The European Democratic Challange:The Forging of A Supranational Volonte Generale

European Law Journal, Vol. 15, No. 3, May 2009, pp. 277–308.
© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
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 the
democratic legitimacy of the Union from the standpoint of deliberative democratic
theory. Contrary to standard accounts, it is claimed that the democratic deficit must be
disaggregated, given that the Union has not only several shortcomings, but also some
democratic surpluses. On the one hand, the Union was created to tackle the democratic
deficit of nation states, and has been partially successful in mending the mismatch
between the scope of application of their legal systems and the geographical reach of the
consequences of legal decisions. Moreover, the European legal order is based on a
synthetic constitutional law, which reflects the common constitutional traditions of
the Member States, which lend democratic legitimacy to the whole European
legal order. On the other hand, the lack of a democratically written and ratified
constitution is a central part of the democratic challenge of the Union. But equally
important is the structural bias in favour of certain material legal results, which stems
from the interplay of the division of competences and the plurality of law-making
procedures.
I Introduction
Debates about whether the institutional structure and decision-making processes of
the EU are democratic enough have been the bread and butter of European studies
since the mid-seventies.1 This article engages in earnest with such discussions by
disaggregating what is usually said to be the problem (the ‘democratic deficit’ of
* Profesor Contratado Doctor I3, Universidad de Léón; RECON research fellow, ARENA, Universitetet
i Oslo. This article has been rendered possible by the generous funding of Work Package II of the RECON
research 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 was
rendered 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 time
of the first democratic elections of MEPs. The troubled ratification process of the Maastricht Treaty
further fuelled the debate.
European Law Journal Volume 15
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 democratic
legitimacy are systematically individuated, exposed and criticised, thus transcending
the standard aggregative approach that seems to render the problem rather
intractable.
The structure of the article is as follows. Section II is devoted to the clarification
of the democratic standards applied in this article. In particular, I claim that the
legitimacy of the EU is a matter of democratic legitimacy, at the same time that I
justify the choice of the two basic premises which guide the operationalisation of the
principle of democratic legitimacy in the EU context. In section III, I reconstruct the
basic foundations of the EU’s democratic legitimacy. In particular, I individuate six
main sources of democratic legitimacy, namely (1) the national ‘enabling’ constitu-
tional clauses on the basis of which nation states became Member States of the
Union; (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 comitology
procedures to draft regulations and statutory instruments; (5) the expansion of the
breadth and scope of the right to equality resulting from the review of the European
constitutionality of national laws by reference to Community fundamental rights and
economic freedoms; and (6) last, but not least, the procedural subjective rights
through which citizens influence the process of application and adjudication of
Community norms. In section IV, I consider the key democratic shortcomings of the
institutional structure and decision-making processes of the Union, which seem to be
the following: (1) the shrinking democratic legitimacy of European constitutional
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 main law-
making procedures; (ii) the structural bias in favour of certain substantive contents
stemming from the division of legislative labour; and (iii) the insufficient intercon-
nection of European publics; all three further aggravated by the unconditional
supremacy that Community law pretends to enjoy over conflicting national norms;
(3) the undemocratic consequences of developing a substantive content of economic
liberties autonomous from the principle of non-discrimination; (4) the undemocratic
implications of the actual configuration of procedural guarantees, which multiply the
effects of the structural substantive deficit enshrined in the division of legislative
labour. 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 Normative

Democratic Theory
The first thesis defended in this article is that the EU can only exercise its powers
legitimately if its institutional structure and decision-making processes are sufficiently
democratic, that is, if they ensure European citizens a sufficient degree of participation
and influence over European affairs. To show why the latter is the case, it is necessary
to rebuff the two key variants of the theory that the legitimacy of the EU is not
dependent on its democratic legitimacy (hereafter referred to as the strong and weak
decoupling theses).
278 © 2009 Blackwell Publishing Ltd

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May 2009 The European Democratic Challenge
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 main
argumentative strategies to substantiate such a claim.
The first one affirms that European legitimacy derives from the extent to which its
existence and its actual functioning contributes to the realisation of a ‘thick’ ethical
conception. The leading representatives of this strategy are the ordoliberal and neolib-
eral theories of European integration, which characterise the Union as the institutional
means to ensure the realisation of private liberty, ie private economic autonomy.3 In
particular, ordo-liberals and neo-liberals claim that the full accomplishment of the four
economic freedoms enshrined in the Treaties is the litmus test of European legitimacy.
A second variant of the strong decoupling thesis is the definition of European
legitimacy in procedural terms other than democratic decision making. Although his-
torically speaking the most frequent type of non-democratic procedural theories of
democracy were authoritarian,4 in modern times they have been replaced by theories
which trace legitimacy back to the production and application of technical, scientific or
expert knowledge. On what concerns European affairs, the most articulated conception
of this kind may be the theory of European ‘governance’ as a full-fledged alternative to
representative democratic government.5 According to such a theory, democratic rep-
resentation has been rendered ‘quaint and obsolete’ by technological change and
economic globalisation. Both processes have reduced the capacity of classical political
institutions to form a coherent volonté générale and to govern society.6 The complexity
of the problems posed in post-modern societies, and the speed at which decisions are to
be 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, The
Anatomy of Anti-liberalism (Harvard University Press, 1993).
3
On ordo-liberalism, see the superb anthology edited by A. Peacock and H. Willgerodt, Germany’s Social
Market Economy: Origins and Evolution (MacMillan, 1989). On ordo-liberalism and the EU, the key
author is Ernst Jachim Mestmaecker. See his ‘On the Legitimacy of European Law’, (1994) 58 Rabels
Zeitschrift 615; ‘De la Communauté économique à l’Union économique et monétaire’, (1995) 1 Revue des
Affaires Européennes 111. President Klaus of the Czech Republic is the closest one gets to a political leader
endorsing 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 Crisis
of Parliamentary Democracy (The MIT Press, 1985) (originally published in 1923); Roman Catholicism
and 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 encompassing
and 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.
© 2009 Blackwell Publishing Ltd 279

