentary type within the institutional system of the Community was necessary from the outset. It mirrored the creation of international assemblies by numerous treaties after the war (Western European Union, Council of Europe, North Atlantic Treaty Organization (NATO), etc.), but also stemmed from the desire to establish a democratic control over the activities of this independent supranational authority, the High Authority, precursor to the current European Commission. The European Coal and Steel Community (ECSC) already included a Common Assembly. The European Economic Community (EEC) retained the same institutional structure, including an assembly that was intended to reflect the association between the citizens of the Member States and the construction of Europe. This assembly, which took the name ‘European Parliament’ in 1962,Footnote ²⁵ is today the parliamentary institution of the EU.

Article 137 of the Treaty of Rome of 25 March 1957 establishing the EEC provided that the Assembly ‘shall be composed of representatives of the peoples of the States united within the Community’.Footnote ²⁶ This formula set aside the idea of representing a European people in favour of representing national political communities. The demoicratic nature of representation in the European Parliament was further reinforced by the method of appointment initially chosen. This method established an organic link between national and European parliamentarians because Members of the European Parliament (MEPs) were chosen by the national parliaments from among their members in accordance with the procedure laid down by each Member State.Footnote ²⁷ Admittedly, the principle of election by direct universal suffrage had been provided from the outset.Footnote ²⁸ Article 21 of the ECSC Treaty left it to the discretion of each Member State to have members of the national parliament chosen from among its members or to provide for the election of MEPs by direct universal suffrage. Article 138(3) of the EEC Treaty instructed the European Parliament to prepare a draft to that effect, on which the Council had to decide unanimously and which had to be ratified by all the Member States in accordance with their respective constitutional requirements. It was not until 1976 that the principle of the election of MEPs by direct universal suffrage was put into practice.Footnote ²⁹ But direct election did not change the nature or scope of representation. As the French Constitutional Council emphasized, the Act concerning the election of the Assembly of the Communities by direct universal suffrage does not intend to ‘modify the nature of this Assembly, which remains composed of representatives of each of the peoples of these States’ or ‘to create sovereignty’.Footnote ³⁰ The election was organized within the Member States, which were free to determine the holders of the right to vote and stand as a candidate. In principle, they reserved it for their nationals.Footnote ³¹

One might have thought that the introduction by the Maastricht Treaty of EU citizenship (to which is attached the right to vote and stand as a candidate in European elections in the Member State of residence under the same conditions as nationals) was an innovation.Footnote ³² This seemed to be confirmed by the Treaty of Lisbon which finally established a link between European citizenship and representation in the European Parliament. The hitherto immutable formula describing the European Parliament as an assembly consisting of ‘representatives of the peoples of the States brought together in the Community’Footnote ³³ no longer appears. From then on, the Treaty provides that ‘citizens are directly represented, at Union level, in the European Parliament’Footnote ³⁴ and describes MEPs as ‘representatives of the Union’s citizens’.Footnote ³⁵

According to the French constitutional judge, there had been a change. In 2003, the French Constitutional Council found that the creation of eight electoral constituencies instead of a single jurisdiction did not infringe the principles of the indivisibility of the French Republic and of the unity of the French people. According to the French Constitutional Council (Conseil constitutionnel), since the Treaty confers on EU citizens the right to vote and to stand as a candidate in elections to the European Parliament in the State of residence under the same conditions as nationals of that State, ‘Members of the European Parliament elected in France shall be elected as representatives of the citizens of the European Union residing in France’.Footnote ³⁶ This highlights a change, or a potential change, in the nature of the democratic representation assured by the European Parliament. The Parliament would no longer be the representative organ of the national political communities of Member States, but that of a new body politic transcending national political bodies and made up of European citizens. In other words, the European Parliament would have become the organ of expression of a European people which is, if not already there, at least in the making, if we are willing to believe in the performative function of law and legal language and admit that political representation constitutes the represented subject. An additional sign of this change in the nature of representation in the European Parliament would be the severance of the link between the European Parliament and the national parliaments in 2002 by the decision amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, which made the national and European parliamentary mandates incompatible (as was already the case in France).Footnote ³⁷ But the text of the treaty is not unequivocal and several elements might question this reading.

