separation of powers—the Commission enjoys both executive and legislative rights—nor division between government and opposition, nor significant polarity between Left and Right, the ‘prime theme of the internal political process’ in the EU is rather a jockeying among autonomous institutions—the Commission, the Council, the Court, the Parliament—over their respective prerogatives. ‘Policy emerges as an epiphenomenon of this contest rather than from opposing ideological positions’.59
In such a system, it makes no sense to speak of a popular sovereignty that can only operate at national level, which is where electorates want to keep it—so much so that, the more powers the European Parliament acquires, the fewer people bother to vote for it. ‘It follows that Europe’s “democratic deficit” is, paradoxically speaking, democratically justified’.60 What then are the benefits of the confederation? For Majone, though the Treaty of Rome showed some traces of dirigisme, unavoidable in that bygone era, its governing principle was the basic maxim of economic liberalism: the separation of dominium from imperium—property from rule, the market from the state. In upholding it, Majone can be nearly as radical as Gillingham, pressing for regulatory powers in the Union to be handed over to the wisdom of business and professional associations, rather than continuing to be held by a residually statist Commission—Reagan’s salutary reforms across the ocean setting the challenging example. America, inspiration from the outset for Majone’s regulatory theory of Europe, returns as admonition at the end. ‘It would be unwise’, he tells us, ‘to forget that international competition takes place not only among producers of goods and services but, increasingly, among regulatory regimes as well’.61
The cool reduction of the EU to a modest confederal station serves a strong intellectual purpose. The elegance of Majone’s construction is to link a general thesis about politics in the West to an argument about the evolution of the modern state, based on a theoretical deconstruction of its functions, that can present the Union as if it were an effectual apex of universal transformations under way. The key to this construction is the notion of ‘non-majoritarian democracy’, which—Majone assures us—is not only the silent constitutional basis of the EU, but the preferred model of nearly all advanced countries, apart from a few wayward exceptions like Britain. There is thus no discrepancy, but rather a natural fit between emergent national, and community, institutions. It is this that underwrites the legitimacy of the principle of regulation—not redistribution—as the wave of the future at both levels, even if constitutional theory has not quite caught up with it. As over-attachment to the welfare state declines, ‘independent regulatory bodies and other specialized agencies would seem to be in a better position than government departments to satisfy the new demands of the electorate’.62 As a regulatory polity the EU, far from weakening democracy, actually enhances it by providing judicial and consumer protection for citizens against their own governments, in the form of rulings by the Court or directives from the Commission against which ministers cannot appeal.63
But what does the magisterially evasive term ‘non-majoritarian’ actually mean? Majone explains that ‘non-majoritarian institutions’ are ‘public institutions which, by design, are not directly accountable either to voters or to elected officials’.64 How then, on this definition, could there possibly be a nonmajoritarian democracy? The notion would be a contradiction in terms. The work of the illicit elision, from agencies to a polity, is to lend persuasive force to the idea that regulation is ceasing to be a subsidiary or sectoral set of activities in a modern state, and instead is becoming its central function, symbolically resumptive of public life as a whole. When constrained to spell out what ‘non-majoritarian democracy’ means, Majone appeals to Madison: it is those forms of democracy whose overriding objective is to protect minorities from the ‘tyranny of the majority’ and offer a safeguard against ‘factionalism’. But where are the tyrannical majorities or internecine factions to be found today? Nothing in Majone’s description of political trends in Europe, where on the contrary voters are by and large content with the way things are going, and ideological divisions are at an all-time low, corresponds to them. Madison has been hi-jacked for purposes quite alien to him. The effect of the construction is to extrapolate ‘market failures’ as if they were a contemporary version of the menacing mob the Founders had in mind. The gap between their political fears and the ‘efficiency issues’ that dominate Majone’s agenda is glaring.
Nor, of course, can questions of efficiency be separated from issues of redistribution, as allowing unanimous solutions mediated by experts. Aware of the difficulty, Majone seeks to turn it with the proviso that the two can be cleanly divided, as long as decisions regarding efficiency have no ‘wealth effects’—that is, include compensations to those who might otherwise suffer economically from them. He offers as an illustration the way in which the EU’s efficiency-promoting monetary union was accompanied by the creation of a redistributive ‘Cohesion Fund’. But the example undoes the distinction. Cohesion Funds had to be added onto monetary union at Maastricht precisely because the latter was not unanimously thought to be beneficial in equal measure to all—as Majone himself puts it, ‘the richer member states were particularly interested’ in further integration, and so had to make side-payments to poorer members that had reason to doubt they would do so well out of the arrangements.65 Nor was there much evidence of any real balance between the two, such that the net redistributive effect was likely to be neutral. In fact, Majone himself goes on to observe that the EU’s regional funds are not particularly effective in redistributing income between individuals in the poorer parts of the Union, without adding that the same could be said of their effect as between not a few regions: witness the Mezzogiorno. In significant political matters, the wish to cleave efficiency from redistribution as separate issues is an ideological dream. What it serves to do is essentially to insulate the status quo. The EU makes rules; it does not change the position of the players. That is what is best about it.
Yet, although approving the general structure of the Union as he construes it, Majone shows little of Moravcsik’s complacency. The failure of the European Constitution was not a bagatelle, let alone a sign of success. The draft Treaty included at least one significant feature that would have crystallized the EU’s true character as a confederation, namely the right to secession; so too its provisions for common arrangements in defence and foreign policy, tasks appropriate to a confederation. The defenestration of the Constitution by voters expressed a growing popular distrust of the Union, which lacks the seal not of political legitimacy—there is no popular desire to democratize it—but of economic performance. Since, however, the central purpose of the EU is economic, its lacklustre showing in both employment and productivity growth, across an entire business cycle from 1995 to 2005, cannot but undermine its legitimacy.
Nor are the results of the two major institutional changes to the Union in this period anything to boast of. Both the single currency and enlargement were pushed through with a combination of meticulous precision in their technical requirements and calculated vagueness about their general—economic and political—implications. In each case, the ‘uncertainties and ambiguities have been carefully concealed from the general public’, and the upshot has so far been unimpressive or counter-productive. The advent of the euro, by the admission of even such a staunch European as Mario Monti, the long-time commissioner first for the Internal Market and then for Competition, has yet to yield much by way of results. More gravely, the—often restrictive—decisions of the European Central Bank have an all too evident impact on the economic welfare of citizens. ‘For the first time, the outcomes of a European policy directly and visibly affect the general public rather than special interests or small groups of experts. Hence, much more than in the past, poor economic performance threatens the credibility of EU institutions, and erodes the narrow legitimacy basis on which the entire edifice of European integration rests’.66
What of enlargement? The inclusion of countries as poor as Romania and Bulgaria has converted the EU into a zone with a higher Gini-coefficient of income inequality than the arch-capitalist USA itself. This is no mere statistical effect, but a political determinant of the fate of needed reform in the Union. For it is fear of social dumping from the East that has blocked completion of the single market in services, which would have been uncontroversial when the Union was confined to the fifteen states of the West. Since services now account