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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 is
so because it provides a poor reconstruction of actual constitutional practices and relies
on normative premises which are flatly contradicted by the said constitutional practice.
First, the constitutional identity of both the Union and its Member States is premised
on the coupling of legitimacy and democracy. The EU is, and has always been, a Union
of democratic Member States. It is a very well-established principle of Community law
that membership is conditional upon applicant countries and actual Member States
having an institutional set up and decision-making structure that ensures the pairing of
legitimacy and democratic legitimacy.9 Moreover, the Treaties explicitly affirm that the
institutional 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, the
European Parliament, which is meant to be a direct representative of European citizens
as Europeans, not nationals of their Member States. Under such circumstances, to deny
that the legitimacy of the EU has anything to do with democratic legitimacy (that it can
be a matter of realising economic freedoms only, or that it could be realised by the mere
setting up of specific governance structures) is at odds with the constitutional identity
enshrined in European and national constitutional law.
Second, and decisively, the institutional set up and the decision-making processes of
the EU are so structured as to guarantee the infusion of direct and indirect democratic
legitimacy on European norms (as we will see in more detail in the section III of the
article). This may still be far short of what is normatively required (as indeed will be
claimed in the section IV of this article). But the fact that citizens criticise European
institutions 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 on
European 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 in
the symposium edited by C. Joerges, Y. Meny and J. Weiler (eds), Mountain or Molehill? A Critical
Appraisal 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, ‘European
Governance 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 (and
terribly ambivalent) proposal of P. Nanz and J. Steffek, ‘Global Governance, Participation and the Public
Sphere’, (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 Common
Market Law Review 313.
8
Perhaps the finest exposition of such a line of thought is to be found in the writings of somebody who once
was a paradigmatic advocate of deliberative democracy á-la Habermas: Oliver Gerstenberg. See his ‘The
Denationalization 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’, in
C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University
Press, 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 Harvard
International Law Journal 243. Gerstenberg goes so far as to claim that the Centros ruling of the European
Court 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 welfare
systems) 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 into
the 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 to

