the european democratic challange:the forging of a supranational volonte generale

The European Democratic Challenge:The Forging of a Supranational

Volonté Générale

Agustin José Menéndez*

Abstract: This article explores in a systematic manner the different components of thedemocratic legitimacy of the Union from the standpoint of deliberative democratictheory. Contrary to standard accounts, it is claimed that the democratic deficit must bedisaggregated, given that the Union has not only several shortcomings, but also somedemocratic surpluses. On the one hand, the Union was created to tackle the democraticdeficit of nation states, and has been partially successful in mending the mismatchbetween the scope of application of their legal systems and the geographical reach of theconsequences of legal decisions. Moreover, the European legal order is based on asynthetic constitutional law, which reflects the common constitutional traditions ofthe Member States, which lend democratic legitimacy to the whole Europeanlegal order. On the other hand, the lack of a democratically written and ratifiedconstitution is a central part of the democratic challenge of the Union. But equallyimportant is the structural bias in favour of certain material legal results, which stemsfrom the interplay of the division of competences and the plurality of law-makingprocedures.

I Introduction

Debates about whether the institutional structure and decision-making processes ofthe EU are democratic enough have been the bread and butter of European studiessince the mid-seventies.1 This article engages in earnest with such discussions bydisaggregating what is usually said to be the problem (the ‘democratic deficit’ of

* Profesor Contratado Doctor I3, Universidad de Léón; RECON research fellow, ARENA, Universiteteti Oslo. This article has been rendered possible by the generous funding of Work Package II of the RECONresearch programme by the Sixth Research Framework Programme of the European Commission.

1 It is true that the question has been posed in one way or the other since the Schuman Plan wasrendered public. This is a key message of Berthold Rittberger, Building Europe’s Parliament: Demo-cratic Representation Beyond the Nation State (Oxford University Press, 2005). But the very term‘democratic deficit’ and perhaps, more importantly, the array of questions usually associated with it,only became prominent in the academic and public debate in the seventies, precisely around the timeof the first democratic elections of MEPs. The troubled ratification process of the Maastricht Treatyfurther fuelled the debate.

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the Union) into its concrete components (the specific democratic pluses and short-comings of the Union). In doing so, the sources of the EU’s democraticlegitimacy are systematically individuated, exposed and criticised, thus transcendingthe standard aggregative approach that seems to render the problem ratherintractable.

The structure of the article is as follows. Section II is devoted to the clarificationof the democratic standards applied in this article. In particular, I claim that thelegitimacy of the EU is a matter of democratic legitimacy, at the same time that Ijustify the choice of the two basic premises which guide the operationalisation of theprinciple of democratic legitimacy in the EU context. In section III, I reconstruct thebasic foundations of the EU’s democratic legitimacy. In particular, I individuate sixmain sources of democratic legitimacy, namely (1) the national ‘enabling’ constitu-tional clauses on the basis of which nation states became Member States of theUnion; (2) the secondment of national constitutions as the collective ‘deep’ consti-tution of the EU; (3) the institutional actors and decision-making set up character-istic of the two standard law-making processes of the Union; (4) the comitologyprocedures to draft regulations and statutory instruments; (5) the expansion of thebreadth and scope of the right to equality resulting from the review of the Europeanconstitutionality of national laws by reference to Community fundamental rights andeconomic freedoms; and (6) last, but not least, the procedural subjective rightsthrough which citizens influence the process of application and adjudication ofCommunity norms. In section IV, I consider the key democratic shortcomings of theinstitutional structure and decision-making processes of the Union, which seem to bethe following: (1) the shrinking democratic legitimacy of European constitutionalnorms; (2) the undemocratic properties of European law-making procedures, due to(i) the ‘missing links’ in the chains of democratic legitimation of the two main law-making procedures; (ii) the structural bias in favour of certain substantive contentsstemming from the division of legislative labour; and (iii) the insufficient intercon-nection of European publics; all three further aggravated by the unconditionalsupremacy that Community law pretends to enjoy over conflicting national norms;(3) the undemocratic consequences of developing a substantive content of economicliberties autonomous from the principle of non-discrimination; (4) the undemocraticimplications of the actual configuration of procedural guarantees, which multiply theeffects of the structural substantive deficit enshrined in the division of legislativelabour. The last section holds the conclusion.

II The Foundations of the Democratic Legitimacy of the EU

A Why the Legitimacy of the EU has to be Assessed against NormativeDemocratic Theory

The first thesis defended in this article is that the EU can only exercise its powerslegitimately if its institutional structure and decision-making processes are sufficientlydemocratic, that is, if they ensure European citizens a sufficient degree of participationand influence over European affairs. To show why the latter is the case, it is necessaryto rebuff the two key variants of the theory that the legitimacy of the EU is notdependent on its democratic legitimacy (hereafter referred to as the strong and weakdecoupling theses).

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a) No Relevance of Democratic Legitimacy for the EU(the Strong Decoupling Thesis)The strong decoupling thesis denies that there is any necessary relation between legiti-macy and the democratic steering of European public power.2 There are two mainargumentative strategies to substantiate such a claim.

The first one affirms that European legitimacy derives from the extent to which itsexistence and its actual functioning contributes to the realisation of a ‘thick’ ethicalconception. The leading representatives of this strategy are the ordoliberal and neolib-eral theories of European integration, which characterise the Union as the institutionalmeans to ensure the realisation of private liberty, ie private economic autonomy.3 Inparticular, ordo-liberals and neo-liberals claim that the full accomplishment of the foureconomic freedoms enshrined in the Treaties is the litmus test of European legitimacy.

A second variant of the strong decoupling thesis is the definition of Europeanlegitimacy in procedural terms other than democratic decision making. Although his-torically speaking the most frequent type of non-democratic procedural theories ofdemocracy were authoritarian,4 in modern times they have been replaced by theorieswhich trace legitimacy back to the production and application of technical, scientific orexpert knowledge. On what concerns European affairs, the most articulated conceptionof this kind may be the theory of European ‘governance’ as a full-fledged alternative torepresentative democratic government.5 According to such a theory, democratic rep-resentation has been rendered ‘quaint and obsolete’ by technological change andeconomic globalisation. Both processes have reduced the capacity of classical politicalinstitutions to form a coherent volonté générale and to govern society.6 The complexityof the problems posed in post-modern societies, and the speed at which decisions are tobe taken, require new ways of ensuring and ‘producing’ legitimacy. In particular,inclusive participation mediated through political representation (‘government’)should be replaced by the ‘selective cooperation’ of stakeholders in decision-making

2 Cf A. Hirschman, The Rhetoric of Reaction (Harvard University Press, 1991) and S. Holmes, TheAnatomy of Anti-liberalism (Harvard University Press, 1993).

3 On ordo-liberalism, see the superb anthology edited by A. Peacock and H. Willgerodt, Germany’s SocialMarket Economy: Origins and Evolution (MacMillan, 1989). On ordo-liberalism and the EU, the keyauthor is Ernst Jachim Mestmaecker. See his ‘On the Legitimacy of European Law’, (1994) 58 RabelsZeitschrift 615; ‘De la Communauté économique à l’Union économique et monétaire’, (1995) 1 Revue desAffaires Européennes 111. President Klaus of the Czech Republic is the closest one gets to a political leaderendorsing these views. Many of his writings are available at http://klaus.cz/klaus2/asp/default.asp?lang=EN&CatID=YJrRHRsP.

4 Quite obviously still fresh in our collective memories. After all, Carl Schmitt was perhaps the last ‘great’theorist of such conceptions, well before his slippage into Hitler’s crown-jurist. See, among others,Dictatorship (1921); Political Theology (The MIT Press, 1985) (originally published in 1922); The Crisisof Parliamentary Democracy (The MIT Press, 1985) (originally published in 1923); Roman Catholicismand Political Form (Greenwood Press, 1996) (originally published in 1923); The Concept of the Political(University of Chicago, 1996_ (originally published in 1927 and 1936).

5 Governance is quite obviously an overstretched term. The label is widely used as a more encompassingand neutral term than government. But the most ‘radical’ advocates of governance mechanisms under-stand them as a full alternative to democratic law making as understood in a representative democracy.

6 See, eg, G. Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’,in C. Joerges, I.-J. Sand and G. Teubner (eds), Transnational Governance and Constitutionalism (Hart,2004), 3–28.

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processes (‘governance’).7 Or what is the same, governance mechanisms should become‘the new grammar of legitimate law’.8

The thick decoupling thesis is based on deep thinking and results in complex,convoluted and aesthetically impressive theories, but ultimately untenable ones. This isso because it provides a poor reconstruction of actual constitutional practices and relieson normative premises which are flatly contradicted by the said constitutional practice.

First, the constitutional identity of both the Union and its Member States is premisedon the coupling of legitimacy and democracy. The EU is, and has always been, a Unionof democratic Member States. It is a very well-established principle of Community lawthat membership is conditional upon applicant countries and actual Member Stateshaving an institutional set up and decision-making structure that ensures the pairing oflegitimacy and democratic legitimacy.9 Moreover, the Treaties explicitly affirm that theinstitutional set up and the decision-making processes of the Union are to be demo-cratically legitimate, at the same time that the Treaties constitute a strong public, theEuropean Parliament, which is meant to be a direct representative of European citizensas Europeans, not nationals of their Member States. Under such circumstances, to denythat the legitimacy of the EU has anything to do with democratic legitimacy (that it canbe a matter of realising economic freedoms only, or that it could be realised by the meresetting up of specific governance structures) is at odds with the constitutional identityenshrined in European and national constitutional law.

Second, and decisively, the institutional set up and the decision-making processes ofthe EU are so structured as to guarantee the infusion of direct and indirect democraticlegitimacy on European norms (as we will see in more detail in the section III of thearticle). This may still be far short of what is normatively required (as indeed will beclaimed in the section IV of this article). But the fact that citizens criticise Europeaninstitutions and policies on account of the insufficient democratic legitimacy of

7 The ultimate articulation of the ‘governance’ paradigm in the EU is the Commission’s White Paper onEuropean governance, COM (2001) 428 final, [2001] OJ C287/1, available at http://eur-lex.europa.eu/LexUriServ/site/en/com/2001/com2001_0428en01.pdf. A comprehensive critical analysis can be found inthe symposium edited by C. Joerges, Y. Meny and J. Weiler (eds), Mountain or Molehill? A CriticalAppraisal of the Commission’s White Paper on Governance, available at http://www.jeanmonnetprogram.org/papers/01/010601.html. A poignant (and to the point) criticism is given in P. Allott, ‘EuropeanGovernance and the Rebranding of Democracy’, (2002) 27 European Law Review 60; see especially at 60.On the overcoming of ‘representative democracy’ in a ‘radically’ new context, see the well-crafted (andterribly ambivalent) proposal of P. Nanz and J. Steffek, ‘Global Governance, Participation and the PublicSphere’, (2004) 39 Government and Opposition 311. See also a criticism of the assumption of radical‘novelty’ in C. Möllers, ‘European Governance: Meaning and Value of a Concept’, (2006) 43 CommonMarket Law Review 313.

8 Perhaps the finest exposition of such a line of thought is to be found in the writings of somebody who oncewas a paradigmatic advocate of deliberative democracy á-la Habermas: Oliver Gerstenberg. See his ‘TheDenationalization of the Very Idea of Democratic Constitutionalism’, (2001) 14 Ratio Juris 298; ‘Expand-ing the Constitution Beyond the Case of Euro-Constitutionalism’, (2002) 8 European Law Journal 172;and (together with C. Sabel), ‘Directly-Deliberative Polyarchy: An Institutional Ideal for Europe’, inC. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford UniversityPress, 2002) available in its entirety at http://www2.law.columbia.edu/sabel/papers/gerst-sabel1029.doc;and (together with G. de Búrca) ‘The Denationalization of Constitutional Law’, (2006) 47 HarvardInternational Law Journal 243. Gerstenberg goes so far as to claim that the Centros ruling of the EuropeanCourt of Justice (which, as is well known, broadly expanded the scope of freedom of establishment,increasing the structural power of capital and putting at peril basic preconditions of national welfaresystems) is to be regarded as promising in democratic terms (in ‘Expanding the Constitution’, at 190).

9 See Arts 48 and 7 of the Treaty of the EU; before the Maastricht Treaty, this requirement was written intothe founding Treaties of the Communities, although in a less explicit form.