13.3.2 A ‘Second-Order’ European Political Citizenship?Footnote ³⁸

First, the national fragmentation of the electorate and the ballot’s territorialization into States persist. The State remains the electoral basis for the European elections, which are organized in each Member State for the representatives elected in that State.Footnote ³⁹

Second, the distribution of seats in the European Parliament is subject to quotas per Member State and does not apply strict demographic proportionality. Indeed, according to Article 14(2) TEU, ‘[r]epresentation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State’, with the specification that ‘[n]o Member State shall be allocated more than ninety-six seats’. This means that ‘the ratio between the population and the number of seats of each Member State … shall vary in relation to their respective populations’, but ‘each Member of the European Parliament from a more populous Member State represents more citizens than each Member from a less populous Member State and, conversely, that the larger the population of a Member State, the greater its entitlement to a large number of seats’.Footnote ⁴⁰ The application of that principle of degressive proportionality results in an imbalance in demographic representation, such that the vote of the citizen of the least populous Member State weighs approximately twelve times more than the vote of the citizen of the most populous State. However, as the German Constitutional Court (Bundesverfassungsgericht) observed,Footnote ⁴¹ if the European Parliament were the representative body of European citizens taken as a political unit, such an imbalance would not be acceptable because it would disregard the democratic principle and its corollary, the equality of citizens in the representation of the vote. It can only be explained and justified because, despite the assertions of the Treaty, the European Parliament remains an institution partly representative of the peoples of the Member States. Therefore, equality between Member States legitimately tempers demographic proportionalityFootnote ⁴² because the allocation of national contingents of MEPs responds not so much, or not only to, the concern to guarantee equal suffrage for citizens, but also to the need to ensure adequate representation of national democracies. This system is capable of reflecting at the level of the European Parliament the balance of political forces in even the smallest Member States.Footnote ⁴³ For a while, the amendment to Article 190(2) Treaty establishing the EEC introduced by the Treaty of Amsterdam emphasized this point: by stating that ‘the number of representatives elected in each Member State must ensure appropriate representation of the peoples of the States brought together in the Community’, it tended, in the minds of its initiators, to ensure that ‘the representation of the smaller Member States should be sufficient to enable the main political currents of a State to have a seat’.Footnote ⁴⁴ In other words, the principle of degressive proportionality which governs the State allocation of MEP mandates is justified by maintaining the division of the European electorate into national electorates whose political pluralism must be represented in the European Parliament.Footnote ⁴⁵

Third, the delimitation of national electorate bodies for the European elections remains within the competence of Member States to determine. EU law does not determine who is entitled to vote and stand as a candidate at elections to the European Parliament. All it obliges Member States to do is enlarging the national electorate to include the European citizens who reside on their territories.Footnote ⁴⁶ As for the conditions for integration, they are freely determined by the State, provided that they are the same for citizens of the Union and for nationals. The Netherlands is thus theoretically entitled to decide that the Overseas Countries and Territories (OCTs) (Netherlands Antilles) are not part of the electoral territory and, therefore, to exclude from the right to vote and to stand as a candidate the European citizens residing in the OCTs. It is only to the extent that Netherlands law recognizes the right to vote and to stand as a candidate to Netherlands nationals residing in a third country that the European principle of equal treatment prohibits them from doing so.Footnote ⁴⁷ Even more so, the United Kingdom has been able to grant the right to vote and to stand as a candidate in European elections to Commonwealth citizens (Gibraltar residents)Footnote ⁴⁸ even though they are not British nationals and, therefore, citizens of the Union, on the ground that, under a national constitutional tradition, they have a ‘close connection’ with the United Kingdom.Footnote ⁴⁹ This does not imply that Commonwealth citizens who are residents of Gibraltar become citizens of the Union and entitled to vote in European elections in another Member State to which they have transferred their residence. The competence of the State to determine the holders of the right to vote and to stand as a candidate in elections to the European Parliament implies an imperfect overlap between the subject which, according to the Treaties, is represented in the European Parliament and the European electorate defined by the States.Footnote ⁵⁰ In principle, the right to vote should be recognized to each of the citizens of the Union.Footnote ⁵¹ This does not mean, however, that this right must be exercised by each of them, since the State is free to set the conditions (age, residence, ineligibilities,Footnote ⁵² incompatibilities, etc.), or even that this right must be reserved exclusively to them. Political unity remains defined nationally. The right of political representation at the Union level ‘is in no way the attribute of belonging to a new political or European community … but rather the mark of integration into a given national community’.Footnote ⁵³ Together with civil, economic, and social rights, the political rights attached to EU citizenship contribute to endowing their holders with the status of ‘quasi-nationals’.Footnote ⁵⁴