have been one of the underlying causes of the negative outcome of the constitutional
referenda 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 are
far less than what is generally assumed to be the case, to the extent that indirect or
transferred legitimacy can suffice.
The first version of this thesis characterises the Union as an intergovernmental
organisation to which Member States have delegated a limited number of competences
for functional reasons. Economic, social and technological changes would have under-
mined the governing capacities of sovereign nation states in concrete spheres or policy
fields, requiring the creation of supranational institutions. However, the areas where
state capacities are overstretched are precisely those ‘that tend to involve less direct
political participation’.11 Because the bread and butter of electoral politics (tax, defence
and the provision of social services) is said to remain firmly in the hands of Member
States,12 the legitimation needs of supranational institutions and policies are said to be
relatively modest, and could be guaranteed by designing supranational constitution-
and law-making processes in such a way that key decision-making roles are assigned to
national representatives, so that the democratic legitimacy produced in national
decision-making processes can be effectively transferred to the supranational level.13
Thus, the democratic legitimacy of the Union does not stem from the direct democratic
participation of European citizens in supranational decision-making processes, but
from the fact that the wills aggregated through such processes are themselves the result
of democratic decision-making procedures at the national level. In addition, the func-
tional capacities of the Union supplement its derivative democratic legitimacy with the
legitimacy that stems from the contribution of the Union to governing capabilities, and,
very specifically, to the realisation of the constitutional goals enshrined in national
constitutions.14 This characterisation of European legitimacy is at the core of one of the
dominant theoretical paradigms from which European integration is explained and
reconstructed (liberal intergovernmentalism) and keeps on playing a key role in the
theorising of the relationships between Union and national legal orders, as advocated
by 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 European
Community: 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 the
will 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 Constitutionality
in 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 defined
in the Treaties.16 The legitimacy of the Union is again indirect, but in this case stems
from the plurality of national democratic decisions setting up and defining the mandate
of the Communities, and is conditioned to the loyal discharge by the Union of the tasks
it has been mandated to perform. This legitimacy is supplemented by the technical
expertise that the Union pools, and which renders possible the efficient pursuit of the
goals assigned to it.17 This second variant has had an enormous impact in scholarly
circles and also in the ‘rouages’ of European integration.18
There are two reasons why the playing down of the democratic legitimacy needs of
the EU is not convincing. First, the EU does not only claim to be a full-blown political
community, but European decisions do have massive and widespread direct effects on
citizens, which require the direct democratic legitimation of the EU. For one, the
powers and competences of the Union extend to virtually all political matters; indeed,
the acquis communitaire is extremely extensive in breadth and scope. It has been
calculated that 84% of the new norms added to the legal order of each Member State
do now originate in European law-making procedures.19 For two, Community norms
prevail unconditionally over contrary national ones, except in those cases in which they
come into conflict with national constitutional norms (the so-called European consti-
tutional conflicts).20As a result, virtually all national norms are potentially subject to a
review of European constitutionality (to which we will come back in sections III and IV
of this article). This renders it necessary to ensure the direct democratic legitimisation
of Community law. Second, intergovernmental decision-making processes convey
limited derivative democratic legitimacy, because autonomous decision-making power
is exchanged for veto rights and for veto rights only. Once the Union has exerted
law-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 alternatives
which can be conceived, no change can be introduced in the absence of agreement
among 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) 11
European Law Journal 262.
16
Key texts are G. Majone, Regulating Europe (Routledge, 1996); ‘Europe’s “Democratic Deficit”: The
Question of Standards’, (1998) 4 European Law Journal 5, especially at 16 ff.; Dilemmas of European
Integration (Oxford University Press, 2005). A powerful assessment in general democratic terms is in
P. 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 weak
decoupling thesis has also influenced the way in which the European Central Bank has conceived of its
own role. See C. Zilioli and M. Selmayr, ‘The European Central Bank: An Independent Specialized
Organization of Community Law’, (2000) 37 Common Market Law Review 591. However, this was
rejected 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 Parliamentary
Democracy’, (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 of
Case 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).

.
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 Complex

Character of the European Volonté Générale
The second basic thesis of this article is that the democratic legitimacy of the EU needs
to be assessed by reference to a nuanced yardstick, which takes proper account of the
way in which the principle of democratic legitimacy is operationalised in complex
political communities, such as the Member States of the EU, and the EU itself. In
particular, 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 between
constitution-making, law-making and regulation-making processes.
a) The Composite Character of European Democratic Legitimacy

The constitutional operationalisation of the principle of democratic legitimacy must be
based 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 of
substantive contents (first and foremost, fundamental rights)22 and on the granting
of subjective guarantees to all citizens in the process of application and adjudication of
legal norms into concrete rules applicable to specific cases.23 On such a basis, it is proper
to distinguish three pillars of democratic legitimacy, namely procedural, substantive
and 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 of
the law-making process. Democratic politics assumes that decisions must be taken, but
also that legitimacy is closely tighten to the deliberation which precedes actual decision
making. In the next section I will defend that political rights should be atuned to the
normatively 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 the
value of procedural democracy itself.25 This explains the close connection between
democratic 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 University
Press, 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 Idea
of Democracy (Oxford University Press, 1993), 71; ‘Beyond Fairness and Deliberation: The Epistemic
Dimension 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 Political
Liberalism 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 the
very pragmatic assumptions we make when we enter into real processes of democratic deliberation and
decision making.

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legitimacy). The paradigmatic institutionalisation of substantive legitimacy is the affir-

mation of fundamental constitutional rights, which mandate certain substantive
content to the legislature.26 The protection of this substance should not be regarded as
an alternative to actual democratic decision making, but as an inducement and guar-
antee of democratic decision making. Indeed, the entrenchment of fundamental rights
can provide a substantive check to imperfectly democratic decisions, acting as a cor-
rective proxy.
Third and finally, democratic legitimacy relies on adjudicative legitimacy. There are
very good reasons why authoritative adjudication is to be trusted to judges; the first and
foremost of such reasons is that judicial rulings are the most likely means to protect the
right of all citizens to be equal before the law. But it is obvious that the power of judges
to 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 procedures
designed to ensure political representativeness. Theories of legal argumentation estab-
lish criteria of sound reasoning and justification that render the exercise of discretion
more transparent and more easily reviewable in an inter-subjective manner, but cannot
eliminate a certain freedom of choice of magistrates, for both structural and epistemic
reasons.27 As a consequence, the democratic legitimacy of assigning to judges the last
adjudicative word is closely dependent on the subjective guarantees offered to indi-
viduals to address and influence courts. Such rights protect not only the subjective
individual interest in the integrity of the fundamental rights of the plaintiff, but also a
collective interest in an exercise of judicial powers which complements the procedural
legitimacy of statutes and does not undermine it.
b) The Three-Fold Distinction within the Principle of Democratic