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European decision-making processes (something which can be plausibly affirmed tohave been one of the underlying causes of the negative outcome of the constitutionalreferenda in France, the Netherlands and, more recently, Ireland)10 proves the sound-ness of the claim that legitimacy and democracy must also be connected at the Euro-pean level, and not only at the national or regional levels of government.

b) Playing Down the Relevance of the Democratic Legitimacy of the EU(the Weak Decoupling Thesis)The weak decoupling thesis affirms that the democratic legitimacy needs of the EU arefar less than what is generally assumed to be the case, to the extent that indirect ortransferred legitimacy can suffice.

The first version of this thesis characterises the Union as an intergovernmentalorganisation to which Member States have delegated a limited number of competencesfor functional reasons. Economic, social and technological changes would have under-mined the governing capacities of sovereign nation states in concrete spheres or policyfields, requiring the creation of supranational institutions. However, the areas wherestate capacities are overstretched are precisely those ‘that tend to involve less directpolitical participation’.11 Because the bread and butter of electoral politics (tax, defenceand the provision of social services) is said to remain firmly in the hands of MemberStates,12 the legitimation needs of supranational institutions and policies are said to berelatively modest, and could be guaranteed by designing supranational constitution-and law-making processes in such a way that key decision-making roles are assigned tonational representatives, so that the democratic legitimacy produced in nationaldecision-making processes can be effectively transferred to the supranational level.13

Thus, the democratic legitimacy of the Union does not stem from the direct democraticparticipation of European citizens in supranational decision-making processes, butfrom the fact that the wills aggregated through such processes are themselves the resultof democratic decision-making procedures at the national level. In addition, the func-tional capacities of the Union supplement its derivative democratic legitimacy with thelegitimacy that stems from the contribution of the Union to governing capabilities, and,very specifically, to the realisation of the constitutional goals enshrined in nationalconstitutions.14 This characterisation of European legitimacy is at the core of one of thedominant theoretical paradigms from which European integration is explained andreconstructed (liberal intergovernmentalism) and keeps on playing a key role in thetheorising of the relationships between Union and national legal orders, as advocatedby leading constitutional courts and constitutional lawyers.15

10 See H. J. Trenz, A. J. Menéndez and F. Losada (eds), ¿Y por fin somos europeos? (Dykinson, 2008).11 A. Moravcsik, ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the EU’, (2002) 40

Journal of Common Market Studies 603, at 606. See also ‘Preferences and Power in the EuropeanCommunity: A Liberal Intergovernmental Approach’, (1993) 31 Journal of Common Market Studies 473,at 518 (where he claims that the democratic deficit is to account for the success of the Union).

12 ‘In Defence of the “Democratic Deficit”’, ibid, at 607–609 and 611.13 The legitimacy of the Union derives from the continuous consent of states to membership (which they can

end unilaterally) and from the key role that the will of each Member State plays in the formation of thewill of the Union, both in constitutional and ordinary decision-making processes.

14 A. Moravcisk, The Choice of Europe (Ithaca Press, 1998), at 67–76 and 485–487 and ‘In Defence of the“Democratic Deficit”’, op cit n 11 supra, at 614.

15 Perhaps the best description and critique is in M. Kumm, ‘Who is the Final Arbiter of Constitutionalityin Europe’, (1999) 36 Common Market Law Review 351 and ‘The Jurisprudence of Constitutional



The second variant of the thin decoupling thesis affirms that the Union is a supra-national regulatory agent in charge of implementing the basic normative goals definedin the Treaties.16 The legitimacy of the Union is again indirect, but in this case stemsfrom the plurality of national democratic decisions setting up and defining the mandateof the Communities, and is conditioned to the loyal discharge by the Union of the tasksit has been mandated to perform. This legitimacy is supplemented by the technicalexpertise that the Union pools, and which renders possible the efficient pursuit of thegoals assigned to it.17 This second variant has had an enormous impact in scholarlycircles and also in the ‘rouages’ of European integration.18

There are two reasons why the playing down of the democratic legitimacy needs ofthe EU is not convincing. First, the EU does not only claim to be a full-blown politicalcommunity, but European decisions do have massive and widespread direct effects oncitizens, which require the direct democratic legitimation of the EU. For one, thepowers and competences of the Union extend to virtually all political matters; indeed,the acquis communitaire is extremely extensive in breadth and scope. It has beencalculated that 84% of the new norms added to the legal order of each Member Statedo now originate in European law-making procedures.19 For two, Community normsprevail unconditionally over contrary national ones, except in those cases in which theycome into conflict with national constitutional norms (the so-called European consti-tutional conflicts).20As a result, virtually all national norms are potentially subject to areview of European constitutionality (to which we will come back in sections III and IVof this article). This renders it necessary to ensure the direct democratic legitimisationof Community law. Second, intergovernmental decision-making processes conveylimited derivative democratic legitimacy, because autonomous decision-making poweris exchanged for veto rights and for veto rights only. Once the Union has exertedlaw-making powers in a given subject area, Member States lose the capacity to intro-duce changes unilaterally. Even if the status quo is by far inferior to most alternativeswhich can be conceived, no change can be introduced in the absence of agreementamong the Member States. This prevents reflexive change and, as a consequence,favours the tyranny of what once was the general will of Europeans over the present

Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’, (2005) 11European Law Journal 262.

16 Key texts are G. Majone, Regulating Europe (Routledge, 1996); ‘Europe’s “Democratic Deficit”: TheQuestion of Standards’, (1998) 4 European Law Journal 5, especially at 16 ff.; Dilemmas of EuropeanIntegration (Oxford University Press, 2005). A powerful assessment in general democratic terms is inP. Rosanvallon, La Légitimité démocratique: Impartialité, reflexivité, proximité (Seuil, 2008).

17 Ibid, p. 23.18 J. Vignon, The Idea of a Good European Governance, paper presented at the Annual ARENA Conference

(Oslo, March 2002), available at http://www.arena.uio.no/events/Conference2002/documents/Vignon.doc. makes an explicit acknowledgment of Majone’s influence. The second variant of the weakdecoupling thesis has also influenced the way in which the European Central Bank has conceived of itsown role. See C. Zilioli and M. Selmayr, ‘The European Central Bank: An Independent SpecializedOrganization of Community Law’, (2000) 37 Common Market Law Review 591. However, this wasrejected by the European Court of Justice in Case 11/00, Olaf [2003] ECR I-7147.

19 Cf R. Herzog and L. Gerken, ‘Revise the European Constitution to Protect National ParliamentaryDemocracy’, (2007) European Constitutional Law Review 209, at 210.

20 It has become almost redundant to indicate that the principle was first enunciated in the judgment ofCase 6/64, Costa v Enel [1964] ECR 585. For the evolution and contours of the principle, see K. Alter,Establishing the Supremacy of European Law (Oxford University Press, 2001).



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general will of Europeans, even in those areas where Member States retain a veto power(precisely because prospective veto power entails a joint decision trap).21

B The Operationalisation of Democratic Legitimacy in the EU: The ComplexCharacter of the European Volonté Générale

The second basic thesis of this article is that the democratic legitimacy of the EU needsto be assessed by reference to a nuanced yardstick, which takes proper account of theway in which the principle of democratic legitimacy is operationalised in complexpolitical communities, such as the Member States of the EU, and the EU itself. Inparticular, two premises should structure the criteria of European democratic legiti-macy, namely (1) the composite character of democratic legitimacy and, specifically,the distinction of its three key components: procedural legitimacy, substantive legiti-macy and adjudicative legitimacy; (2) the tripartite division of legislative labour betweenconstitution-making, law-making and regulation-making processes.

a) The Composite Character of European Democratic LegitimacyThe constitutional operationalisation of the principle of democratic legitimacy must bebased on the acknowledgment of the composite character of democratic legitimacy.Democracy is intimately related to inclusive deliberation and decision-making pro-cesses, but when embodied in a legal form is also dependent on the protection ofsubstantive contents (first and foremost, fundamental rights)22 and on the grantingof subjective guarantees to all citizens in the process of application and adjudication oflegal norms into concrete rules applicable to specific cases.23 On such a basis, it is properto distinguish three pillars of democratic legitimacy, namely procedural, substantiveand adjudicative legitimacy.

First, the core of democratic legitimacy is procedural legitimacy, or what is the same,the right of all citizens to participate in the deliberation and decision-making stages ofthe law-making process. Democratic politics assumes that decisions must be taken, butalso that legitimacy is closely tighten to the deliberation which precedes actual decisionmaking. In the next section I will defend that political rights should be atuned to thenormatively required division of legislative labour between constitution-making, law-making and regulation-making processes.

Second, the democratic principle points to a thin substance24 which grounds thevalue of procedural democracy itself.25 This explains the close connection betweendemocratic legitimacy and the guarantee of certain substantive values (substantive

21 F. W. Scharpf, ‘The Joint Decision Trap: Lessons from German Federalism and European Integration’,(1988) 66 Public Administration, 239–78.

22 R. Alexy, ‘Discourse Theory and Human Rights’, (1996) 9 Ratio Juris 209.23 R. Alexy, A Theory of Legal Argumentation (Oxford University Press, 1989); A. Aarnio, The Rational as

Reasonable (Kluwer, 1987); N. D. MacCormick, Legal Reasoning and Legal Theory (Oxford UniversityPress, 1978) and Rhetoric and the Rule of Law (Oxford University Press, 2005).

24 D. Estlund, ‘Making Truth Safe for Democracy’, in D. Copp, J. Hampton and J. Roemer (eds), The Ideaof Democracy (Oxford University Press, 1993), 71; ‘Beyond Fairness and Deliberation: The EpistemicDimension of Democratic Authority’, in J. Bohman and W. Rehg (eds), Deliberative Democracy:Essays on Reason and Politics (MIT Press, 1997), 173; ‘The Insularity of the Reasonable: Why PoliticalLiberalism must Admit the Truth’, (1998) 108 Ethics 252.

25 This substance is not fully external or independent from the democratic procedure itself, as it points to thevery pragmatic assumptions we make when we enter into real processes of democratic deliberation anddecision making.



legitimacy). The paradigmatic institutionalisation of substantive legitimacy is the affir-mation of fundamental constitutional rights, which mandate certain substantivecontent to the legislature.26 The protection of this substance should not be regarded asan alternative to actual democratic decision making, but as an inducement and guar-antee of democratic decision making. Indeed, the entrenchment of fundamental rightscan provide a substantive check to imperfectly democratic decisions, acting as a cor-rective proxy.

Third and finally, democratic legitimacy relies on adjudicative legitimacy. There arevery good reasons why authoritative adjudication is to be trusted to judges; the first andforemost of such reasons is that judicial rulings are the most likely means to protect theright of all citizens to be equal before the law. But it is obvious that the power of judgesto settle hard cases, which unavoidably entails a marginal discretion to author deriva-tive legal norms, brings about issues of democratic legitimacy, at least in those systems(such as European ones) in which most judges are not chosen through proceduresdesigned to ensure political representativeness. Theories of legal argumentation estab-lish criteria of sound reasoning and justification that render the exercise of discretionmore transparent and more easily reviewable in an inter-subjective manner, but cannoteliminate a certain freedom of choice of magistrates, for both structural and epistemicreasons.27 As a consequence, the democratic legitimacy of assigning to judges the lastadjudicative word is closely dependent on the subjective guarantees offered to indi-viduals to address and influence courts. Such rights protect not only the subjectiveindividual interest in the integrity of the fundamental rights of the plaintiff, but also acollective interest in an exercise of judicial powers which complements the procedurallegitimacy of statutes and does not undermine it.

b) The Three-Fold Distinction within the Principle of DemocraticLegitimacy: Constitution, Statutes and Statutory RegulationsThe second premise that structures the present assessment of the democratic legitimacyof the EU affirms that the principle of democratic legality must be disaggregated; inparticular, account should be taken of the fact that procedural legitimacy results froma division of legislative labour between three main types of norm-making procedures,namely constitution-making, law-making and regulation-making, characterised bothby a different intensity of democratic legitimacy and by the hierarchical ranking of thenorms being produced by them.28

The fundamental normative justification of this three-fold operationalisation of theprinciple of legality is the need of combining the steering of social relationships throughlegitimate democratic law with the right of individuals to private autonomy (which maybe overtaxed if they have to be permanently active in politics) and with the infusion ofthe best inter-subjective knowledge available into legal norms. By means of distinguish-ing different norm-making processes and ranking them hierarchically by reference tothe democratic legitimacy they transmit to the norms produced through them, we makeit possible to reduce the degree of political commitment of citizens; at the same timethat we create the structural conditions under which normative steering can be based on

26 Cf, eg, R. Alexy, A Theory of Constitutional Rights (Oxford University Press, 2002), at 350.27 ibid, at 394 ff.28 Such a three-fold distinction is no other one than the characteristic of most national constitutional orders.

