The pre-Maastricht rational and permissive consensus to European institutions has given way to a constrained consent that constantly questions EU policies and its legitimacy.¹ The debate on the legitimacy of the European Union (EU) moves essentially on two main tracks: the normative approach, which assess the set of laws, standards and institutions that justifies EU power, and the empirical/social approach, which consider the will of the people to recognize EU normative legitimacy and to submit to its authority. In this essay, I analyze these two aspects in the post-Maastricht era (1992), when the legitimacy debate of the EU increasingly involved public opinion and scholarly debate.² This essay rejects the existence of a democratic normative deficit through the critique of Scharpf’s concept of input and output, asserting that the latter is based on two erroneous assumptions: 1) it does not recognize the distinction between the degree of European representativeness and the national one, and 2) it uses the standards of centralized national democracies to evaluate a political entity of a supranational, heterogenous and decentralized nature. In the second part, I analyze the principle of perception of social legitimacy to find the causes and solutions to improve it. In this case, Scharpf’s formula is re-evaluated from a theoretical point of view, proving to be extremely useful for summarizing the possible causes of empirical legitimacy declining. I conclude by arguing that, despite a clear perception of normative illegitimacy in the population, this is inevitable to a certain extent, and it can only be mitigated. Instead, greater social legitimacy could be ensured using a better political discourse and output performance.

The EU legitimacy debate arises from the gap between norms and facts.³ Indeed, although the EU guarantees a certain degree of democratic proceedings at the legislative level,⁴ it fails to adequately reflect the interests of the member states and to guarantee citizens’ participation and influence in the decision-making process. Scharpf summarized well this concept by formulating the dichotomy input legitimacy (democratic participation of citizens) and output legitimacy (effectiveness of policies), arguing that the EU should have some degree of both to be considered legitimate.⁵ More recently, Schmidt added that in addition of having input and output legitimacy, the accountability and transparency of the decision-making process (throughput) must also be guaranteed.⁶ This formulation has provided the analytical frameworks on which to assess EU legitimacy over the last two decades. However, while this formula is adequate to assess a liberal-democratic state legitimacy, it is misleading in judging the legitimacy of such supranational political-entity. This is the case for two reasons: first, it does not fully consider the inevitable third degree of representativeness (1st: local; 2nd: national; 3rd: European) and second, it fails to distinguish the centralization and political-formal independence of member states from the decentralized and politically dependency of the EU. More generally, the legitimacy assessment used by Scharpf and Schmidt utilizes the legitimacy standards of a parliamentary democratic archetypal-type state to assess EU legitimacy, overlooking the fact that the two types of legitimation are based on different principles.

Scharpf analyzes the democratic legitimacy of European political power starting from the Abraham Lincoln’s formulation of a democratic state (government of the people, by the people and for the people), and by comparisons with the German federalism.⁷ Drawing from Weiler’s idea of asymmetry between European Union law and intergovernmental European policy-making,⁸ Scharpf observes the European dynamics from a federal legislative standpoint, asserting that, while national states have lost legitimacy due to an increasingly interdependent international system, the EU has not been able to fill this void.⁹ Although Scharpf is optimistic about a possible solution to this problem,¹⁰ however, I argue that this is unlikely to happen, as long as the member states remain the highest form of political organization within the EU. Scharpf believes the EU capable of replacing the legitimacy void of member states through basic input and strong output. In my opinion, EU legitimation cannot replace the national one, as they possess different principles from which they generate. Nation-states possess the ability to self-legitimize, whereas in the case of the EU, legitimacy is constantly granted by its member states through their memberships. For this reason, the EU is unable to make up for this democratic deficit, as it eludes this typical criterion of liberal democracies by its very nature. Instead, it represents a third and different degree of legitimacy which depends totally on the approval by the previous two (local and national). Nevertheless, the EU has been trying to fill its democratic deficit through a process of ‘democratization’ which is inspired by the regulations of its member states. Fossum argues that, being the EU system born from a previous one that was largely based on the use of expertise and executive officials, the post-Maastricht EU democratization is a continuous attempt to ‘align’ and ‘catching up’ with the democratic standards of its member states.¹¹ This attempts have their roots in the neo-functionalist vision of the European integration process, which envisages a ‘shift of loyalty’ (and legitimacy) from national to supranational institutions:¹² the authority of the nation-states should eventually dissolve as citizens consider them no longer capable of satisfying their own interests. This concept reflects Scharpf’s idea of replacing the national level with the supranational one. Indeed, the post-Maastricht EU democratization is an attempt to weaken or even replace the second degree of representativeness. As I argued for Scharpf’s analysis, this is very unlikely to happen in the foreseeable future, as it would require the use of a tremendous social pressure that would likely destroy the EU legitimation instead of improving it. Therefore, in assessing the normative legitimacy deficit, we cannot help but consider the EU as a third degree of representativeness, separated from the national and regional level.