Legitimacy: Constitution, Statutes and Statutory Regulations
The second premise that structures the present assessment of the democratic legitimacy
of the EU affirms that the principle of democratic legality must be disaggregated; in
particular, account should be taken of the fact that procedural legitimacy results from
a division of legislative labour between three main types of norm-making procedures,
namely constitution-making, law-making and regulation-making, characterised both
by a different intensity of democratic legitimacy and by the hierarchical ranking of the
norms being produced by them.28
The fundamental normative justification of this three-fold operationalisation of the
principle of legality is the need of combining the steering of social relationships through
legitimate democratic law with the right of individuals to private autonomy (which may
be overtaxed if they have to be permanently active in politics) and with the infusion of
the best inter-subjective knowledge available into legal norms. By means of distinguish-
ing different norm-making processes and ranking them hierarchically by reference to
the democratic legitimacy they transmit to the norms produced through them, we make
it possible to reduce the degree of political commitment of citizens; at the same time
that 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).

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technical and expert knowledge without the latter subverting the volonté générale. Fully
inclusive political participation is only required at the constitutional level, is voluntary
at 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 constitutional
norms. Citizens should indeed be capable of identifying themselves as potential authors
of their constitution for it to be democratically legitimate.29 Constitutional authorship
is a proper operationalisation of the regulative ideal of normative isonomy at large,
provided that two conditions are met. First, that constitutional norms establish the
basic framework of validity of all other legal norms, giving concrete legal form to the
basic values which underpin democracy as a political form (the ‘thin’ substance which
was referred above), and to the key socio-economic choices made by the political
community; at the same time, the fundamental law should define the basic contours of
both law and regulation making. Second, that the higher democratic legitimacy of the
Constitution comes hand in hand with its primacy over all other legal norms, both
when normative conflicts are to be solved and when criteria of interpretation are to be
settled. If these two conditions are met, democratic legitimacy is radiated from the
Constitution to ordinary statutes and regulations, thus playing a substitute legitimating
role to the identification of normative author and subject in norm-making processes.
The democratic legitimacy of statutes stems from the fact that ordinary law-making
processes are the key conduit for the discussion and testing of political preferences.
Democratic law making enables strong publics to mediate the preferences of general
publics, 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 less
inclusive. Not only are citizens’ voices highly mediated through their representatives
(which may eventually decide against the will of their principals), but the overall degree
of public participation and scrutiny can be lower (and tends to be so). This is why
ordinary law-making processes are indeed framed by constitutional norms, both in
procedural 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 in
relation to their specific scope of application. The very breadth and scope of integration
through 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 literally
flawed, 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 Journal
1013; ‘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 Existing
Democracy’, 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 of
Common Market Studies 401; Conceptualising European Public Spheres: General, Segmented and Strong
Publics, Working Paper ARENA 3/04; and H. Brunkhorst, ‘Globalising Democracy without a State: Weak
Public, 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 of
these norms is essentially indirect, stemming from the fact that constitutional norms
and ordinary statutes contain the basic normative choices and leave to regulatory
instruments the selection of the means to achieve such ends, and by the fact that such
processes are monitored by the ordinary law maker.
c) Representative and Deliberative Democratic Theories

It may be pertinent to add that the two premises discussed in this section have been
intentionally formulated in a rather ecumenical fashion, so that they can be supported by
advocates of different conceptions of democracy, and, in particular, by backers of both
representative and deliberative understandings of democracy. It is not my intention to
deny that there are major and very important differences between various theories of
democracy.31 And it is perhaps proper to inform the reader that the author of this article
is a committed advocate of deliberative democracy in what may be labelled a ‘radical
democratic’ fashion.32 But it also seems to me that for applied purposes (and assessing the
democratic legitimacy of the EU is one), these differences can be properly bracketed. In
particular, one could see the emphasis on processes of will formation and the alternative
focus on the depth and breadth of the deliberation that precedes any decision as the two
sides of the very same coin. It is not too adventurous to claim that partisans of
deliberative democracy have no principled reason to deny that representation and
majoritarian decision making are necessary means to operationalise the democratic
ideal.33 Similarly, supporters of representative democracy should find no serious objec-
tion to deliberative democratic ideals if understood as providing the soundest theoretical
foundation 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 premises
that have been presented in this section.
32
Perhaps the best and pungent argument is to be found in H. S. Richardson, Democratic Autonomy (Oxford
University 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 MIT
Press, 1997), 67–91; J. Bohman, ‘Deliberation and Democracy’, in J. Bohman (ed), Public Deliberation (The
MIT 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 enhance
the chances for cross-examination of political arguments (even if practice may fall well short of such an
ideal). This is the reason why, eg, many national electoral laws establish not only financial but also
temporal limits to political advertising, designating the day before polling as ‘reflection day’, during which
no 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 clarification
of arguments in the court of public reason. Indeed, the rules of procedure of national parliaments can be
read 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 and
decision-making set up characteristic of the two standard law-making processes of the
Union; (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 the
review of the European constitutionality of national laws by reference to Community
fundamental rights and economic freedoms; and (6) last but not least, the procedural
subjective 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 a