See A. Türk, The Concept of Legislation in European Community Law. A Comparative Approach (Kluwer,2006).



technical and expert knowledge without the latter subverting the volonté générale. Fullyinclusive political participation is only required at the constitutional level, is voluntaryat the legislative level and is effected indirectly at the regulatory level.

Constitution-making processes are characterised by their highly inclusive character,which guarantees the basic identity between authors and subjects to constitutionalnorms. Citizens should indeed be capable of identifying themselves as potential authorsof their constitution for it to be democratically legitimate.29 Constitutional authorshipis a proper operationalisation of the regulative ideal of normative isonomy at large,provided that two conditions are met. First, that constitutional norms establish thebasic framework of validity of all other legal norms, giving concrete legal form to thebasic values which underpin democracy as a political form (the ‘thin’ substance whichwas referred above), and to the key socio-economic choices made by the politicalcommunity; at the same time, the fundamental law should define the basic contours ofboth law and regulation making. Second, that the higher democratic legitimacy of theConstitution comes hand in hand with its primacy over all other legal norms, bothwhen normative conflicts are to be solved and when criteria of interpretation are to besettled. If these two conditions are met, democratic legitimacy is radiated from theConstitution to ordinary statutes and regulations, thus playing a substitute legitimatingrole to the identification of normative author and subject in norm-making processes.

The democratic legitimacy of statutes stems from the fact that ordinary law-makingprocesses are the key conduit for the discussion and testing of political preferences.Democratic law making enables strong publics to mediate the preferences of generalpublics, by making decision making reflective of, and reactive to the political prefer-ences of citizens at large, at the same time that it filters and tests the said preferences.30

The democratic legitimacy of ordinary statutes is prima facie lower than that of con-stitutional norms, for the simple reason that ordinary law making tends to be far lessinclusive. Not only are citizens’ voices highly mediated through their representatives(which may eventually decide against the will of their principals), but the overall degreeof public participation and scrutiny can be lower (and tends to be so). This is whyordinary law-making processes are indeed framed by constitutional norms, both inprocedural and substantive terms.

The ordinary law-making processes need to be complemented by regulative pro-cesses, in which the essential elements of statutes are rendered precise and concrete inrelation to their specific scope of application. The very breadth and scope of integrationthrough law in modern societies requires this further division of normative labour.Were the integrative functions of law to be discharged exclusively through constitu-tional norms and statutes, not only would such decision-making processes be literallyflawed, but it would also be much harder to incorporate expert and specialised knowl-edge in the legal regulation of society. This is why not only a third type of laws is

29 See B. Ackerman, ‘The Storrs Lectures: Discovering the Constitution’, (1984) 94 The Yale Law Journal1013; ‘Constitutional Politics/Constitutional Law’ (1989) 99 Yale Law Journal 453; We The People(Harvard University Press, 1991 and 1997); C. Santiago Nino, The Constitution of Deliberative Democracy(Yale University Press, 1996).

30 See N. Fraser ‘Rethinking the Public Sphere. A Contribution to the Critique of Actually ExistingDemocracy’, in C. Calhoun (ed), Habermas and the Public Sphere (The MIT Press, 1992), 109–142;E. Oddvar Eriksen and J. E. Fossum, ‘Democracy through Strong Publics in the EU?’, (2002) 40 Journal ofCommon Market Studies 401; Conceptualising European Public Spheres: General, Segmented and StrongPublics, Working Paper ARENA 3/04; and H. Brunkhorst, ‘Globalising Democracy without a State: WeakPublic, Strong Public, Global Constitutionalism’, (2002) 31 Millenium: Journal of International Studies 675.



distinguished, but the processes through which they are elaborated are radically dif-ferentiated from constitutional and ordinary law making. The democratic legitimacy ofthese norms is essentially indirect, stemming from the fact that constitutional normsand ordinary statutes contain the basic normative choices and leave to regulatoryinstruments the selection of the means to achieve such ends, and by the fact that suchprocesses are monitored by the ordinary law maker.

c) Representative and Deliberative Democratic TheoriesIt may be pertinent to add that the two premises discussed in this section have beenintentionally formulated in a rather ecumenical fashion, so that they can be supported byadvocates of different conceptions of democracy, and, in particular, by backers of bothrepresentative and deliberative understandings of democracy. It is not my intention todeny that there are major and very important differences between various theories ofdemocracy.31 And it is perhaps proper to inform the reader that the author of this articleis a committed advocate of deliberative democracy in what may be labelled a ‘radicaldemocratic’ fashion.32 But it also seems to me that for applied purposes (and assessing thedemocratic legitimacy of the EU is one), these differences can be properly bracketed. Inparticular, one could see the emphasis on processes of will formation and the alternativefocus on the depth and breadth of the deliberation that precedes any decision as the twosides of the very same coin. It is not too adventurous to claim that partisans ofdeliberative democracy have no principled reason to deny that representation andmajoritarian decision making are necessary means to operationalise the democraticideal.33 Similarly, supporters of representative democracy should find no serious objec-tion to deliberative democratic ideals if understood as providing the soundest theoreticalfoundation of the institutional mechanisms of representation and will formation typi-cally enshrined in the constitutions of the Member States of the EU.34

III The Democratic Surpluses of the EU

In this section I consider the six main sources of democratic legitimacy of the EU,namely (1) the national ‘enabling’ constitutional clauses on the basis of which nation

31 There is a huge difference between, say, the conception of democracy of J. A. Schumpeter (Capitalism,Socialism and Democracy (Harper and Brothers, 1942)) and that of D. M. Estlund, Democratic Authority(Princeton University Press, 2008). Still, advocates of both conceptions could agree on the two premisesthat have been presented in this section.

32 Perhaps the best and pungent argument is to be found in H. S. Richardson, Democratic Autonomy (OxfordUniversity Press, 2002), at 27 ff. See also W. Nelson, On Justifying Democracy (Routledge and Kegan Paul,1980); ‘The Institutions of Deliberative Democracy’, (2000) 17 Social Philosophy and Policy 181; J. Cohen,‘Deliberation and Democratic Legitimacy’, in J. Bohman and W. Regh, Deliberative Democracy (The MITPress, 1997), 67–91; J. Bohman, ‘Deliberation and Democracy’, in J. Bohman (ed), Public Deliberation (TheMIT Press, 1996), 1–21; R. Lummis, Radical Democracy (Cornell University Press, 1996).

33 See Richardson, ibid.34 Representative democratic theory assigns a key role to argumentation both among citizens and within the

arenas of representation. The timing and formal organisation of electoral contests is intended to enhancethe chances for cross-examination of political arguments (even if practice may fall well short of such anideal). This is the reason why, eg, many national electoral laws establish not only financial but alsotemporal limits to political advertising, designating the day before polling as ‘reflection day’, during whichno more campaigning is allowed. Similarly, representative institutions and their decision-making proce-dures are concrete manifestations of argumentative ideals, intended to ensure the testing and clarificationof arguments in the court of public reason. Indeed, the rules of procedure of national parliaments can beread as concrete manifestations of the very idea of public reason.



states became Member States of the Union; (2) the secondment of national constitu-tions as the collective ‘deep’ constitution of the EU; (3) the institutional actors anddecision-making set up characteristic of the two standard law-making processes of theUnion; (4) the comitology procedures to draft regulations and statutory instruments;(5) the expansion of the breadth and scope of the right to equality resulting from thereview of the European constitutionality of national laws by reference to Communityfundamental rights and economic freedoms; and (6) last but not least, the proceduralsubjective rights through which citizens influence the process of application and adju-dication of Community norms.

A The Constitutional Mandate to Integrate, or Why European Law is aMeans of Realising the Democratic Principle

The first source of democratic potential of the EU is to be found in the nationalconstitutional mandate to integrate explicitly or implicitly enshrined in the constitu-tions of all Member States; this does not only imply that integration is constitutionallysanctioned, but also reveals the democratising potential of the Union. The very size andscope of its institutional structure and breadth of its decision-making process create theconditions under which it is possible to recouple the constituency of those affected bylegal norms and that of those who have the chance to deliberate and decide on the saidnorms.

It is a fact that national borders cut across intense webs of supranational societalrelationships, which have been genuinely transnational for centuries. The integration ofa de facto European society by fully independent national legal orders is bound to giverise not only to dysfunctionalities (which could still be mitigated through the smartdesign of national rules of private international law)35 but also to huge democraticshortcomings. By affirming themselves as unbounded sovereigns, the classical Westpha-lian nation states could affect the lives of nationals of other European states, whiledenying them any say over the relevant decisions. In the last century, Europeans havelearned from two successive disasters that a system of sovereign nation states can endup undermining national democratic systems, and bring about confrontation andlarge-scale war.36 Quite obviously, the causal chain leading to the two world wars of thetwentieth century is a large and complex one, but it is hard to escape the conclusion thatthe lack of a common institutional framework, and of common norms of action whichcould solve conflicts and coordinate action in view of common goals, played a relevantrole in the unleashing of the conflicts.37

The unrealised democratic potential of a common law underlies the numerous ini-tiatives to establish supranational institutions in the post-war era, especially withregard to economic issues. Trade was perceived to be extra-territorial policy par excel-lence.38 However, it is important to keep in mind that the establishment of common

35 The need for some degree of coordination of national legal systems was felt from the very early nineteenthcentury, and even by some of the champions of nation states, such as Pasquale Stanislao Mancini (see hisDella nazionalità come fondamento del diritto delle genti, reissued recently (Giappichelli, 2000)).

36 J. Habermas, ‘Learning by Disaster? A Diagnostic Look on the Short Twentieth Century’, (1997) 5Constellations 307.

37 A key advocate of this claim was John Maynard Keynes; see The Economic Consequences of the Peace.Vol II of Collected Writings of John Maynard Keynes (MacMillan, 1971).

38 Department of Economic Affairs of the United Nations, Customs Unions: A League of Nations Contri-bution to the Study of Customs Union Problem (United Nations, 1947).



commercial norms was not perceived as an end in itself, but as a means to ensure thepeace, stability and prosperity of the continent. This connects post-war integrationinitiatives with the enlightened idea of integration through law,39 revived by the ‘nor-mative’ thinkers of international law in the first half of the twentieth century.40

This realisation was first translated into legal language in the national constitutionswritten in the immediate aftermath of the Second World War. If we limit ourselves tothe fundamental laws of the founding members of the Communities, five out of six41

contain innovative international clauses which not only authorised, but also mandated,supranational integration at the time of the signing and ratification of the RomeTreaties in 1957.42 These international and proto-European constitutional clauses mustbe regarded not only as the late fruit of democratic and cosmopolitan conceptions ofinternational law, but also as forerunners of the explicit European clauses that havebeen introduced in the constitutions of many Member States.43

To the extent that the EU is the closest realisation of the mandate to integrateenshrined in the said national constitutional clauses, European law must be seen asenjoying democratic legitimacy because it is the means of choice through whichnational constitutions intend to create structural conditions favourable to the realisa-tion of the democratic principle.

Indeed, integration through law has the potential to create the conditions underwhich the structural democratic problem of the system of nation states may be

39 See, among others, A. Saint Pierre, Abrégé du projet de paix perpétuelle (J.-D. Beman, 1729); I. Kant,‘Toward Perpetual Peace’, in I. Kant (ed), Practical Philosophy (Cambridge University Press, 1996),311–351.

40 H. Kelsen, ‘Les rapports de système entre le droit interne et le droit internationale public’, (1926) 14Recueil des Cours 227; J. G. Starke, ‘Monism and Dualism in the Theory of International Law’, (1936)17 British Yearbook of International Law 66; B. Mirkine-Guetzévitch, ‘Droit International et droitconstitutionnel’, (1938) 38 Recueil des Cours 311; U. Campagnolo, Nations et Droit (Felix Alcan, 1938);A. Rolin, Les Origines de l’Institut de droit international (1873–1923): Souvenirs d’un témoin(Vroment, 1923). A concrete application to Europe before the Second World War is documented inB Mirkine-Guetzevicth and G. Scelle (eds), L’Union Européenne (Librairie Delagrave, 1931). In the warperiod, see H. Kelsen, Peace through Law (University of North Carolina, 1944); in the post-war,H. Kelsen, The Law of the United Nations (Stevens and sons, 1950); A. Ross, Constitution of the UnitedNations (Munksgaard, 1950).

