The EU response to the Coronavirus pandemic, with the latest deal reached by the European Council on 21 July 2020, has been described as “historic” by many commentators: the issuance of common debt of the magnitude envisaged in the plan and with a long-term repayment perspective, the mix of loans and grants promised, the (timid) introduction of genuine own resources for the EU budget through new taxes, the confirmed commitment to the implementation of the European Green Deal and to conditionality mechanisms, also in relation to the rule of law however subtle and obscure the reference to the Union values is in the European Council’s conclusions. Equally decisive appears to be the way the deal will be implemented, given the inconsistent readings political leaders and EU institutions have provided of some of the clauses of the plan sealed last week, also with regard to the rule of law.

An important component of the legitimacy of the deal lies in how its implementation will be scrutinized and how accountability mechanisms will work. Indeed, while we can assume that overall the redistributive capacity of the deal and the resources it will bring at national level will strengthen the EU’s output legitimacy, the input legitimacy has been somewhat constrained, although at least the Commission proposals for Next Generation EU and for a revised Multiannual financial framework (MFF) have been debated in the European Parliament and in most national parliaments in the Member States before the special European Council meeting. Relatedly, once adopted, the throughput legitimacy – the transparency, the more or less deliberative and participatory nature – of the process leading to the implementation of the latest European Council’s determinations is key for building a certain level of public awareness and understanding of the big changes expected and of the importance of the recovery plan.

As always in the European Union, it is particularly complex to articulate the relationship between the authority, i.e. where the power ultimately lies, and the democratic responsibility for the decisions taken and for their enforcement. In a recent collection published as a special section of the Journal “European Papers”, in the framework of the Horizon 2020 Project RECONNECT, of which Luiss is a partner institution, the problematic disconnection between the allocation of powers to the EU and to its Member States and the forms of democratic control over their exercise in the Union is the object of in-depth reflections (see the introduction by Cristina Fasone, Daniele Gallo and Jan Wouters). Finalized before the pandemic erupted, with Europe the epicentre for some months, each article of the special section looks at the problem of the disconnection from a specific perspective and discipline ranging from law to political science and history: the design by the Union’s “founding fathers” of mechanisms of democratic accountability of the Commission (Lise Rye); the effectiveness of the electoral accountability of the European Parliament (Julien Navarro); the democratic legitimacy problems caused by the Eurozone crisis and leading to the tension between technocratic dominance and populism (Cesare Pinelli); the asymmetry between administrative and constitutional developments of the EU and the limits of the rule of law in the Union (Aldo Sandulli); the ability of the EU to effectively control the respect of the fundamental values on which the entire European construction is built (Jan Wouters).

In the European composite legal system, most decision-making processes show a “punctiform” nature, starting at one level of government – regional, national or supranational – moving to the next level, often going back to where they originally started for the implementation (as the articulation of the European Semester or the preliminary reference procedure to the Court of Justice teaches), or just end up being concluded at a different level of government (like it is for the complex process for the European Parliament’s elections). The source(s) of authority is dislocated out of the traditional forms of democratic accountability, which have been shaped domestically by centuries of constitutional history. So, against the conventional wisdom that sees accountability tools designed to work within the same level of government, new diagonal and multilevel mechanisms of democratic control have been put forward in the EU, including national parliaments’ attempt to scrutinize EU institutions like the Commission and the European Central Bank (ECB) or the European Parliament inviting representatives of the Member States for “exchanges of views”.

It seems that the more EU authority expands, the more the democratic legitimacy of the Union is in trouble. The attitude of several national governments or parties, to accuse the Union, depending on the convenience, of doing too little or too much, often even blaming the EU for their own failures, exacerbates this problem and leads to the perception of EU institutions as not only distant, but also detached from the needs of ordinary citizens.

As Treaties stand and with the present powers the EU is conferred, it would have been difficult for the European Commission – and the ECB with the pandemic emergency purchase programme– to elaborate more creative, encompassing, and sophisticated anti-pandemic measures than the ones proposed, from the perspective of constitutional (and maybe financial) engineering. The European Council has partly downsized the expectations and has not (yet) “crossed the Rubicon” of the fiscal union. In any event the importance of the deal cannot be denied and it all rests now on how it is put in force, to pair the exercise of the power with proper democratic scrutiny. In its resolution of 23 July the European Parliament has already promised to fight on the MFF, on rule of law conditionality and on some strategic cuts envisaged by the European Council. However, from a formal perspective at least, the European Parliament is side-lined on the adoption of Next Generation EU. Indeed, on debt issuance and on the repayments the legal basis is Art. 311 TFEU, which foresees just the consultation of the Parliament. On the Recovery Instrument, the European Parliament will be only informed, according to Art. 122 TFEU. Yet, national parliaments can deploy their scrutiny “weapons” on Next Generation EU, as in all Member States they are asked to adopt the EU Decision on their own resources and in any case control their executives, more or less effectively, in the EU intergovernmental institutions. It also remains to be clearly determined how the assessment, endorsement and ex post evaluation of national recovery plans will be subject to democratic scrutiny domestically and supranationally. New crucial challenges are ahead to reconcile authority and legitimacy in the Union, but in the right direction.