Means of Realising the Democratic Principle
The first source of democratic potential of the EU is to be found in the national
constitutional mandate to integrate explicitly or implicitly enshrined in the constitu-
tions of all Member States; this does not only imply that integration is constitutionally
sanctioned, but also reveals the democratising potential of the Union. The very size and
scope of its institutional structure and breadth of its decision-making process create the
conditions under which it is possible to recouple the constituency of those affected by
legal norms and that of those who have the chance to deliberate and decide on the said
norms.
It is a fact that national borders cut across intense webs of supranational societal
relationships, which have been genuinely transnational for centuries. The integration of
a de facto European society by fully independent national legal orders is bound to give
rise not only to dysfunctionalities (which could still be mitigated through the smart
design of national rules of private international law)35 but also to huge democratic
shortcomings. By affirming themselves as unbounded sovereigns, the classical Westpha-
lian nation states could affect the lives of nationals of other European states, while
denying them any say over the relevant decisions. In the last century, Europeans have
learned from two successive disasters that a system of sovereign nation states can end
up undermining national democratic systems, and bring about confrontation and
large-scale war.36 Quite obviously, the causal chain leading to the two world wars of the
twentieth century is a large and complex one, but it is hard to escape the conclusion that
the lack of a common institutional framework, and of common norms of action which
could solve conflicts and coordinate action in view of common goals, played a relevant
role 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 with
regard 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 nineteenth
century, and even by some of the champions of nation states, such as Pasquale Stanislao Mancini (see his
Della 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) 5
Constellations 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 the
peace, stability and prosperity of the continent. This connects post-war integration
initiatives 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 constitutions
written in the immediate aftermath of the Second World War. If we limit ourselves to
the 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 Rome
Treaties in 1957.42 These international and proto-European constitutional clauses must
be regarded not only as the late fruit of democratic and cosmopolitan conceptions of
international law, but also as forerunners of the explicit European clauses that have
been introduced in the constitutions of many Member States.43
To the extent that the EU is the closest realisation of the mandate to integrate
enshrined in the said national constitutional clauses, European law must be seen as
enjoying democratic legitimacy because it is the means of choice through which
national 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 under
which 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) 14
Recueil 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 droit
constitutionnel’, (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 in
B Mirkine-Guetzevicth and G. Scelle (eds), L’Union Européenne (Librairie Delagrave, 1931). In the war
period, 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 United
Nations (Munksgaard, 1950).
41
See Preamble of the 1946 French Constitution; Art 11 of the 1947 Italian Constitution; Art 24 of the
German Constitution; It must be added that even if the Luxembourgeois constitution did not still contain
anything vaguely resembling a proto-European clause, the Conseil d’Êtat constructed its fundamental law
with 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 sovereign
powers if the public good so required (as indeed was the case). By 1957, both the Dutch and the
Luxembourgeois constitutions had been amended. See Arts 63 and 67 of the Dutch Constitution as
amended 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 active
participation of the state in multilateral international institutions, which necessarily implied a collective
exercise 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 which
treaties should be negotiated, signed and ratified, and the place they should occupy within the national
system of legal sources.
43
On European clauses, see M. Claes, ‘Constitutionalising Europe at its Source’, (2005) 24 Yearbook
of European Law 81 and C. Grabenwarter, ‘National Constitutional Law Relating to the EU’, in
A. Von Bogdandy and J. Bast, Principles of European Constitutional Law (Hart, 2006), 95–144; on more
recent clauses, see A. Albi, ‘ “Europe” Articles in the Constitutions of Central and Eastern European
Countries’, (2005) 42 Common Market Law Review 399.

.
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. But
my point here is indeed a very modest one, and is circumscribed to the democratic
potential of European law. Because the EU can be regarded as a concrete institutional
embodiment of the ideal of integration and peace through law, it can legitimately claim
to have a democratising potential.
It could be objected that the innovative international clauses of the post-war period
contained no explicit reference to either European integration or to the treaties estab-
lishing the three original European Communities; thus, they could not ground the
democratic legitimacy of the EU. However, this lack of specificity does not undermine
my present claim. A precise allusion was in most cases simply impossible given that the
national constitutions were approved before any of the European communities were
established. In all cases, it would have been inappropriate to make such references
before concrete institutions became consolidated. Several alternative projects of
European 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 order
to (eventually) ratify as many treaties as needed before a really successful set of
common institutions took hold. Because the founding Treaties actually rendered it
possible to transcend the system of sovereign nation states, they were democratically
endorsed, 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 national
constitutions as the fundamental set of constitutional norms of the supranational legal
order. This double constitutional role of national fundamental laws derives from the
synthetic character of the process of European legal integration.
It is widely accepted that the EU is a constitutional legal order, but it is far from
obvious why this is so, how it became so, and whether the outcome is to be regarded as
adding to, or diminishing from the democratic legitimacy of the EU. The European
Communities were established as international organisations, and their legal order
seemed to have been constructed in the template of international law. Indeed, there has
been no actual exercise of a European constituting power, either collectively or as an
aggregation of national powers . The Union misses so far a constitutional moment, or
to put it differently, we can speak of European constitutional law, but hardly of
European constitutional politics.45 On such a basis, one may be tempted to assume that
the lack of a written constitution, and of a democratic constitution-building process, is
at the core of the democratic troubles of the EU.
But reaching such a conclusion would be precipitated. The process of European legal
integration has neither been one based on the revolutionary establishment of a demo-
cratic constitution, nor one of evolutionary outgrowth of an international legal order
into a constitutional one, but one of progressive ‘synthesis’ of national constitutional
orders. 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 orders
are expected to merge progressively; but in the meantime, the constitutional identity of
each 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 their