41 See Preamble of the 1946 French Constitution; Art 11 of the 1947 Italian Constitution; Art 24 of theGerman Constitution; It must be added that even if the Luxembourgeois constitution did not still containanything vaguely resembling a proto-European clause, the Conseil d’Êtat constructed its fundamental lawwith the same purpose in mind. In the Avis du Conseil d’Êtat of 9 April 1952, available at http://www.ena.lu?lang=1&doc=9644, it was claimed that the Duchy could and should renounce sovereignpowers if the public good so required (as indeed was the case). By 1957, both the Dutch and theLuxembourgeois constitutions had been amended. See Arts 63 and 67 of the Dutch Constitution asamended in 1953; cf J. H. F. van. Panhuys, ‘The Netherlands Constitution and International law’, (1953)47 American Journal of International Law 537; and Art 49a of the Constitution of Luxembourg.

42 These clauses were original in comparative constitutionalism because they contemplated the activeparticipation of the state in multilateral international institutions, which necessarily implied a collectiveexercise of public powers and, consequently, the transfer of sovereign powers to multilateral organisa-tions. In contrast, ‘classical’ international clauses limited themselves to regulating the way in whichtreaties should be negotiated, signed and ratified, and the place they should occupy within the nationalsystem of legal sources.

43 On European clauses, see M. Claes, ‘Constitutionalising Europe at its Source’, (2005) 24 Yearbookof European Law 81 and C. Grabenwarter, ‘National Constitutional Law Relating to the EU’, inA. Von Bogdandy and J. Bast, Principles of European Constitutional Law (Hart, 2006), 95–144; on morerecent clauses, see A. Albi, ‘ “Europe” Articles in the Constitutions of Central and Eastern EuropeanCountries’, (2005) 42 Common Market Law Review 399.



http://www.ena.lu?lang=1&doc=9644

http://www.ena.lu?lang=1&doc=9644

overcome. Certainly, and as will be seen in extenso in the fourth section of this article,integration through law is not by itself a guarantee that democracy will be realised. Butmy point here is indeed a very modest one, and is circumscribed to the democraticpotential of European law. Because the EU can be regarded as a concrete institutionalembodiment of the ideal of integration and peace through law, it can legitimately claimto have a democratising potential.

It could be objected that the innovative international clauses of the post-war periodcontained no explicit reference to either European integration or to the treaties estab-lishing the three original European Communities; thus, they could not ground thedemocratic legitimacy of the EU. However, this lack of specificity does not underminemy present claim. A precise allusion was in most cases simply impossible given that thenational constitutions were approved before any of the European communities wereestablished. In all cases, it would have been inappropriate to make such referencesbefore concrete institutions became consolidated. Several alternative projects ofEuropean integration were launched in the aftermath of the war.44 If, and only if,‘supranational’ constitutional clauses were abstract enough could they be used in orderto (eventually) ratify as many treaties as needed before a really successful set ofcommon institutions took hold. Because the founding Treaties actually rendered itpossible to transcend the system of sovereign nation states, they were democraticallyendorsed, so to speak, by the integration clauses of national constitutions.

B The Common Constitutional Traditions

The second source of the democratic legitimacy of the EU is the secondment of nationalconstitutions as the fundamental set of constitutional norms of the supranational legalorder. This double constitutional role of national fundamental laws derives from thesynthetic character of the process of European legal integration.

It is widely accepted that the EU is a constitutional legal order, but it is far fromobvious why this is so, how it became so, and whether the outcome is to be regarded asadding to, or diminishing from the democratic legitimacy of the EU. The EuropeanCommunities were established as international organisations, and their legal orderseemed to have been constructed in the template of international law. Indeed, there hasbeen no actual exercise of a European constituting power, either collectively or as anaggregation of national powers . The Union misses so far a constitutional moment, orto put it differently, we can speak of European constitutional law, but hardly ofEuropean constitutional politics.45 On such a basis, one may be tempted to assume thatthe lack of a written constitution, and of a democratic constitution-building process, isat the core of the democratic troubles of the EU.

But reaching such a conclusion would be precipitated. The process of European legalintegration has neither been one based on the revolutionary establishment of a demo-cratic constitution, nor one of evolutionary outgrowth of an international legal orderinto a constitutional one, but one of progressive ‘synthesis’ of national constitutionalorders. Or what is the same, European legal integration has consisted in the establish-ment of a new supranational constitutional legal order into which national legal ordersare expected to merge progressively; but in the meantime, the constitutional identity ofeach national legal order is preserved, even if it has been unavoidably transformed.

44 Cf, eg, E. Haas, ‘The United States of Europe’, (1948) 48 Political Science Quarterly 528.45 M. Shapiro, ‘Comparative Law and Comparative Politics’, (1980) 53 Southern California Law Review 537.



National constitutional norms do neither disappear, nor are transformed in theirsubstantive content or validity basis. What is usually missed is that this process ofconstitutional synthesis reveals a democratic alternative to the exercise of the pouvoirconstituent for the establishment of a political community. Such an alternative is noother than the very idea of a ‘common constitutional law’ as a temporary substitute ofa written democratic constitution. What is indeed characteristic of European integra-tion is that the collective of national constitutional norms has been seconded as thefundamental set of constitutional norms of the EU.46 This process is not based on themere juxtaposition of national norms on the basis of the common minimum constitu-tional denominator, but on a genuine combination, in which idiosyncratic and deviantnational norms are at the end of the day expelled from the European (and the national)canon of constitutionality.47

The best known instance of constitutional synthesis is the Community principle ofprotection of fundamental rights, which the Court of Justice reminded us, in its line ofcases starting in Stauder,48 was an unwritten principle stemming from the commonconstitutional traditions of the Member States which had been part and parcel ofCommunity law since its very inception.

The process of constitutional synthesis results in national constitutional norms trans-mitting their democratic legitimacy to the synthesising European norms, which in turnradiate such legitimacy to all infra-constitutional norms of the European legal order,given that their validity is conditioned to their European constitutionality. Or to put itdifferently, the legitimising role played by the standard democratic process of consti-tution making is substituted in the EU by the transference of the democratic legitimacyof the common constitutional norms of the Member States to European constitutionallaw.

The legitimising role of the common constitutional traditions is not only capable ofexplaining the legitimacy of characterising the EU as a constitutional order (as itimplies that there has not been any radical constitutional rupture, but only the pro-gressive realisation that the constitutional law of the Union is contained not only andnot mainly in its founding Treaties, but in the constitutional law common to theMember States), but also the actual democratic legitimacy of Community norms. Tothe extent that the validity of all European norms is dependent on their compatibilitywith supranational constitutional law, and such law is formed by the collective ofhighly democratic national constitutions, there is a transfer of legitimacy from nationalconstitutional norms to European norms.

C Ordinary Law Making

The third source of democratic legitimacy of the EU is the legitimacy generatingcapacity of Community law-making processes. Both the standard Community methodand the co-decision procedure enhance deliberation upon European policies, and

46 K. Lenaerts, ‘Le droit comparé dans le travail du juge communitaire’, (2001) 37 Revue Trimestrelle duDroit Européen 487.

47 Although European integration results in the transformation of both substance and validity, but inindirect ways.

48 See Case 29/69, Stauder v City of Ulm [1969] ECR 419, para 7: ‘Interpreted in this way, the provision atissue contains nothing capable of prejudicing the fundamental rights enshrined in the general principles ofCommunity law protected by the Court’ (emphasis added) and Case 11/70, Internationale [1970] ECR 1125.



ensure a chain of democratic legitimacy linking each regulation and directive witheither the aggregate general will of Member States (as is the case in the Communitymethod) or with a composite made of the qualified majority of aggregate national willsand the majoritarian will of the direct representatives of European citizens sitting in theEuropean Parliament.49

As is well known, the founding Treaties established permanent European institutionsand assigned to them law-making powers;50 in concrete, European institutions weremade competent to issue regulations and directives. The very name of the said legal actscomforted those who conceived the Communities as a supranational agency (a view towhich the advocates of the weak decoupling thesis still subscribe), and consequentlydefended that Community acts were to be conceived as regulatory norms implementingthe founding Treaties (themselves to be constructed as the framework laws of theCommunities).51 However, the substantive questions to which regulations and direc-tives were to be applied starkly contradicted the characterisation of regulations anddirectives as mere implementing norms. Community law was supposed to regulatematters explicitly reserved in national constitutions to parliaments.

The ensuing tension was solved in constitutional practice in favour of the charac-terisation of regulations and directives as statutes in a ‘material sense’.52 This solutionwas rendered possible by the fact that the ordinary Community method of law makingguaranteed the transmission of legitimacy from democratic national decision-makingprocesses to supranational ones, by means of defining the European general will as theunanimous aggregation of national general wills as expressed by national governments,in their turn accountable before national parliaments for their European decisions. Ifthe vote of each national representative in the Council infuses the decision with demo-cratic legitimacy, it is because it acts as the speaker of a national general will, forgedthrough a democratic process in each and every Member State.

Since the Maastricht Treaty, an alternative definition of the general European willhas been established. The so-called co-decision procedure grants the EuropeanParliament co-legislative powers by means of adding new procedural steps on top ofthose characteristic of the ordinary Community decision-making process. In mostcases, this goes hand in hand with the redefinition of the voting rules according towhich national common wills are aggregated in the Council; a qualified majority ofvotes, not unanimity, is now sufficient for forming a positive Council will. At any rate,the fact that no proposal can be turned into law if the European Parliament votesagainst it, entails that where co-decision is applied, the general European will is

49 There is a plurality of specific law-making procedures of Community law; a vast majority of them can becharacterised as variants of the two main types: the classical Community method and co-decision. Seethe empirical analysis in F. Losada and A. J. Menéndez, ‘Toma de Decisiones en la Unión Europea’, inF. Rubio and P. Biglino (eds), El Informe del Consejo de Estado sobre la inserción del derecho comunitarioen el ordenamiento español (Consejo de Estado and Centro de Estudios Políticos y Constitucionales,2008), 339–471.

50 This, it can be argued, was part and parcel of the argument of European Court of Justice in Costa v Enel[1964] ECR 585.

51 See, eg, the opinion of Advocate General Lagrange in Case 6/64, Costa v Enel [1964] CMLR 425, at 442,characteristing the EEC Treaty as a ‘loi-cadre’.

52 The very fact that in many cases directives are transposed through national statutes approved byparliaments furnishes us with solid evidence. In the jurisprudence of the European Court of Justice thisbecomes crystal clear when considering the ‘division of labour’ which should prevail between regulationsand directives and ‘implementing’ regulations and directives produced through ‘delegation of powers’ tocomitology committees. In that regard, see the judgment in Case 25/70, Köster [1970] ECR 1161.



defined as a composite general will: the will of a qualified number of national generalwills, as aggregated in the Council, plus the will of the majority of the direct repre-sentatives of European citizens. In democratic terms, this ‘double majority’ reflects thefederal character of the EU, to the extent that aggregated national wills are necessaryto form a general European will, but such a will can be forged even if some nationalgovernments oppose the measure.53

The democratic legitimacy of regulations and directives is supplemented by thestructural democratising effects of the establishment of a supranational legal order.European laws are alternatives to undemocratic national norms, to the extent that theyhave major effects across borders but national political processes exclude non-nationalsaffected by the laws from the law-making process. Moreover, European norms replacein many cases what de facto were privately made norms of a dubious democraticlegitimacy. This was very clearly the case with both the Treaty which established theCoal and Steel Community and the secondary law which evolved afterwards, given thatit reappropriated for public institutions powers which had slipped into the hands ofprivate cartels;54 it certainly is also the case in many concrete areas of the economicregulation produced by the Communities.

D The Specific Means of Implementing Laws in Union Law: Comitology as aMeans of Producing Regulations

The fourth source of democratic legitimacy of Community law is to be found in thedemocratic properties of the process of implementation of regulations and directivesthrough comitology decisions. In particular, comitology ensures a higher democraticlegitimacy of the resulting statutory regulations than classical national regulatoryprocesses.

The founding Treaties of the Communities did not foresee any decision-makingprocedure through which regulations and directives could be specified and concretised(ie implemented). However, it was soon realised that the ordinary Community decision-making process would collapse if it was required to generate the huge number of normsneeded to realise the objectives of the Treaties, especially in fields such as agriculturalpolicy.55 The members of the Council could not spend their time doing that if theywanted to perform their main job properly, which was being national ministers. Timemanagement was indeed a key reason behind the transformation of the Council froma single body into a hierarchical trinity consisting of (1) the Council of Ministersproper; (2) the Committee of Permanent Representatives;56 and (3) a number of spe-cialised preparatory committees and a series of working groups.57 However, not even

53 See K. Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’, (1991) 28Common Market Law Review 11 and S. Oeter, ‘Federalism and Democracy’, in A. Von Bogdandy andJ. Bast (eds), Principles of European Constitutional Law (Hart, 2006), 53–93.