If one adds that European elections are still not organized according to a uniform electoral procedure,Footnote ⁵⁵ and, on a political level, the transnational dimension of the public space is not yet sufficiently developed to allow European elections to generate a fully European political agenda,Footnote ⁵⁶ one must admit that, even under the Treaty of Lisbon, representation in the European Parliament continues to be ‘nationally mediated’,Footnote ⁵⁷ and a member of the European Parliament largely remains an emanation of a national community. In sum, the democratic legitimacy of the European Parliament remains more plural than unitary. Symptomatic of this is the fact that the entry into force of the Treaty of Lisbon did not lead the Court of Justice to change its qualification inaugurated in 1980Footnote ⁵⁸ according to which the involvement of the European Parliament in the Union’s decision-making process reflects ‘the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative’.Footnote ⁵⁹

How might it be possible remedy this indexation of European political citizenship on the national public space, this national compartmentalization of the parliamentary representation of European citizens?

13.3.3 Transnationalizing the Public Space and Democratic Representation

Despite the persistent national origin of MEPs, elements of a transnationalization of democratic representation in the European Parliament already exist.

First, the presentation of candidates for MEP under the aegis of European political parties is encouraged. Although the first European political parties were formed in the 1970s with the specific goal of coordinating electoral campaigns in the context of European elections, the Maastricht Treaty enshrined their role in primary law, which is, according to Article 10(4) TEU, to ‘contribute to forming European political awareness and to expressing the will of citizens of the Union’. After the Treaty of Nice included a legal basis to that end,Footnote ⁶⁰ the EU created a European legal status and established a public financing mechanism to promote their emergence and development.Footnote ⁶¹ To benefit from it, the political party must be transnational in scope, that is, represented in at least a quarter of the Member States by MEPs, in national or regional parliaments or in regional assemblies; or have obtained, in at least one quarter of the Member States, at least three per cent of the votes cast in each of those Member States in the last elections to the European Parliament. Moreover, it also must have taken part in the elections to the European Parliament or have publicly expressed its intention to participate in the next elections to the European Parliament. This clearly shows the desire to make European political parties vehicles for the Europeanization of democratic representation. Today, there are nearly fifteen European political parties, formed by grouping together national parties. To give just one example, the European People’s Party, which was created in 1976, today brings together more than eighty political parties, some thirty of which do not come from EU Member States. Yet, the development and constitutional role of these parties remain limited.Footnote ⁶² Deprived of members and partisans (other than through the membership of affiliated national parties) and hampered in the elaboration of global societal projects by the heterogeneity of the conceptions of their member parties and the limitation of the competences of the Union, they hardly are instruments of mobilization and political socialization of European citizens. The electoral manifestos they issue in preparation for the European elections have little echo on the different national stages during the European elections, and MEPs remain preselected by the national parties. At most, they are able to coordinate the positions of the MEPs within the transnational political groups.

As early as 1953, the MEPs decided to sit by political groups and not by national delegations. The transnational dimension of these groups was gradually reinforced by legal texts. In 1997, while the Rules of Procedure of the European Parliament still allowed for the formation of political groups comprising only Members from a single Member State, in an effort to promote the transnational dimension of the political groups, the minimum number of Members required for a group was lowered in proportion to its increase in multinational character.Footnote ⁶³ Today, the Rules of Procedure of the European Parliament of April 2023 only allow the formation of transnational political groups. Article 33 provides that a political group must have at least twenty-three members elected in at least one quarter of the Member States. This structuring according to a transnational political logic is unanimously seen as a sign of ‘fusion’ of European representation, and therefore of the ‘generality’ of the mandate.Footnote ⁶⁴ Far from being the representatives of the national political bodies from which they come, MEPs collectively represent the indivisibility of the European peoples whose collective interest is distinct from the sum of their particular interests. Even the European judge emphasized that the grouping of MEPs by political affinities ‘enables local political particularities to be transcended and promotes the European integration’, and aids in realizing the constitutional objective assigned to European political parties of forming a European consciousness and expressing the political will of European citizens.Footnote ⁶⁵ Representation would thus constitute the represented as an indivisible body politic. Let us beware, however, of giving too much credence to this sign of the mandate’s generality. As evidenced by the fate of the Member of Parliament (MPs) elected in the United Kingdom who, following Brexit, had to leave the European Parliament, the mandate of MEPs cannot be compared to that of a Member of the French National Assembly who, although elected in a constituency, does not represent that constituency, but the nation as a whole.Footnote ⁶⁶ Moreover, the partisan structure of the assembly does not prevent members of the same nationality of a political group from forming national delegations to which, depending on the group, a greater or lesser degree of autonomy is recognized, which allows them, in certain cases, to free themselves from the group voting discipline.Footnote ⁶⁷