substantive content or validity basis. What is usually missed is that this process of
constitutional synthesis reveals a democratic alternative to the exercise of the pouvoir
constituent for the establishment of a political community. Such an alternative is no
other than the very idea of a ‘common constitutional law’ as a temporary substitute of
a written democratic constitution. What is indeed characteristic of European integra-
tion is that the collective of national constitutional norms has been seconded as the
fundamental set of constitutional norms of the EU.46 This process is not based on the
mere juxtaposition of national norms on the basis of the common minimum constitu-
tional denominator, but on a genuine combination, in which idiosyncratic and deviant
national 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 of
protection of fundamental rights, which the Court of Justice reminded us, in its line of
cases starting in Stauder,48 was an unwritten principle stemming from the common
constitutional traditions of the Member States which had been part and parcel of
Community 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 turn
radiate 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 it
differently, the legitimising role played by the standard democratic process of consti-
tution making is substituted in the EU by the transference of the democratic legitimacy
of the common constitutional norms of the Member States to European constitutional
law.
The legitimising role of the common constitutional traditions is not only capable of
explaining the legitimacy of characterising the EU as a constitutional order (as it
implies 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 and
not mainly in its founding Treaties, but in the constitutional law common to the
Member States), but also the actual democratic legitimacy of Community norms. To
the extent that the validity of all European norms is dependent on their compatibility
with supranational constitutional law, and such law is formed by the collective of
highly democratic national constitutions, there is a transfer of legitimacy from national
constitutional norms to European norms.
C Ordinary Law Making

The third source of democratic legitimacy of the EU is the legitimacy generating
capacity of Community law-making processes. Both the standard Community method
and 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 du
Droit Européen 487.
47
Although European integration results in the transformation of both substance and validity, but in
indirect ways.
48
See Case 29/69, Stauder v City of Ulm [1969] ECR 419, para 7: ‘Interpreted in this way, the provision at
issue contains nothing capable of prejudicing the fundamental rights enshrined in the general principles of
Community 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 with
either the aggregate general will of Member States (as is the case in the Community
method) or with a composite made of the qualified majority of aggregate national wills
and the majoritarian will of the direct representatives of European citizens sitting in the
European Parliament.49
As is well known, the founding Treaties established permanent European institutions
and assigned to them law-making powers;50 in concrete, European institutions were
made competent to issue regulations and directives. The very name of the said legal acts
comforted those who conceived the Communities as a supranational agency (a view to
which the advocates of the weak decoupling thesis still subscribe), and consequently
defended that Community acts were to be conceived as regulatory norms implementing
the founding Treaties (themselves to be constructed as the framework laws of the
Communities).51 However, the substantive questions to which regulations and direc-
tives were to be applied starkly contradicted the characterisation of regulations and
directives as mere implementing norms. Community law was supposed to regulate
matters 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 solution
was rendered possible by the fact that the ordinary Community method of law making
guaranteed the transmission of legitimacy from democratic national decision-making
processes to supranational ones, by means of defining the European general will as the
unanimous aggregation of national general wills as expressed by national governments,
in their turn accountable before national parliaments for their European decisions. If
the 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, forged
through a democratic process in each and every Member State.
Since the Maastricht Treaty, an alternative definition of the general European will
has been established. The so-called co-decision procedure grants the European
Parliament co-legislative powers by means of adding new procedural steps on top of
those characteristic of the ordinary Community decision-making process. In most
cases, this goes hand in hand with the redefinition of the voting rules according to
which national common wills are aggregated in the Council; a qualified majority of
votes, 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 votes
against 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 be
characterised as variants of the two main types: the classical Community method and co-decision. See
the empirical analysis in F. Losada and A. J. Menéndez, ‘Toma de Decisiones en la Unión Europea’, in
F. Rubio and P. Biglino (eds), El Informe del Consejo de Estado sobre la inserción del derecho comunitario
en 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 by
parliaments furnishes us with solid evidence. In the jurisprudence of the European Court of Justice this
becomes crystal clear when considering the ‘division of labour’ which should prevail between regulations
and directives and ‘implementing’ regulations and directives produced through ‘delegation of powers’ to
comitology 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 general
wills, 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 the
federal character of the EU, to the extent that aggregated national wills are necessary
to form a general European will, but such a will can be forged even if some national
governments oppose the measure.53
The democratic legitimacy of regulations and directives is supplemented by the
structural democratising effects of the establishment of a supranational legal order.
European laws are alternatives to undemocratic national norms, to the extent that they
have major effects across borders but national political processes exclude non-nationals
affected by the laws from the law-making process. Moreover, European norms replace
in many cases what de facto were privately made norms of a dubious democratic
legitimacy. This was very clearly the case with both the Treaty which established the
Coal and Steel Community and the secondary law which evolved afterwards, given that
it reappropriated for public institutions powers which had slipped into the hands of
private cartels;54 it certainly is also the case in many concrete areas of the economic
regulation produced by the Communities.
D The Specific Means of Implementing Laws in Union Law: Comitology as a