54 P. Reuter, La Communauté européen du charbon et du acier (LGDJ, 1953).55 F. Snyder, ‘The Use of Legal Acts in EC Agricultural Policy’, in G. Winter (ed), Sources and Categories

of EU Law (Nomos, 1996), 347–384.56 Cf E. Noël ‘The Committee of Permanent Representatives’, (1967) 6 Journal of Common Market Studies

219.57 J. Beyers and G. Diericks, ‘The Working Groups of the Council of the EU: Supranational or Inter-

governmental Negotiations’, (1998) 36 Journal of Common Market Studies 289; E. Fouilleux,J. de Maillard and A. Smith, ‘Technical or Political? The Working Groups of the EU Council ofMinisters’, (2005) 12 Journal of European Public Policy 609.



this trinity could recruit the expertise and specialised knowledge that was needed inorder to produce effective implementing regulations and directives.

The combination of functional requirements and the absence of a constitutionallyembedded regulatory decision-making process led to outright experimentation underthe formal cover of ‘delegation of powers’. The Council ‘delegated’ law-making powerto the Commission, while at the same time placing it under the control of the nationalrepresentatives who formed the bulk of the committees.

Comitology contributes to the democratic legitimacy of the EU in two differentrespects. First, it guarantees that the very institutions which are assigned key decision-making powers in law-making procedures can exert a degree of control over thecontents of implementing norms without having to discharge the task directly. This wasalways the case with regard to the Council, and is now also the case (after the adoptionof the new Comitology decision in 2006), with regard to the European Parliament,although with certain limitations.58 True, the division of labour between statutes andregulations is far from neat in European Community law, in part as a consequence ofthe refusal of the European Court of Justice to affirm the hierarchical character of therelationship between, on the one hand, regulations and directives and, on the otherhand, implementing norms.59 This may occasionally result in implementing normswhose substantive content would require resorting to standard law-making procedures.Still, the fact that the Council and the European Parliament can monitor committees(and eventually ‘call back’ their law-making powers) justifies the conclusion that comi-tology is a way of writing implementation norms ensuring both democratic input andmaximisation of the chances of getting at the substantively correct norm.60 Second,comitology committees are composed of representatives of national governments whocontribute through their technical, scientific or local knowledge to the quality of theresulting norms. It has been observed that their own identities as providers of scientific,technical or local knowledge tend to foster a deliberative logic of interaction within thecommittees.61 All these features of comitology contribute directly and indirectly to theimpartiality and fairness of implementing regulations and directives.

E Legitimacy through Substance: Economic Freedoms, Fundamental Rightsand the Review of European Constitutionality

The fifth source of democratic legitimacy of the EU is the practice of reviewing thevalidity of all national norms by reference to the canon of European constitutionalitymade of the fundamental rights (stated explicitly by European Court of Justice in itscase-law, and lately codified in the Charter of Fundamental Rights) and the economicliberties (free movement of goods, free movement of workers, freedom of provision ofservices and of establishment, plus the principle of free and undistorted competition).

58 See M. Alfé, T. Christiansen and S. Piedrafita, Twenty-First Century Comitology: The Role of Imple-mentation Committees in the EU27’, available at http://www.arena.uio.no/events/seminarpapers/2007/Thomas_Christiansen.pdf.

59 Cf the judgment in Case 41/69, ACF Chemiefarma [1970] ECR 661, paras 60–62.60 An analysis of similar problems by reference to a different legal order can be found in B. Ackerman, ‘The

New Separation of Powers’, (2000) 113 Harvard Law Review 633.61 C. Joerges and J. Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes: The

Constitutionalisation of Comitology’, (1997) 3 European Law Journal 273; C. Joerges, ‘DeliberativeSupranationalism: Two Defenses’, (2002) 8 European Law Journal 133.



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The constitutional review of all European laws contributes to the democratic legiti-macy of the EU because it shelters all European citizens against discriminatory treat-ment on basis of nationality. Community fundamental rights and economic libertiesoperationalise the right of a resident or economically active non-nationals to be treatedin the same way that nationals are dealt with; a right which is more likely to be infringedthan that of citizens for the very simple reason that European non-nationals are deniedthe right to vote in national elections and, as a consequence, lack in most cases directmeans to influence the actual content of legislation. Their right not to be discriminatedthrough the enjoyment of Community fundamental rights and economic liberties com-pensates the democratic pathology stemming from the mismatch between the circle ofthose affected by national laws and those entitled to participate in the deliberation anddecision making over national laws.62

Although formally claiming to limit themselves to the interpretation of Communitylaw, both the European Court of Justice and national courts have engaged in thepractice of European constitutional review of national legislation for a long time, andat the very least since the ruling of the Luxembourg Court in Van Gend en Loos,63 andthe acceptance of the implications of the rulings in both Van Geed en Loos and Costaby national courts.64 Formally speaking, this power is said to be grounded on theTreaty provision which mandates the Court of Justice to become the guardian of theTreaties in their interpretation and application,65 and thus review the ‘legality’ of allacts of Community institutions.66 The development of the canon of European consti-tutionality has proceeded through the affirmation of the binding character of specificrules contained in the Treaties (Van Gend en Loos), later extended to principlesenshrined in the Treaties (Augusta Stier)67 and, finally, to unwritten constitutionalprinciples of Community law (Internationale).68 Since then, the court has not only

62 This is perhaps the core implication of Weiler’s principle of constitutional tolerance. See J. H. H. Weiler,‘Federalism and Constitutionalism: Europe’s Sonderweg’, in R. Howse and K. Nicolaidis (eds), TheFederal Vision (Oxford University Press, 2002), 54–70.

63 Cf Case 26/62, Van Gend en Loos [1963] ECR 1; Case 6/64, Costa [1964] ECR 585. Primacy of Communitylaw was explicitly said to enjoy primacy over all national norms (and to entail a power of ‘decentralised’constitutional review in the hands of all national courts) in Simmenthal II [1978] ECR 629, para 21. In atleast three cases the European Court of Justice has left aside national constitutional norms in conflict withCommunity norms; see Cases C-183/91, Commission of the European Communities v Hellenic Republic[1993] ECR I-3131 (where the European Court of Justice rules that a Greek constitutional norm shouldbe set aside); Case C-473/93, Commission of the European Communities v Grand Duchy of Luxemburg[1996] ECR I-3207 (the rule being set aside is part of the Constitution of Luxembourg); and CaseC-285/98, Kreil [2000] ECR I-69 (the conclusions of the court can only be upheld in defiance of the clearliteral tenor of the German Constitution).

64 Alter, op cit n 20 supra.65 Article 164 TEC: ‘The Court of Justice shall insure that in the interpretation application of this Treaty the

law is observed’.66 Something which the court claimed did comprise the acts of Member States, which implement or subject

to exceptions Community norms.67 See Joined Cases 28, 31, 25, 27, 13, 7 and 20/67, Molkerei Zentrale [1968] ECR 143.68 It has become commonplace to claim that the court acted in these two cases moved by the wish to preserve

the primacy of Community law, put into question by the ordinary Italian and German judges who hadinsisted upon the primacy of national fundamental rights over conflicting Community norms. By affirm-ing that there was a basic, albeit unwritten, principle of protection of fundamental rights at the basis ofCommunity law, the court internalised, so to speak, what was potentially a conflict between legal orders.Cf J. Coppel and A. O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’, (1992) 12 LegalStudies 227. But the move had deeper, and less instrumental or self-interested, constitutional implications.Cf P. Pescatore, ‘Les Droits de l’Homme et l’Integration Européenne’, (1968) 4 Cahiers de droit européen



expanded the breadth and depth of the canon of constitutionality (essentially, byspelling out the derivative rules stemming from the principle of protection of funda-mental rights69 and from each economic liberty)70 but has also enlarged the set ofnational norms which are eventually to be reviewed by reference to the Europeancanon.71

The effective protection of both the fundamental rights and the economic libertiesenshrined in the Treaties can also be said to be a basic precondition for the effectiveprotection of all fundamental rights of all Europeans. The soundness of such a claim issupported by the tragic and dark history of the old continent in the last century.72

F Legitimacy through Procedural Rights

The sixth spring of the democratic legitimacy of the EU is the procedural guaranteesthat Community law grants European citizens and, in particular, the rights thatempower them to elicit the review of the European constitutionality of both suprana-tional and national laws; as well as the remedies to which they are entitled fromnational courts when their Community rights are infringed by national institutions and,rather often, by the national legislature.

First, the review of the European constitutionality of European and national laws isusually triggered by European citizens. In particular, individuals (and even more oftencorporations) might request national courts to set aside national laws on account oftheir incompatibility with Community constitutional standards (something whichnational courts can decide to do either on their own or after consulting with theEuropean Court of Justice through the preliminary request envisaged by Article 234TEC). More exceptionally, Europeans may request directly from the European Courtof Justice the annulment of a Community regulation or directive provided they canprove that the said norm affects them directly and individually, as required by Article230 TEC (a standard which is, however, rarely considered as satisfied by the EuropeanCourt of Justice).

Second, Community law has increased the procedural remedies available to Euro-pean citizens when rights granted to them by Community law are at stake. Originally,the peculiar federal character of the Communities implied that the design of theprocedures through which Community law was to be applied by national courts wasleft to the discretion of each Member State (applying anachronistically a concept only

629 and ‘Fundamental Rights and Freedoms in the System of the European Communities’, (1970) 24American Journal of Comparative Law 343; J. Weiler and N. J. S. Lockhart, ‘Taking Rights Seriously: TheEuropean Court and its Fundamental Rights Jurisprudence’, (1995) 32 Common Market Law Review 51and 579; and A. J. Menéndez, ‘Chartering Europe’, (2002) 40 Journal of Common Market Studies 471.

69 On the evolution of the case-law of the court on fundamental rights, and the progressive spelling out ofnew derivative fundamental rights norms, see, eg, J. Kühling, ‘Fundamental Rights’, in Von Bogdandyand Bast, op cit n 43 supra, at 501–547.

70 See J. Weiler, ‘The Constitution of the Common Market Place: Text and Context in the Evolution of theFree Movement of Goods’, in P. Craig and G. de Búrca, The Evolution of EU Law (Oxford UniversityPress, 1999), 349–376; M. Maduro, We the Court (Hart, 1998).

71 A development that was fostered by the court, but that was ultimately caused by the assignment of newcompetences areas to the Communities. Thus, the establishment of the third pillar ended up subjectingnational criminal law to the review of European constitutionality. Cf Case C-105/03, Pupino [2005] ECRI-5285.

72 See A. J. Menéndez, ‘Finality through Rights’, in E. O. Eriksen, J. E. Fossum and A. J. Menéndez (eds),The Chartering of Europe (Nomos, 2003), 30–47.



developed much later, it could be said that the design of legal procedures was part of the‘national constitutional identity’ of each Member State). However, autonomy on pro-cedural matters has been severely constrained as of late. It became evident that if leftunlimited, national procedural autonomy would seriously compromise both the effi-ciency of Community law and also the equality of all Europeans before commonEuropean norms; the court therefore moved to affirm that national autonomy is limitedby the principles of equivalence and effectiveness of national remedies.73 Equivalencerequires that national procedural remedies available in case of breach of a Communityright be no less favourable than those at the disposal of citizens when national rights areinfringed. Effectiveness casts the shadow of unconstitutionality upon national proce-dural norms which render impossible or too cumbersome the exercise of Communityrights.74 As a result, Community law has granted new remedies to individuals, by meansof declaring the European unconstitutionality of national norms which limit in unrea-sonable ways the time available to appeal,75 or set limits to arguing on the basis ofCommunity law at certain stages of the process,76 or constrain the right of access to acourt,77 or result in the denial of injunctions.78 The case-law seems to be bound to comefull circle as the court has started to affirm that national procedural systems shouldensure the effective judicial protection of citizens qua European citizens and subjects ofCommunity law.79

Procedural rights contribute to close the ‘democratic gap’ which unavoidably resultsfrom judicial adjudication. In particular, they increase the breadth and scope of theinterests being considered by both the European Court of Justice and national courtswhen reviewing the compatibility of national law with Community constitutionalstandards. In particular, it opens up the possibility that minority constituencies, whichare under-represented or simply unrepresented within each Member State, make theirvoices heard, and diminishes the chances that judicial decisions are based on an incom-plete account of the relevant facts at stake, or on a consideration of a too narrow set ofinterests.