The prohibition of binding mandates may also contribute to a transnationalization of representation in the European Parliament despite the national fragmentation of the electorate. Article 4(1) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage provides that ‘[r]epresentatives shall vote on an individual and personal basis. They shall not be bound by any instructions and shall not receive a binding mandate’.Footnote ⁶⁸ The mandate’s representative nature thus frees MEPs from the duty to look after the interests of their national electorate. MEPs are therefore legally in a position to determine the collective interest of European citizens in a complete independence. By way of a parallel, it is worth recalling that the abolition of binding mandates by the deputies of the Third Estate in 1789 in France was intended to allow them to speak on behalf of a collective person rather than merely reflect a will that predated their action.

In the future, the establishment of transnational lists of candidates for the European elections would certainly go a long way towards remedying the national partition of democratic representation in the European Parliament. This proposal is old. Already in 1998, the European Parliament adopted a report which suggested electing 10 per cent of MEPs on transnational lists within the framework of a single electoral constituency.Footnote ⁶⁹ President Macron took up this idea in his speech at the Sorbonne University on 26 September 2017 when he suggested using the quota of departing British MPs for this purpose in view of the 2019 European elections.Footnote ⁷⁰ Since the Treaty of Lisbon, this proposal no longer necessarily requires a revision of the Treaties because Article 14 TEU provides that the European Parliament represents the citizens of the Union. Yet, it nonetheless requires amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, which lays down the principle of the distribution of seats by State, and, as such, makes the Member State the electoral territorial basis of European representation. Such an amendment would have to follow a particularly burdensome procedure.Footnote ⁷¹ That is why the proposal did not advance.Footnote ⁷² But it has since been renewed in the European Parliament with the aim of applying it to the 2024 European elections.Footnote ⁷³ It is also one of the forty-nine proposals that emerged from the Conference on the Future of Europe.Footnote ⁷⁴ The system devised by the European Parliament provides for the election of twenty-eight candidates from lists drawn up at the Union level, with voters being called upon to vote twice in the elections: once for a list drawn up within the national framework, and another time for a transnational list. This structure strives to respect the principle (imposed by primary law) of degressive proportionality even for the composition of transnational lists. For this purpose, Member States are classified into three categories, comprising, respectively, the most populous, the medium-sized, and the least populous States. Each list will have to include a succession of groups of three candidates, and each candidate from a group will have to belong to a different category of States. Since the twenty-eight seats are distributed according to the D’Hondt method, each category of States can hope to be represented.

Such a reform would clearly represent a substantial step forward towards the emergence of a European civic community and for the development of a European public sphere. It would strengthen the European dimension of the electoral campaign at a time when it is still too often fragmented by State and focused on national issues. It would also encourage the emergence of European political parties, or European confederations of national political parties. The draft reform further provides that equal treatment and opportunities must be reserved in each Member State for transnational lists as compared to national lists. If, in fulfilment of the European Parliament’s wishes,Footnote ⁷⁵ the establishment of transnational lists were, moreover, coupled with the institutionalization of the currently informal mechanism of the lead candidate (Spitzenkandidat) – which would stand on a transnational list for the votes of all European citizens to defend a political programme – the power of collective self-determination of European citizens and the politicization of the European democratic system, including the democratic dimension of the election of representatives to the European Parliament, would increase significantly.Footnote ⁷⁶