Means of Producing Regulations
The fourth source of democratic legitimacy of Community law is to be found in the
democratic properties of the process of implementation of regulations and directives
through comitology decisions. In particular, comitology ensures a higher democratic
legitimacy of the resulting statutory regulations than classical national regulatory
processes.
The founding Treaties of the Communities did not foresee any decision-making
procedure 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 norms
needed to realise the objectives of the Treaties, especially in fields such as agricultural
policy.55 The members of the Council could not spend their time doing that if they
wanted to perform their main job properly, which was being national ministers. Time
management was indeed a key reason behind the transformation of the Council from
a single body into a hierarchical trinity consisting of (1) the Council of Ministers
proper; (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) 28
Common Market Law Review 11 and S. Oeter, ‘Federalism and Democracy’, in A. Von Bogdandy and
J. 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 of
Ministers’, (2005) 12 Journal of European Public Policy 609.

.
this trinity could recruit the expertise and specialised knowledge that was needed in
order to produce effective implementing regulations and directives.
The combination of functional requirements and the absence of a constitutionally
embedded regulatory decision-making process led to outright experimentation under
the formal cover of ‘delegation of powers’. The Council ‘delegated’ law-making power
to the Commission, while at the same time placing it under the control of the national
representatives who formed the bulk of the committees.
Comitology contributes to the democratic legitimacy of the EU in two different
respects. 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 the
contents of implementing norms without having to discharge the task directly. This was
always the case with regard to the Council, and is now also the case (after the adoption
of the new Comitology decision in 2006), with regard to the European Parliament,
although with certain limitations.58 True, the division of labour between statutes and
regulations is far from neat in European Community law, in part as a consequence of
the refusal of the European Court of Justice to affirm the hierarchical character of the
relationship between, on the one hand, regulations and directives and, on the other
hand, implementing norms.59 This may occasionally result in implementing norms
whose 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 and
maximisation of the chances of getting at the substantively correct norm.60 Second,
comitology committees are composed of representatives of national governments who
contribute through their technical, scientific or local knowledge to the quality of the
resulting 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 the
committees.61 All these features of comitology contribute directly and indirectly to the
impartiality and fairness of implementing regulations and directives.
E Legitimacy through Substance: Economic Freedoms, Fundamental Rights

and the Review of European Constitutionality
The fifth source of democratic legitimacy of the EU is the practice of reviewing the
validity of all national norms by reference to the canon of European constitutionality
made of the fundamental rights (stated explicitly by European Court of Justice in its
case-law, and lately codified in the Charter of Fundamental Rights) and the economic
liberties (free movement of goods, free movement of workers, freedom of provision of
services 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, ‘Deliberative
Supranationalism: Two Defenses’, (2002) 8 European Law Journal 133.

.
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 liberties
operationalise the right of a resident or economically active non-nationals to be treated
in the same way that nationals are dealt with; a right which is more likely to be infringed
than that of citizens for the very simple reason that European non-nationals are denied
the right to vote in national elections and, as a consequence, lack in most cases direct
means to influence the actual content of legislation. Their right not to be discriminated
through the enjoyment of Community fundamental rights and economic liberties com-
pensates the democratic pathology stemming from the mismatch between the circle of
those affected by national laws and those entitled to participate in the deliberation and
decision making over national laws.62
Although formally claiming to limit themselves to the interpretation of Community
law, both the European Court of Justice and national courts have engaged in the
practice of European constitutional review of national legislation for a long time, and
at the very least since the ruling of the Luxembourg Court in Van Gend en Loos,63 and
the acceptance of the implications of the rulings in both Van Geed en Loos and Costa
by national courts.64 Formally speaking, this power is said to be grounded on the
Treaty provision which mandates the Court of Justice to become the guardian of the
Treaties in their interpretation and application,65 and thus review the ‘legality’ of all
acts of Community institutions.66 The development of the canon of European consti-
tutionality has proceeded through the affirmation of the binding character of specific
rules contained in the Treaties (Van Gend en Loos), later extended to principles
enshrined in the Treaties (Augusta Stier)67 and, finally, to unwritten constitutional
principles 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), The
Federal 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 Community
law 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 at
least three cases the European Court of Justice has left aside national constitutional norms in conflict with
Community 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 should
be 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 Case
C-285/98, Kreil [2000] ECR I-69 (the conclusions of the court can only be upheld in defiance of the clear
literal 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 had
insisted 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 of
Community 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 Legal
Studies 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, by