IV The Democratic Shortcomings of the EU

The democratic surpluses of the Union come hand in hand with four democraticshortcomings, namely (1) the shrinking democratic legitimacy of European constitu-tional norms; (2) the undemocratic properties of European law-making procedures,due to (i) the ‘missing links’ in the chains of democratic legitimation of the two mainlaw-making procedures; (ii) the structural bias in favour of certain substantive contentsstemming from the division of legislative labour; and (iii) the insufficient interconnec-tion of European publics; all three further aggravated by the unconditional supremacythat Community law pretends to enjoy over conflicting national norms; (3) theundemocratic consequences of developing a substantive content of economic liberties

73 Case 33/76, Rewe [1976] ECR 1989, para 6, where the principle of equivalence is affirmed.74 Case 199/82, San Giorgio [1983] ECR 3595, para 17. See a direct precedent in the judgment in Case 8/77,

Sagulo [1977] ECR 1495, para 12.75 Case 208/90, Emmott [1991] ECR I-4269.76 Cases 430–431/93, Van Schjindel [1995] ECR I-4705 and Case 312/93, Peterbroeck [1995] ECR I-4599.77 Case 222/84, Johnston [1986] ECR 1651.78 Case 213/89, Factortame [1990] ECR I-2433.79 Case C-50/00 P, Unión de Pequeños Agricultores [2002] ECR I-6677, especially paras 41 and 42.



autonomous from the principle of non-discrimination; (4) the undemocratic implica-tions of the actual configuration of procedural guarantees, which multiply the effects ofthe structural substantive deficit enshrined in the division of legislative labour.

A The Shrinking Democratic Legitimacy of European Constitutional Law

The common constitutional law of the Communities is the foundational pillar ofthe democratic legitimacy of the EU. But as time passes, the ‘legitimacy’ light of thecommon constitutional traditions is bound to fade progressively. This is so because themostly undetermined character of the common constitutional law (a regulative idealonly partially explicated in the founding Treaties) opens up a large margin of reason-able disagreement concerning what is the proper definition of the common norms, and,consequently, results in major discretion for courts when interpreting and applyingEuropean constitutional law. It is thus not surprising that the legitimacy gap has notbeen bridged, but, on the contrary, the courts have occasionally developed lines ofjurisprudence which result in ‘dérapages’ from the common constitutional law, to theextent that the characterisation of the European constitutional norm is hard or impos-sible to present as the distillation of the set of national constitutional norms.

As was argued in III.A, European legal integration is properly described as a processof constitutional synthesis. Within such a process, the creation of a supranationalconstitutional order is legitimised by the definition of the substantive content of Euro-pean constitutional law by reference to the regulative ideal of a common constitutionallaw, which thus partially substitutes the democratic legitimacy proper and character-istic of ‘revolutionary’ or ‘evolutionary’ democratic constitution-making processes.

As a consequence, the constitutional law of the EU remained largely unwritten, or tobe more precise, non-explicit, as what was common in the common constitutionaltraditions was only partially established in the constitutional provisions enshrined inthe founding Treaties, or in their successive amending acts. Most of the contents ofEuropean constitutional law were thus to be distilled from the ‘raw’ source of Europeanconstitutional law, namely the six founding constitutions.

There are three sets of reasons why the ascertainment of the specific contents of thecommon constitutional law is far from being an obvious process; and why, conse-quently, there is a structural wide margin of discretion implicit in the figuring out of thecommon constitutional norms. First, the ascertainment of national constitutionalnorms is far from being a straightforward practice. In particular, it requires a system-atic interpretation of the formal, written constitution which is rendered complicated bythe fact that the correspondence between the formal and the material constitutionvaries across legal systems. While the more recently approved or amended nationalconstitutions usually reflect fully and faithfully the set of actual constitutional norms (iethe ‘written’ and the ‘living’ constitution tend to overlap), older fundamental lawsincline to be a partial rendering of constitutional law as practised, given that the formalconstitution is progressively shaped and, on occasions, surpassed, by evolving consti-tutional practices and conventions. In both cases, the elucidation of constitutionalnorms is a tall task, but clearly a taller one for those who have not been trained in theintricacies of the national legal system. If the constitution is rather new, the actualmeaning of the general principles enshrined in the constitution will not be coupled witha explicit set of derivative constitutional rules. If the fundamental law is rather old, theconstruction of the constitution would require the systemisation of manifold docu-ments and practices beyond the formal text, and the sorting out of the companion



normative conflicts. Second, it is necessary to solve the eventual inconsistencies ofnational constitutional norms, ‘competing’ to embody the common constitutionalnorm. If normative clashes of national constitutional norms are still rare, this is sobecause of the structural affinity between national constitutions, ensured by the demo-cratic conditionality of membership of the Communities since its very foundation. Butstill, there is quite some room for conflict. For one, there are substantive differencesconcerning the ranking of fundamental rights, ie the rights that should be regarded asfundamental, and the consequences which stem from that characterisation whensolving normative inconsistencies. For two, there remain differences on the actualweighing and balancing of conflicting fundamental rights, in some cases due to thedifferent ranking of the rights, in others to the choice of different derivative rules to sortout the very same conflict. Third, once the common constitutional norm is figured out,it may still be necessary to adapt the norm to the telos of European integration. Allnational constitutional norms were drafted and established with a view to organise andstructure a national political community, and were not intended as the framework of aprocess of supranational integration. Because the social, economic, political and legalcontexts of the European and the national constitutions are somehow different, it maybe necessary to ‘adapt’ the common constitutional norm to the context of integration.This may explain, for example, the apparently different ‘ranking’ of economic libertiesin European and national constitutional law, already ‘settled’ in the founding treaties.

The ‘democratic’ gaps deriving from the three just mentioned sets of problems arecompounded by three further specificities of constitutional interpretation in the EU.First, the distillation of common constitutional norms cannot be undertaken by refer-ence to a set of authoritative constitutional debates (as is the case in most nationalcontexts). This is so because there are no supranational debates to be consulted, andtoo many national debates on offer (something which derives by definition from thesynthetic character of European constitutional law). Second, it is questionable whetherconstitutional construction should regard debates in any European public (strong orweak) as a relevant reference, in the same way that the interpretation of nationalconstitutional norms evolves by reference to national general publics, especially asmirrored in the quality media, and to national strong publics. We can even questionwhether there is such a thing as a European political debate. The very low degree ofpolitical communication and interaction across national borders, together with the lowturnout at European Parliament elections, cast a long shadow of doubt over theEuropeanisation of national public spheres, and an even larger one over the idea of aEuropean public sphere. Third, the specific institutional set up of the EU leads to adivision of the labour of constitutional construction which empowers institutions withan indirect, and rather long chain of democratic legitimacy, prominent among them,the European Court of Justice and national courts.

As a result, the process of ascertainment of the common constitutional law is onewhich leaves an unusually large margin of discretion to constitutional interpreters.And consequently, it creates the structural conditions under which the supranationaldefinition of the common constitutional law could become not only autonomous, butindependent from and contradictory with national constitutional norms (the above-mentioned ‘dérapage’), which will unavoidably diminish the democratic legitimacy ofEuropean constitutional law. Whether a ‘dérapage’ has happened can be determined byconsidering whether a specific derivative constitutional norm affirmed by the EuropeanCourt of Justice can plausibly be said to result from a systemic interpretation ofCommunity law. One clear candidate is the definition of freedom of establishment as



granting companies the right to establish themselves in one Member State for the solepurpose of avoiding the regulatory framework of another Member State (and thus, toengage into ‘law-shopping’ by means of establishing themselves in countries in whichthey have no economic link).80 This definition of the breadth and scope of one of the keyeconomic liberties does not only seem to overrule previous rulings of the court (andcontradict the conclusions of some Advocates General),81 but is hard to justify byreference to national constitutional norms, all of which assume a connection betweenthe exercise of economic freedoms and actual economic activity. The court has alsofailed to substantiate its claim that such independent interpretation would be requiredby the context of integration. Moreover, it has given rise to further lines of jurispru-dence the democratic legitimacy of which is equally dubious.

The more the judicial construction of European constitutional law ‘thickens’, themore likely it is that specific decisions open up lines of jurisprudence which end upweakening the legitimacy link between individual national constitutions and thecommon constitutional law. Indeed, the probability of constitutional ‘dérapages’ neces-sarily increases as time passes.82

It could be counter-argued that all constitutional practice tends to become self-referential as time passes; it is only ‘natural’ that judges ground their new decisions onpast decisions (and increasingly only on past decisions), as their task is that of developinga coherent case-law. However, it is still the case that the legitimacy of their judgments isdependent on the European Court of Justice being capable of presenting itself as theguardian of the decisions taken by the puovoir constituent against the constituted powersof the state.83 Even the constitutional court with more self-referential proclivities has topretend to take good notice of constitutional debates and of debates on constitutionalissues which take place in strong publics. But European courts, both the European Courtof Justice and national courts discharging European constitutional tasks, simply do nothave such reference points. This is why there are more European slippery slopes leadingto the erosion of the legitimacy basis of constitutional norms.

B The Democratic Shortcomings of European Law Making

As was argued in section III.C, the breadth and scope of Union law creates thestructural conditions under which the democratic principle could be realised at aEuropean scale. The fact that Community law-making procedures forge a generalEuropean will by means of testing if there is either an aggregate national will (ordinaryCommunity decision making) or a double will composed of a qualified majority ofnational wills and of a majority of direct representatives of citizens (co-decision),

80 Case C-212/97, Centros [1999] ECR I-1459, Case C-208/00, Überseering [2002] ECR I-9919 and CaseC-167/01, Inspire Art [2003] ECR I-10155.

81 See for the conclusions AG Darmon in Case 81/87, Daily Mail [1988] ECR 5505 (the opinion of the AGcan be read in [1988] 3 CMLR 713, at 718). The ruling of the court assumes the necessary existence of areal economic link between the corporation and the place of establishment.

82 For example, concerning the tax implications of this definition of freedom of establishment. Cf the rulingin Case C-196/04, Cadbury Schweppes, para 55 of the judgment, which narrows down spectacularly theconcept of tax avoidance.

83 See C. Santiago Nino, ‘A Philosophical Reconstruction of Judicial Review’, (1993) 14 Cardozo LawReview 799; and B. Ackerman, ‘The Political Case for Constitutional Courts’, in B. Yack (ed), Liberalismwithout Illusions. Essays on Liberal Theory and the Political Vision of Judith N. Shklar (University ofChicago Press, 1996), 205–219; G. Zagrebelsky, Principì e voti (Einaudi, 2005).



establishes the democratic legitimacy of European law prima facie. However, it doesnot offer conclusive evidence of their final democratic legitimacy.

Specifically, we can individuate three major democratic shortcomings in the design ofEuropean lawmaking and, in particular, (1) the insufficient intertwinement of Euro-pean publics weakens the influence of general publics over law making; (2) the divisionof labour between the standard Community method and co-decision results in a sub-stantive bias of European law making, favouring market making over market correc-tion; (3) the defective design of law-making procedures results in several missing linksin the chain of democratic legitimacy. Additionally, (4) the affirmation of the primacyof Union law over national law in case of normative conflict aggravates the democraticimplications of the three shortcomings just mentioned, to the extent that a higher legalforce is attributed to norms which have inferior democratic credentials, subverting thehierarchy required by the principle of democratic legitimacy.

a) The Insufficient Europeanisation of National PublicsThe emergence of European publics84 would require the interconnection of local,regional and national publics, so that the agenda of political debate will be roughlysimilar and discussions will be contemporary in all Member States. Only then couldarguments flow across borders and influence the debates of supranational strongpublics, such as the European Parliament. But leaving aside short-lived exceptionstriggered by rather exceptional events, European general publics remain insufficientlyinterconnected and, as a consequence, have a weak and erratic impact upon theformation of the European general will as enshrined in regulations and directives. Thisstate of affairs is easy to explain by reference to sociological facts such as the pluralityof languages spoken across the Union, or perhaps more exactly, the absence of onelingua franca, which could facilitate the trans-European articulation of political con-flict. It must be added that the institutional set-up of the Union, and the discourse ofEuropean institutions themselves, constitute further obstacles to the Europeanisationof national public spheres. As liberal inter-governmentalists have stressed, the processof European integration tends to reinforce (at least some) national cleavages.85 Thecentral position of some national institutions, such as governments, turns them intothe main vehicle of societal claims and creates the proper incentives to encouragethem to engage in discourses aiming at the definition of the national interest.86 This

84 Many observers tackle this question by referring to the ‘European public sphere’. However, such amonistic analysis is of dubious utility. There will never be a European public sphere, in the same way asthere is no German, French or Italian public sphere, but a set of interconnecting public spheres which canbe labelled as the German, French or Italian public only as an abbreviation. See K. Eder and H. J. Trenz,‘The Democratising Role of a European Public Sphere. Towards a Model of Democratic Functionalism’,(2004) 7 Journal of European Social Theory 5.