Having established the necessity to distinguish European legitimacy from the local and national level, in what ways EU normative legitimacy can be enhanced? While I do not recognize a normative legitimacy deficit, the Eurobarometer clearly shows that at least a perceived illegitimacy is present to a considerable extent in the European people.¹³ The EU supranational level is, ideally, a compromise between the interest of the citizens and its member states.¹⁴ Consequently, its policies are inevitably perceived distant from which they generate (local). ‘The popular will […] is all the more felt the more restricted the underlying community is.’¹⁵ This is not the case for the EU. Indeed, I assert that very little can be done to improve the perceived lack of normative legitimacy, if possible disintegration and fractures among the member states want to be avoided. Even an increasingly predominant role on the part of the European Parliament, which on the one hand would guarantee greater normative legitimacy, on the other would cause a further loss of sovereignty of national parliaments, causing resistances as in the case of Brexit.¹⁶ Furthermore, an enhanced role of the European Parliament does not guarantee an increase in social legitimacy, relegating the new acquired normative legitimacy to a simple legislative formality. Empirical analysis demonstrates that the enhanced legislative and supervisory power of the European Parliament since the Nice and Lisbon Treaty did not translate into a raise of legitimacy.¹⁷ The 2013 Standard Eurobarometer shows that only 32% of the EU population acknowledged the strengthening of the EP role over the last decade. ¹⁸ It could be argued that this is either due to the relatively poor importance that citizens attach to the normative legitimacy or to the ineffectiveness of European political discourse and propaganda, or both. However, I believe that this perception of representative remoteness is inevitable to some extent. It can be alleviated or aggravated, yet not erased. It is a typical problem of representative democracies, and it is present to a general lesser extent also at the national level. Arguably, the only way to alleviate this perception would be by improving the channels of direct representation, as Bellamy and Castiglione argue. However, they themselves recognize the conflicts that would arise by delegating too much decision-making power to the local level due to the ethical-cultural differences between the European peoples. In this case, a greater degree of direct participation would sharpen the differences between the peoples of Europe, alienating rather than uniting them.¹⁹

The second reason for not agreeing with the normative Scharpf’s democratic deficit within the EU lies in the analysis of its institutional structure and decision-making process. The EU is a multilevel governance system with overlapping authorities that, despite increasing centralization, remains substantially decentralized and dependent on its member states.²⁰ As Falkner puts it: ‘[it] is likely to be accompanied by a trend towards inter-system convergence’ rather than appropriating national legitimacy.’²¹ Moravcsik follows the same reasoning: ‘Most critics compare the EU to an ideal plebiscitary or parliamentary democracy, standing alone, rather than to the actual functioning of national democracies, and corrected for its multi-level context.’²² According to the author, The EU has an effective checks and balances system, based on narrow mandates and super-majoritarian decision-making methods, which makes it democratically legitimate. Furthermore, Moravcsik considers it appropriate to delegate matters of poor public salience to non-elected institutions, such as the European Central Bank and the Court of Justice. Indeed, even assuming a greater decision-making capacity of citizens, this by no means would ensure meaningful deliberations, but it would likely highlight the differences among European peoples, as for an incrementation of direct representation discussed above.²³ Banchoff and Smith also recognize the problem of attributing national legitimacy criteria to the European level: ‘we argue that a focus on popular attitudes and central institutions reflects categories of analysis derived exclusively from the experience of the nation state, and which therefore do not capture the dynamics of recognition and representation in the EU.’²⁴

Therefore, the democratic deficit formulating by Scharpf is not suitable for assessing EU normative legitimacy, as it fails to effectively consider the supranational nature of the EU and the different level of representativeness. For this reason, despite a perception of illegitimacy in the population, the democratic deficit sustained by Scharpf by applying the normative legitimacy principles of liberal democracies contains a basic analytical error.

Contrary to the normative, social legitimacy concerns the acceptance and the support of the citizens and it is based on perception rather than objective criteria.²⁵ In essence, social legitimacy comes from citizens’ recognition and support of normative legitimacy. There is no doubt that social support for EU institutions declined considerably between 2008-2010 due to the citizens’ perception of EU inadequate responses on the eurozone crisis.²⁶ However, it has declined sharply over the last two decades for debated reasons. Indeed, being fundamentally linked to a subjective value, assessing the factual reasons for this variation is rather complex.