Finally, the development of mechanisms for democratic participation also contributes to the transnationalization of European representation. Activated upstream of decision-making, these participatory mechanisms have the common characteristic of involving individuals in the European decision-making process regardless of nationality. They therefore invite the European representative institutions (the Council and the Parliament) to be more attentive to the expectations of an emerging European society. The expected result is twofold: transnationalizing and democratizing the Union’s representative system.Footnote ⁷⁷ The transnationalization effect of the European legislative process stems in particular from the European citizens’ initiative, which, in order to be admissible, must be signed by at least one million Union citizens from at least a quarter of the Member States.Footnote ⁷⁸ It also derives from the contribution of European social democracy to European representative democracy. Whether European social democracy takes the form of professional representation such as the European Social Committee (whose consultation is binding on the European legislator in the cases provided for by the Treaty), or that of the European social dialogue (which involves the social partners in the development of social standards), it brings not the citizen, but the ‘situated man’ to the political scene, that is to say, the ‘man conditioned by his environment’Footnote ⁷⁹ to give voice to the demands called for by his concrete economic situation.

Promoted by the Treaty of Lisbon,Footnote ⁸⁰ participatory democracy is conceived as a means of correcting ‘the persistent State-national bias of representative democracy in the Union’.Footnote ⁸¹ By striving to bring out and give voice to the European society, it also pushes European democracy to be more representative of that society.

13.4.1 Representation and Representativeness

In recent decades, the demand for democratic representation has become more sensitive to taking into account society’s diversity.Footnote ⁸² It is no longer satisfied with representing the people conceived as a body of citizens equal in rights, but aspires to make representation more faithful to the reality of the body politic, more ‘descriptive’, in particular by improving its inclusive character, or – at least – by remedying its tendency to exclude certain vulnerable groups. The evolution in the vision and perception of society as being composed of multiple identity groups, sometimes antagonistic, often subject to relations of domination and in constant search of emancipation explains this shift to a representation that is more representative. A better representation of these vulnerable groups at the political level would guarantee democratic improvement, by ensuring that political decision-making no longer perpetuates exclusionary phenomena in a systemic way. Yet, by being assigned an objective of inclusion and emancipation of vulnerable groups, representation also changes its nature: it ceases to be seen as mainly procedural or formal and takes on a substantial and more ‘distributive’ dimension of social justice, one of access to positions that determines, by the adoption of laws, the allocation of other valued social goods (education, employment, health, and so on). Such a transformation of the representative ideal raises a challenge that is not unique to European democracy, but also (and primarily) concerns democracy at the national level. Nevertheless, the clash between the change of scale (Europeanization) and the change in nature (substantialization) of democratic representation raises in the EU a particular difficulty which is mainly due to the lack of both institutional and mental structures to signify and politically represent the diversity of a European society under construction. The current modern ideal of representativeness usually develops as a higher and later stage of representation of an already existing national society. In contrast, aiming for a more faithful representation of social diversity on a European scale requires breaking down the elements of a social whole even before it is fully formed and imagines itself as such. As it stands, it is difficult to affirm the existence of a European society sufficiently organized to be re-presented in its diversity. Admittedly, Article 11 TEU includes, among the democratic principles of the EU, the open and transparent dialogue with ‘civil society’.Footnote ⁸³ In practice, however, the dialogue with civil society takes place through the best organized and most powerful actors at the European level, including lobbies, to the point that it is difficult to see it as a true emanation of the European society.Footnote ⁸⁴ This is why, at the European level, representation is torn between two poles: to strive to create a homogeneous whole that does not yet exist, and to reproduce the heterogeneous reality of this inchoate whole.

A move towards a more substantialist approach to European representation should however not be ruled out. Its first translation can be seen in the proposal of Council Regulation to replace the Act concerning the election of the MEPs by direct universal suffrage that was approved by the European Parliament.Footnote ⁸⁵ In addition to allowing for the establishment of transnational lists, the proposal requires respect for gender equality in the determination of candidate lists ‘without infringing the rights of non-binary people’, and provides for the possibility of exemptions from nationally provided thresholds for the allocation of seats for political parties representing recognized national and linguistic minorities.Footnote ⁸⁶ Yet, until the adoption of this reform, the efforts for representativeness continue to come from, and depend on, applicable national electoral laws. Moreover, the issue of gender and minorities obviously does not exhaust the ideal of representativeness of different social groups. This is why the shift towards a greater representativeness of the European society seems to require the introduction of new forms of participation and direct involvement of citizens in European political decision-making.