85 Moravcsik, op cit n 14 supra; A. Milward, The European Rescue of the Nation State (Routledge, 1992).86 A good example is provided by the financing of the EU. The fact that most of the revenue is collected

through national contributions, and not through a genuine European tax power, gives rise to a periodicconstruction and reconstruction of alleged national interests by national exchequers. The balance betweenwhat a Member State transfers to the Union and the total sum of the transfers from the European budgetto its citizens becomes the major reference point in the debates. This prevents the analysis of the questionfrom the standpoint of criteria of distributive justice (and, one must say, efficiency). Consequently,political mobilisation is structured around national, not economic lines, as could be expected on a taxissue. To the extent that national publics debate the issue, they do so in terms of what is good for us,nationals, something which clearly renders almost impossible the mutual influence of national debatesand, consequently, the interconnection of publics.



counterbalances, and sometimes clearly overweighs, the role played by European insti-tutions such as the European Parliament (or for that matter the Commission or theEuropean Central Bank) as articulators of the European interest.

As long as European publics remain weak, critical democratic functions, such as theinsertion of viewpoints, information and arguments into the agenda of institutiona-lised, strong publics, will remain unfulfilled.87 Only a genuine European public couldensure the fairness and completeness of the European political agenda.88

b) The Structural Substantive Bias of Community LawThe division of legislative labour between the standard Community method andco-decision creates a structural substantive bias in European law in favour of normsthat increase the depth and breadth of economic liberties, and against norms thatcorrect market outcomes in line with the socio-economic principles characteristic of theSozial Rechtsstaat, affirmed in the constitutional law of all Member States. This resultsin a serious democratic problem, because what formally speaking are neutral decision-making processes, in reality are ‘loaded’ in favour of a specific understanding of theEU.

As long as the European general will was exclusively defined as the aggregation ofnational general wills (as was and still is the case in the classical Community method),all Community norms were subject to the same law-making procedure, and thereforethere was no structural democratic deficit to speak about.

The addition of a ‘composite’ definition of the European general, first tentativelywith the cooperation procedure, and then boldly with co-decision, has been generallyperceived as contributing to the democratisation of the Union, to the extent that iteliminates the veto power of single Member States, and thus removes the power tooppose European laws without offering supporting arguments;89 and given that itempowers the European Parliament to the detriment of the Council, which impliesacknowledging the relevance of the general will of Europeans qua supranational citi-zens; a necessary step in the consolidation of a genuine European democracy. Still, itshould be kept in mind that co-decision has also come hand in hand with an implicitdistinction between the set of norms aimed at the further realisation of economicliberties (market making), which are generally approved through co-decision; and thenorms aimed at correcting the distributive outcomes of the functioning of the singlemarket (market-correcting, welfare-related measures) which can only be transformedinto regulations and directives following the standard Community method. This dis-tinction is extremely problematic from a democratic standpoint for two related reasons.First, it promotes the (questionable) characterisation of market-making and market-correcting norms as independent from each other, which is in reality only one—favoured by neoliberals and ordoliberals—of the many possible specific conceptionsof their relationship. Once this particular conception is positivised into Europeanconstitutional law through the division of legislative labour between the ordinary

87 See J. Habermas, Between Facts and Norms (Polity Press, 1997), at 183 and 185–186.88 The European case supports the claim made by Brunkhorst that ‘democratic strong publics should be

conceptualised as a system including what are usually labelled weak publics’. See Brunkhorst, op cit n 30supra, at 677.

89 Unanimity may be the regulative ideal of decision making for theories of deliberative democracy, but itis definitely not the proper operationalisation of that ideal of deliberative democratic legitimacy. SeeRichardson, op cit n 32 supra.



Community method and co-decision, the scope of democratic decision making isdramatically reduced, because how economic liberties and fundamental rights are to berelated is indeed one of the key democratic decisions. Second, it renders easier (and thusmore probable) the adoption of market-making rather than market-correcting norms,because forging a general will under co-decision is statistically more probable thanunder the standard Community method. This leads to the actual decoupling of market-making norms from the implications they might have on matters which fall beyond themarket-making competence of the Union, and thus decreases the capacity of publicinstitutions to steer the economy in the Union as a whole, while empowering specificprivate actors on account of their economic might and capacity of leadership within‘markets’ (usually referred to as such even if they fail to meet the qualifying criteria forbeing so).90

c) Missing Links in the Chain of Democratic LegitimationThe democratic legitimacy of regulations and directives is seriously hampered by thelack of transparency in the functioning of the European Council. This is so becausesecrecy weakens all links in the chain of democratic legitimacy; as a consequence, theactual legitimacy of regulations and directives is dubious.

The two main European law-making process are characterised by excessive secrecy,but the publicity of the standard Community method is the lowest of the two, given thatthe Rules of Procedure of the Council are even stricter in this case, and given that thedisempowerment of the European Parliament decreases the chances of getting the fullpicture of the debates within the Council.

The publicity of Council’s meetings, even after the 2002 amendment of the rules ofprocedure,91 remains rather limited.92 First, publicity is mandated only on what con-cerns the meetings of the upper tip of the Council’s iceberg, the Council of Ministers assuch, and does not extend to the meetings of the Commité des Représentants Perma-nents (COREPER), the preparatory committees or the working groups. This entailsthat publicity is required in only circa 15% of all decisions, which is the actual propor-tion of dossiers that are not finalised below the ministerial level.93 Thus, in the remain-ing 85% of the cases, publicity is (at most) limited to the mere decision to accept adecision taken by bodies still fully protected from the public light. Second, even withregard to meetings at the ministerial level, publicity is severely constrained. As wasalready said, Article 8.1 of the Rules of Procedure requires the publicity of the delib-erations only if the regulation or directive is to be adopted through co-decision. Whenthe standard Community method applies (or for that matter any other law-making

90 A theme already considered by S. Strange, Casino Capitalism (Blackwell, 1986). More recently and froma different perspective, see C. Crouch, Post-Democracy (Polity Press, 2004).

91 Presidency Conclusions of the Seville European Council, June 2002, Annex 2, points 10–11, OpeningCouncil Meetings to the Public when the Council is Acting in Accordance with the Procedure for Codecisionwith the European Parliament, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/72638.pdf.

92 A preliminary assessment of the new provisions is given in J. Shaw, ‘Transparency in the Councilof Ministers’, (1996) European Newsletter 3, available at http://www.fedtrust.co.uk/admin/uploads/News_Jan_06.pdf. A recent empirical study on the concrete area of sugar regulation is given inR. Laming, Openness and Secrecy in the EU Institutions: Lessons from the EU Sugar Regime, FederalTrust Policy Brief 2006, available at http://www.fedtrust.co.uk/admin/uploads/PolicyBrief28.pdf.

93 F. Hayes Renshaw and H. Wallace, The Council of Ministers (Palgrave, 2006), at 77.



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procedure is applicable), publicity only extends, according to Article 9.1 of the Rules ofProcedure, to the ex-post publication of ‘the results of votes and explanations of votesby Council members, as well as the statements in the Council minutes and the items inthose minutes relating to the adoption of legislative acts’.

Secrecy creates and reinforces the informational and capacity asymmetries whichplague the relationship between national executives and national parliaments on Euro-pean issues. It precludes national parliaments from having sources of informationalternative to the accounts offered by national ministers (or regional ministers in somefederal countries) sitting in the meetings of the European Council. This renders itdifficult not only to know what has actually been said in such meetings, but especiallywhy decisions were adopted. This relativises the actual efficiency of even the mostsophisticated systems of accountability, for the very simple reason that ministers mayescape censure by moulding the facts to fit their interests.94 The full institutionalautonomy of each nation state when designing the system of parliamentary control ofnational ministers sitting in the Council comes at the price of depriving parliaments ofwhat could be an additional source of information, if there were some commonalitiesin their procedures, and channels of information sharing and common action wereestablished.95

It is true that in recent years the Council has increased the publicity of even itsinternal documents;96 and, in a similar vein, the Commission has made much of itswillingness to pay attention to ‘stakeholders’.97 However, the idea of ‘stakeholderaccountability’ is rather vague, and its democratic self-standing is, at best, rather weak,as was already argued.98 Moreover, in the absence of functional European generalpublics, it is obvious that the Commission’s strategy runs the risk of being the embel-lishment of lobbying, or truly a smart way to co-opt certain societal interests with aview of giving a legitimacy aura to technocratic decision making.99

94 See the Preparatory Note to the Working Group of the Laeken Convention on National Parlia-ments, CONV 67, available at http://register.consilium.eu.int/pdf/en/02/cv00/00067en2.pdf. See alsoR. Holzhacker, ‘National Parliamentary Scrutiny over EU Issues. Comparing the Goals and Methods ofGoverning and Opposition Parties’, (2002) 3 EU Politics 459.

95 In that regard, the contribution of the flamboyant Dutch parliamentarian Hans Van Baalen to thereferred Working Group of the Convention is rather telling, even if focused on the efficiency, and not somuch the democratic legitimacy implications, of monitoring. See the website available at http://european-convention.eu.int/docs/wd4/1524.pdf.

96 Council Decision 2000/527/EC of 14 August 2000, amending Decision 93/731/EC on public access toCouncil documents and Council Decision 2000/23/EC on the improvement of information on the Coun-cil’s legislative activities and the public register of Council documents, [2000] OJ L212/10; Regulation(EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public accessto European Parliament, Council and Commission documents, [2001] OJ L145/43. The background anda critical assessment is given in D. Curtin and H. Meijers, ‘Access to EU Information: An Element ofCitizenship and a Neglected Constitutional Right’, in N. A. Neuwahl and A. Rosas (eds), The EU andHuman Rights (Martinus Nijoff, 1995), 77–104; E. Chiti, ‘The Right of Access to Community InformationUnder the Code of Practice: The Implications for Administrative Development’, (1996) 2 European PublicLaw 363.

97 White Paper on European Governance, n 7 supra.98 Indeed, the term and the concept of stakeholder responsibility are borrowed from company law, where

the question of accountability (rightly or wrongly) is posed in rather different substantive terms (thequestion being the protection of material economic interests, and not the respect of political rights).

99 Cf B. Kohler-Koch and B. Finke ‘The Institutional Shaping of EU-Society Relations: A Contribution toDemocracy via Participation?’, (2007) 3 Journal of Civil Society 205.



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d) Supremacy Amplifies the Democratic Shortcomings of European LawMakingThe abovementioned three democratic shortcomings of European law making areamplified by the primacy of Community over conflicting national law. Primacy ofUnion law can easily be justified in the name of the principle of equality before the lawof all European residents, and, as such, be traced back to the constitutional traditionscommon to all Member States.100 However, the supremacy of Community law isproblematic if it implies giving preference to a piece of legislation that, at least in termsof procedure, is potentially less democratically dignified than the one being left aside.The democratic fragility of Community legislation explains the rage occasionallyexpressed when the European Court of Justice or a national court gives preference toUnion over national law. It also accounts for the periodic irate judgments of nationalconstitutional courts.101

C Legitimacy through Substance: The Perils of the Widening of EconomicFreedoms and of a Judge-Made Bill of Rights

There are two serious democratic problems with the substantive principles of Europeanconstitutional law. The first is the redefinition of economic liberties as legal powersaimed at the removal of ‘obstacles’ to the creation of a single market. This results inbreaking the democratic legitimacy chain from national constitutions to economicliberties passing through the principle of non-discrimination on the basis of nationality,without establishing an alternative democratic basis for the said liberties. The second isthe specific legal technique through which the court ‘internalised’ fundamental rightsinto European constitutional law (the affirmation of a general principle of protection offundamental rights). This left largely undetermined not only the set of fundamentalrights, but also the relationships that should be established among them. This hascreated a wide margin of discretion and multiplied the chances of constitutionaldérapages.