According to some, the ‘suspension of democracy’ in the decision-making process during the recent time of crisis and the EU’s inability to respond effectively to them have profoundly affected European citizens’ support,²⁷ while others argue that the lack of transparency and accountability of European Commission policies should be considered as a determining factor to understand social legitimacy.²⁸ As I mentioned earlier, Scarpf’s input and output formula seems suitable to explain the decrease of social legitimacy from a theoretical perspective. Indeed, the democracy intermission in the European decision-making process, for instance with the imposition of austerity policies and technocratic governments in Greece and Italy in 2011, certainly reinforced the sense of input illegitimate proceedings of EU policymaking, especially on the taker-policies states.²⁹ On the other hand, the poor coordination and delay in responding to migratory flows in 2014-2015 demonstrated the scarce effectiveness of its foreign policy in relation to border defense, undermining its output legitimacy. In this case, Scharpf’s formulation provides a good theoretical and investigative starting point from which analyze the European decision-making process and its influence on the social legitimacy, rather than on the normative one.

However, the objective evaluation and effectiveness of EU policies are of little relevance, as it does not significantly affect the citizens perception and understanding of their social-political reality. Instead, the ability to persuade and justify EU measures through the use of political discourse, coercion and soft power have shown to have much greater impact in improving social legitimation. In social science, political discourse is tightly linked to policymaking insofar as it may produce people perceived reality, explicitly creating the ideas and schemes on which to base its own legitimacy.³⁰ In other words, political discourse is the tool that generates propaganda core principles. Schmidt argues that political discourse is an effective way to improve political authority and legitimacy. The discourse power exercised using the ‘only possible solution’ rhetoric in times of crisis have effectively counterbalanced the anti-democratic emergency measures. However, although most of such emergency measures tended to be normalized with time, they were delegitimized when they did not lead to the desired output results.³¹ Despite regulations managed to bypass the established democratic process, they were rejected for perceiving to cause poor efficiency in the long term. Hence, the empirical data seems to give more relevance to the output-oriented legitimacy, and instead relegate the input-oriented one to a more marginal effect.³² This claim is also supported by a recent survey by Strebel and Marcinkowski, and by Scharpf himself, when he states: ‘If European policy networks should be able to assure win-win solutions that satisfy all interests affected, output-oriented legitimacy would be assured, and the democratic deficit would cease to matter’.³³ However, Jongh and Theuns argue that better performance would not compensate with EU democratic deficit, but rather with its desirability to exist: ‘the outcome of a political process is legitimate if it meets existing procedural standards of legitimacy’.³⁴ This is true from the normative standpoint discussed previously, but it has little social relevance. Even if the output does not necessarily compensate for the lack of democratic deficit, it would still guarantee a higher social legitimacy through the fulfillment of the collective interest. This should hardly surprise, considering that man has lived peacefully under various forms of government. In this regard, even if the two principles tend to be analytically intertwined, it is important to separate legitimacy from democracy. Although the democratic principle has become fundamental in assessing legitimacy, this assumption is ‘historically contingent’.³⁵ Therefore, it could lose importance with the loss of collective memory or with the transformation of culture, especially if sufficient output is guaranteed. Most of the academic literature agrees that the European integration process has been more an elitist and technocratic process based on informal meeting than a strictly political-democratic process. Indeed, although governments approved the treaties, these had often been discussed earlier in other forums, away from the public debate.³⁶ There are no fundamental reasons to think that this cannot continue to be the case in the future.³⁷ Some scholars go so far as to consider this informal governance network as ‘the glue that holds the cumbersome and contradictory system of EU governance together’, as this would ensure a greater probability of reaching formal agreements.³⁸

In this essay I have critically assessed the EU normative and social legitimacy. In the analysis of the first aspect, I have argued that the principle of input and output devised by Scharpf contains two analytical errors. Firstly, it tends to compare or even replace the level of national representation with the European one. Secondly, it applies the principles of legitimation of centralized national states to the European supranational structure. Indeed, according to the author, the EU should compensate for the ineffectiveness of national states in guaranteeing the interest of citizens within an increasingly interconnected economic and social system. I have argued that the two legitimations have different nature and cannot be superimposed. The EU is not capable of self-legitimation and depends on the legitimacy delegated by member states to continue to exist. Therefore, without the latter, the EU could not possess its own normative legitimacy. For these reasons, I reject the presence of a democratic deficit within the European system of governance. Nevertheless, there is a perception of normative illegitimacy, which however cannot be eliminated but only attenuated. Indeed, this perception is due to the inevitably distant degree of representativeness of the European institutions, and by the very existence of the state as ultimate political authority which self-generates and holds the legitimating power.

Moreover, I have argued that the input and output analysis it is useful for delimiting the theoretical framework and finding the causes that alter the degree of social legitimacy. Starting from clear empirical evidences of the decline of such legitimacy through the analysis of Eurobarometer surveys, I stated that two effective ways to reverse this negative trend would be a better political discourse and propaganda in general, and a better performance of output-oriented legitimacy, which would compensate for the perceived regulatory deficit by increasing the desirability of European power, as argued by Jongh and Theuns.

Daniele Scano

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