13.4.2 The Representation and Participation of Society

The desire to represent and involve categorical or sectoral social interests is reflected in the introduction of specific organs and procedures at the Union level, such as the European Social Dialogue or the European citizens’ initiative. Apart from the fact that their transnational dimension contributes to a decompartmentalization of the public space (see above, Section 13.3.3), these participatory mechanisms tend to compensate, to some extent, for one of the weaknesses of the Union’s representative system with regard to at least one of the principles governing ‘representative government’, which is to be accountable during elections and, therefore, responsive to the citizens’ preferences.Footnote ⁸⁷ Despite institutional arrangements and the strengthening of the political link between the Commission and the Parliament, the system is still unable to establish a link between the outcome of European Parliament elections and the choice of those who govern and the adopted policies. It therefore offers voters little opportunity to ‘punish representatives in the polls’.Footnote ⁸⁸ However, these participatory mechanisms giving voice to sectional interests remain confined to a complementary or even secondary role in relation to parliamentary political representation at the European level. The clear mistrust of these participatory mechanisms probably stems from the fact that parliamentary representation at the European level remains recent and fragile, so that the addition of these mechanisms – which potentially challenge majority choice – is perceived as posing a risk of further weakening representation.

As for social partners, negotiation may lead to the adoption of European legislation on social matters. The Single European Act opened the possibility that European social dialogueFootnote ⁸⁹ could lead to the adoption of social rules by means of an agreement,Footnote ⁹⁰ a possibility that was consolidated by subsequent revisions of the founding Treaties and is now regulated by Articles 154 and 155 TFEU. Several directives, relating for instance to working hours or safety at work, have been adopted following trade union negotiations at the European level, giving rise to a form of European social democracy.Footnote ⁹¹ At first, such a procedure was widely promoted, and the jurisprudence even considered it to be an element of ‘the principle of democracy, on which the Union is founded’ because it ensured that, in the absence of participation by the European Parliament in the process of adopting a legislative act, ‘the participation of the people in that process be otherwise assured’.Footnote ⁹² Social democracy was at that time considered an equivalent to parliamentary democracy. Later, however, the social dialogue mechanism not only ran out of steam and struggled to produce new texts, but it was not viewed as triggering any obligation for the Commission to legislatively implement an agreement negotiated by the European social partners.Footnote ⁹³ This institution, whose democratic legitimacy is only indirect, has a right of veto for the sake of protecting its initiative power, which allows it to define the general European interest independently. Admittedly, if the European social agreement had a greater scope, the social partners would have been granted a right to undertake a European legislative initiative, which, for the moment, is not granted to the European Parliament itself.Footnote ⁹⁴ The restriction of the weight of social democracy thus seems justified by the weakness of European parliamentary democracy, which it was supposed to complement, or even compensate for.

The same dilemma applies to the new European citizens’ initiative procedure provided in Article 11(4) TEU. On the one hand, this form of participatory democracy at the European level is supposed to bring the Union’s institutions closer to its citizens, by giving them the opportunity to directly orient European political action. It contributes to the creation of a transnational public space (see above, Section 13.3.3), by stimulating the formation of sectoral demands within European society. This is why the Court of Justice has chosen to develop its potential, by relaxing the material conditions for the admissibility of an initiative,Footnote ⁹⁵ and by obliging the Commission to cooperate more with the initiators.Footnote ⁹⁶ On the other hand, the Court’s case law has upheld the procedure’s main obstacle, which is to leave the Commission free to decide on the follow-up to be given to a citizens’ initiative. The justification for this blocking power lies in the fear of a competition between ‘representative’ democracy and ‘participatory’ democracy,Footnote ⁹⁷ as the latter can only ‘complement’, and not supplant, the former.Footnote ⁹⁸ As the Court of Justice specifies, the interest of the citizens’ initiative procedure remains limited: it is not to impose a political agenda on the representative institutions, but only ‘to initiate debate on policy’.Footnote ⁹⁹ This explains why the European Commission retains its veto. Again, as long as the EU Parliament does not have a right of legislative initiative, there can be no question of recognizing such a right for citizens’ associations.Footnote ¹⁰⁰ This would extend participatory democracy beyond its role of ‘complement[ing]’Footnote ¹⁰¹ the democratic legitimation of European public authority.