First, the European Court of Justice has recharacterised economic liberties. Frombeing operationalisations and concretisations of the principle of non-discrimination onthe basis of nationality, they have been redefined into self-standing constitutional norms,the substantive content of which is to be determined by reference to the idea of a ‘singlemarket’. This explains the shift in the case-law of the court from the determinationwhether national norms were discriminatory against non-nationals, to whether theyconstitute obstacles to the creation of the single market (a shift which has also resultedin shrinking the scope of the ‘reverse discrimination’ doctrine). From a democraticperspective, this transformation is extremely problematic because it implies a radicalalteration of the ultimate source of the canon of European constitutionality. As long aseconomic liberties are understood as concrete formulations of the principle of non-discrimination on the basis of nationality, the review of European constitutionality isundertook by reference to the constitutional substance enshrined in the national consti-tution and/or the common constitutional law of the Member States. But once economicliberties become ‘emancipated’, the court assumes that the substantive definition of the

100 See A. J. Menéndez, ‘Some Elements of a Theory of European Fundamental Rights’, E. O. Eriksen andA. J. Menéndez (eds), Arguing Fundamental Rights (Springer, 2006), 155–183.

101 The most famous judgments are those issued by the German and the Italian Constitutional Courts, butthe Polish Constitutional Court has turned itself into a much-observed player recently.



said liberties can be established by exclusive reference to the idea of the ‘single market’ asenshrined in the Treaties. It must be added that the court, oblivious to its own case-law,where different understandings of each economic liberty were affirmed at the differentpoints in time, tends to assume that there is only one correct understanding of what asingle market is, thus ‘transcendentalising’ the idea of a single market, and implicitlyappointing itself as the only legitimate interpreter of what it entails.

Second, the Court of Justice ‘internalised’ fundamental rights into Community lawin the case-law led by Stauder and Internationale. It did so by means of a rather specificlegal technique, namely by affirming that a key constitutional principle of Union lawwas the ‘protection of fundamental rights’. This implies that all the concrete rightsacknowledged to be part and parcel of Community law are placed on the same footing.As a result, the judicial elaboration of the bill of European rights not only resulted inleaving open the question of which were the fundamental rights of the EU, but alsowhich were the principles governing their relationships (usually established in nationalconstitutional systems by means of distinguishing different types of rights—fundamental and non-fundamental, for example—and different techniques of protec-tion for different rights—different remedies and different institutional mandates). Thishas created a wide margin of discretion, and multiplied the chances of constitutional‘dérapages;’ especially, when what is to be sorted out is a conflict between a fundamen-tal right and an economic freedom. This has exacerbated the structural democraticshortcoming stemming from the division of labour between the standard Communitymethod and co-decision (see section IV.B.b). Not only is the argumentative burdenshifted against the states aiming at realising socio-economic objectives which may havenon-discriminatory incidental effects on the four economic freedoms, but ‘commodi-fied’ and ‘monetarised’ relationships are extended to social realms where the nationalconstitutional traditions require social relationships to be governed by different prin-ciples.102 This has been a major (even if largely unnoticed) side effect of the ‘citizenship’line of jurisprudence opened by Martínez Sala and Baumbast.103 And has been spec-tacularly confirmed in the rulings of the court in the Viking and Laval cases.104

The elaboration and later solemn declaration of the Charter of FundamentalRights of the EU might be interpreted as alleviating some of these problems andassuaging some democratic concerns. The Charter establishes a catalogue of rightswith an internal structure, within which it is possible to distinguish not only betweenfundamental rights proper and general principles aimed at guiding legislation, butalso between provisions which express a fundamental subjective right position andothers which express a common good. This reduces the realm of discretion whenweighing and balancing conflicting fundamental rights.105 Moreover, the Charter waselaborated by a convention where representatives of national parliaments and gov-ernments sat together with representatives of European institutions. Even if far from

102 See S. Giubboni, ‘Free Movement of Persons and European Solidarity’, (2007) 13 European Law Journal360.

103 Case C-85/96, Martinez Sala [1998] ECR I-2691; Case C-413/99, Baumbast [2002] ECR I-7091. SeeA. J. Menéndez, ‘More Human, Less Social?’, in M. Maduro and L. Azoulay (eds), ‘The Past and Futureof EU Law’ (Hart, 2009).

104 See Cases C-438/05, Viking, not yet reported; C-341/05, Laval, not yet reported; C-346/06, Ruffert, not yetreported.

105 O. De Schutter, ‘La contribution de la Charte des droits fondamentaux de l’Union européenne à lagarantie des droits sociaux dans l’ordre juridique communitaire’, (2001) 12 Revue Universelle des Droitsde l’Homme 37 and A. J. Menéndez, ‘The Sinews of Peace’, (2003) 16 Ratio Juris 374.



optimal, their democratic credentials were thus much higher than that of the Court ofJustice, or indeed of any court. Having said that, it is still the case that the Charter hasnot been formally incorporated into Union law. Its normative contents are binding tothe extent that they represent a consolidation of pre-existing law, and to the extentthat the European Court of Justice and national courts feel bound by its contents.Without a clear constitutional mandate, the relationship between the positive provi-sions of the Charter and the acquis communitaire reflected in the case-law of the court,is unclear. Judges are thus even better placed to pick and choose among sources ofEuropean fundamental rights, with the Charter making it even easier to cover discre-tionary decisions if different sources are applied selectively. The decision of the Courtof Justice to start making reference to the Charter precisely at the time that theConstitutional Treaty has been formally buried is not especially reassuring in thisregard.106

D Procedural Rights as Look-alikes of Structural Constitutional Principles

The present set of European procedural guarantees is problematic from a democraticstandpoint because the European Court of Justice has developed its case-law in such away that it consolidates the structural principles governing the relationship betweenCommunity and national law (and indirectly the relationships between institutions) buthas not paid attention to the democratic gap which results from the democratic speci-ficity of the review of European constitutionality of national laws.

Clear evidence is found in the contrast between the case-law of Court of Justice onthe locus standi of physical and legal persons (ie corporations) to seek the annulment ofa Community general legal norm under Article TEC 230 and the line of jurisprudenceof the competence of national courts to address preliminary questions to the Court ofJustice.

The Luxembourg judges have been extremely restrictive in the examination ofwhether individuals meet the criteria enunciated in Article 230 TEC. Individuals aredenied locus standi unless they can prove that the Community act is formally a generalact, and substantively an administrative act or set of administrative acts, and that theyare the addressees of such ‘material’ administrative act.107 On the contrary, the courthas been extremely lax in the admission of preliminary questions, turning them into themeans of choice to contest the European constitutionality of regulations and directives.The combined effects of these two lines of jurisprudence have been the nurturing andconsolidation of a working relationship between the European Court of Justice andnational courts,108 as it turns national courts into the gatekeepers of the review ofEuropean constitutionality and, ultimately, into privileged enforces of European con-stitutional law. Still, it is very problematic from a democratic standpoint for tworeasons. First, it creates a severe risk that the constitutionality of implementing normsgoes unchecked, especially on what concerns self-executing Community acts. Second, it

106 Cf Case C-540/03, Parliament v Council, judgment of 27 June 2006, not yet reported, paras 34, 38 and58–59; Case C-411/04 P, Mannesmannröhren-Werke AG v Commission, judgment of 25 January 2007, notyet reported, paras 32–33, 35, 45, 50; Case C-432/05, UNIBET (London) LTD v Justitiekanslern, judg-ment of 13 March 2007, not yet reported, para 37; Case C-303/05, Advocaten voor de Wereld, judgmentof 3 May 2007, not yet reported, para 45–46.

107 The court reaffirmed such jurisprudence in Unión de Pequeños Agricultores, n 79 supra.108 D. Sarmiento, Poder Judicial e Integración Europea (Civitas, 2003).



more broadly rules out the development of a Community system of review of theconstitutionality of regulations and directives in Article 230 TEC. While the absence ofthe constitutional review of legislation may be a very sound option in national consti-tutional systems, it is problematic when it concerns regulations and directives given themany democratic shortcomings of the European law-making process, as described inthe previous subsection (IV.B). Some form of judicial review of regulations and direc-tives with a view to enforce fundamental rights may be prima facie required in Com-munity law and, specifically, by national constitutional traditions which support boththe idea of the legal primacy of the constitution, but also ground each and everyfundamental right in Community law.

V Conclusion

In this article I have analysed and assessed the legitimacy of the EU from a democraticstandpoint consistent with the characterisation of the Union as a genuine politicalCommunity. I have sustained all through the text that the ‘democratic problem’ of theUnion is better tackled by disaggregating it, by focusing on the specific democraticpluses and shortcomings of the Union. This is what has been done in sections III andIV. It is now time to pass an overall judgment. It seems to me that what was said in thethird section supports the conclusion that the EU can make a justified claim to its beingminimally legitimate from a democratic perspective and, thus, that there are goodreasons to support the existence of a general obligation to obey Community law.Moreover, it can be said that the six sources of democratic legitimacy of the Union doindeed offer a plausible explanation of why the transfer of powers from the MemberStates to the Communities has been widely accepted by European citizens (and, untilrecently, strongly supported); and why European laws are generally complied with.Still, the fourth section shows that the legitimacy of the Union has been eroding in thelast three decades, and is slowly but steadily being depleted. Moreover, if nothing isdone about it, we are very likely to reach the point where the authority of Communitylaw may be seriously questioned. Given the extremely limited set of coercive resourcesat the disposal of supranational institutions, that could very well lead to a fast dete-rioration of the effectiveness of Community law. There are some indications that theprocess has already started, such as the end of the ‘permissive consensus’ and theradical shift in the default attitude of European publics towards integration (asreflected in the three negative outcomes of the constitutional referenda in France, theNetherlands and Ireland).

A central thesis of this article is that the democratic legitimacy equation of the Unioncan only be explained if we take seriously the specific character of European legalintegration and, in particular, if we realise that the EU and its constitutional law is theoutcome of a process of constitutional synthesis. The regulative ideal of a commonconstitutional law infused the new order with democratic legitimacy in lieu of thatstemming from a revolutionary act of constitution making or from the slow evolutionof a constitutional order. But at the same time, the legitimising force of the commonconstitutional law is bound to decline as time passes. As it becomes imperative torender explicit the actual contents of the common constitutional law, the EuropeanCourt of Justice is trapped in a dynamics in which it is required to take increasinglyconcrete decisions, but lacks any political framework of reference (contrary to what isthe case with national constitutional courts when called to discharge their more limitedtasks), either in the form of constitutional debates or of a public opinion articulated by



strong publics on the basis of societal debates mirrored in the quality media. Undersuch circumstances the chances of mistakes and constitutional ‘dérapages’ can onlyincrease over time. These conclusions unavoidably pose the further question of what isin stock for the EU. Prediction is not the favourite cup of tea of this author, but it maynot be too adventurous to claim that the process of deterioration of the democraticlegitimacy of the Union can only be stopped by an explicit act of democratic reconsti-tution of the Union. Writing in the aftermath of the political failure of both theConstitutional Treaty and the Lisbon Treaty (with the latter in a critical legal conditionrequiring intensive political care), this may sound naïve at best. But it seems to me thatif both processes failed, it was because they were based on a wrong constitutionaltheory; they were premised on a wrong understanding of how a synthetic politicalcommunity is to be explicitly constitutionalised. On the one hand, the Laeken Treatyamendment process was framed as an exercise in revolutionary constitution making,which revealed itself as too much to swallow in one shot. In the absence of stablechannels of cross-European political communication, and of a genuine proposal ofconstitutional change, any process which presents itself as ‘constitutional’ is bound tofail. On the other hand, Lisbon was presented as a grand diplomatic bargain. ButEuropean leaders were oblivious to the fact that the Laeken Treaty amendment processwas a ratification failure that revealed to all Europeans the constitutional nature of theUnion. As a result, we are well beyond the point at which citizens will tolerate anenlightened constitutionalism that excludes them. What the EU urgently needed wasthus an intermediate step in constitutional clarification, which would have renderedexplicit how the Union was constituted, and would have facilitated the later articulationof an agenda of constitutional reform. It seems to me that the Charter of FundamentalRights held much promise as a vehicle of constitution making. But it may well be thatthe EU has missed its last constitutional train, and that only a political act of refoun-dation led by the Members of Euroland could rescue the Union.

First Submitted: April 2008Final Revision Accepted: November 2008



the european democratic challange:the forging of a supranational volonte generale

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