It is difficult to assess the sincerity of the argument of a risk of rivalry between the classic form of political representation and the newer form of citizen participation at the European level.Footnote ¹⁰² The real fear may be that of creating a way to challenge the actions of the EU institutions. In practice, many European citizens’ initiatives call into question the political choices of the majority made by the representative institutions.Footnote ¹⁰³ Yet, a living democracy, one that is truly representative of the diverse aspirations of its society, would probably benefit from taking a better account of dissent and giving it a voice so that it can exert a real influence on its representatives, or else it might reinforce the idea that citizen mobilization only bears fruit at the national level.Footnote ¹⁰⁴ To integrate protest, it is necessary to be able to respond to it, by organizing the deliberation of society with itself on a European scale.

13.4.3 Representation and Deliberation in Society

For the first time, a ‘Citizens’ Conference’ was held at the European level in 2021–2022 to outline the prospects for the EU’s institutional and political evolution. The participatory mechanism established by the Conference on the Future of Europe was special in that it emphasized its deliberative dimension. This deliberative turn extends to the European level a paradigm that is spreading within national democracies with the ambition of taking better account of what citizens want, but also, and above all, of focusing on the way in which citizens form their political will, which must be egalitarian and inclusive. The deliberative process matters as much as its outcome, given that deliberative exchanges are supposed to influence the outcomes, by transforming the initial aspirations of the participants who are guided by both individual and collective reason.Footnote ¹⁰⁵ This democratic form, which somehow reconnects with the roots of the democratic model, aims to generate ‘a new type of representatives’.Footnote ¹⁰⁶ It is no longer a question of appointing a governing elite, nor of representing sectoral interests, but of deliberating individuals ‘randomly chosen, for a short period, as ordinary citizens and for specific and limited tasks’.Footnote ¹⁰⁷ The figure of the ‘citizen-representative’ reappears.Footnote ¹⁰⁸ But since these are ‘representatives’ without a mandate or popular responsibility, their democratic legitimacy depends above all on the transparency and quality of the deliberative process in which they participate.Footnote ¹⁰⁹

Yet, this new paradigm generally presupposes the prior existence of a single or ultimate democratic perimeter, within which the deliberative mechanism is instituted.Footnote ¹¹⁰ In addition to the difficulty of organizing deliberations on a ‘large scale’,Footnote ¹¹¹ in the EU there is also the difficulty of organizing them on a ‘double scale’. The initial obstacle of the duality of democratic levels in the EU strikes again. This is why the composition of the Citizens’ Conference on the Future of Europe sought to combine the two dimensions of citizenship, national and European. On the one hand, citizens’ conferences were organized in parallel at both levels: national and European. In the latter case, four panels of 200 citizens from across the Union were formed by taking into account the geographical origin (nationality and urban/rural environment), gender, age, as well as socio-economic background and education level. This guaranteed a certain form of representativeness, especially for young people (one third of participants were young people aged sixteen to twenty-five). On the other hand, the final Citizens’ Conference, which was responsible for summarizing national and European deliberations and adopting the final recommendations, was composed of eighty citizens from the European panels, but also of one citizen from each national panel. That is, 107 citizens initially designated by a random drawing, plus the President of the European Youth Forum. A whole series of other representatives still completed this citizens’ assembly of 108 people, which gave it a plethoric and hybrid composition, half-deliberative and half-representative.Footnote ¹¹² A total of 449 participants adopted forty-nine proposals, which were further divided into more than 300 concrete measures. A digital platform also collected nearly 50,000 contributions to the debate.

It is not easy to measure the real contribution of this type of complex deliberative structure at the European level.Footnote ¹¹³ Although it lasted for more than two years, it remained largely unknown to public opinion and the national media. From this point of view, it does not seem to have contributed much to the transnationalization of public space.Footnote ¹¹⁴ The experience of the Citizens’ Conference could, however, pave the way for other forms of transnational deliberation, such as the convening of thematic Citizens’ Conferences prior to European legislative work. Moreover, unlike the European citizens’ initiative, which was perceived as contesting and competing with parliamentary representation, the experience of the Citizens’ Conference seems to be more congruent. It is interesting to note that the Conference came out in favour of strengthening European parliamentarism, notably by proposing to confer a right of legislative initiative on MEPs or to set up transnational European elections (proposal n°38). Supporters of a strengthening of the ‘direct’ form of democratic representation could thus draw from transnational citizen deliberation a democratic justification for a real overcoming of the national State framework of democracy.Footnote ¹¹⁵ On the other hand, if most of the proposals of the Citizens’ Conference were to go unheeded, which is not to be ruled out in the light of national experiences, a new democratic disappointment will then likely arise.