spelling 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 of
national norms which are eventually to be reviewed by reference to the European
canon.71
The effective protection of both the fundamental rights and the economic liberties
enshrined in the Treaties can also be said to be a basic precondition for the effective
protection of all fundamental rights of all Europeans. The soundness of such a claim is
supported 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 guarantees
that Community law grants European citizens and, in particular, the rights that
empower 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 from
national 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 is
usually triggered by European citizens. In particular, individuals (and even more often
corporations) might request national courts to set aside national laws on account of
their incompatibility with Community constitutional standards (something which
national courts can decide to do either on their own or after consulting with the
European Court of Justice through the preliminary request envisaged by Article 234
TEC). More exceptionally, Europeans may request directly from the European Court
of Justice the annulment of a Community regulation or directive provided they can
prove that the said norm affects them directly and individually, as required by Article
230 TEC (a standard which is, however, rarely considered as satisfied by the European
Court 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 the
procedures through which Community law was to be applied by national courts was
left 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) 24
American Journal of Comparative Law 343; J. Weiler and N. J. S. Lockhart, ‘Taking Rights Seriously: The
European Court and its Fundamental Rights Jurisprudence’, (1995) 32 Common Market Law Review 51
and 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 of
new derivative fundamental rights norms, see, eg, J. Kühling, ‘Fundamental Rights’, in Von Bogdandy
and 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 the
Free Movement of Goods’, in P. Craig and G. de Búrca, The Evolution of EU Law (Oxford University
Press, 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 new
competences areas to the Communities. Thus, the establishment of the third pillar ended up subjecting
national criminal law to the review of European constitutionality. Cf Case C-105/03, Pupino [2005] ECR
I-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 left
unlimited, national procedural autonomy would seriously compromise both the effi-
ciency of Community law and also the equality of all Europeans before common
European norms; the court therefore moved to affirm that national autonomy is limited
by the principles of equivalence and effectiveness of national remedies.73 Equivalence
requires that national procedural remedies available in case of breach of a Community
right be no less favourable than those at the disposal of citizens when national rights are
infringed. Effectiveness casts the shadow of unconstitutionality upon national proce-
dural norms which render impossible or too cumbersome the exercise of Community
rights.74 As a result, Community law has granted new remedies to individuals, by means
of 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 of
Community law at certain stages of the process,76 or constrain the right of access to a
court,77 or result in the denial of injunctions.78 The case-law seems to be bound to come
full circle as the court has started to affirm that national procedural systems should
ensure the effective judicial protection of citizens qua European citizens and subjects of
Community law.79
Procedural rights contribute to close the ‘democratic gap’ which unavoidably results
from judicial adjudication. In particular, they increase the breadth and scope of the
interests being considered by both the European Court of Justice and national courts
when reviewing the compatibility of national law with Community constitutional
standards. In particular, it opens up the possibility that minority constituencies, which
are under-represented or simply unrepresented within each Member State, make their
voices 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 of
interests.
IV The Democratic Shortcomings of the EU

The democratic surpluses of the Union come hand in hand with four democratic
shortcomings, 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 main
law-making procedures; (ii) the structural bias in favour of certain substantive contents
stemming from the division of legislative labour; and (iii) the insufficient interconnec-
tion of European publics; all three further aggravated by the unconditional supremacy
that Community law pretends to enjoy over conflicting national norms; (3) the
undemocratic 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 of
the 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 of
the democratic legitimacy of the EU. But as time passes, the ‘legitimacy’ light of the
common constitutional traditions is bound to fade progressively. This is so because the
mostly undetermined character of the common constitutional law (a regulative ideal
only 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 applying
European constitutional law. It is thus not surprising that the legitimacy gap has not
been bridged, but, on the contrary, the courts have occasionally developed lines of
jurisprudence which result in ‘dérapages’ from the common constitutional law, to the
extent 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 process
of constitutional synthesis. Within such a process, the creation of a supranational
constitutional order is legitimised by the definition of the substantive content of Euro-
pean constitutional law by reference to the regulative ideal of a common constitutional
law, 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 to
be more precise, non-explicit, as what was common in the common constitutional
traditions was only partially established in the constitutional provisions enshrined in
the founding Treaties, or in their successive amending acts. Most of the contents of
European constitutional law were thus to be distilled from the ‘raw’ source of European
constitutional law, namely the six founding constitutions.
There are three sets of reasons why the ascertainment of the specific contents of the
common 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 the
common constitutional norms. First, the ascertainment of national constitutional
norms is far from being a straightforward practice. In particular, it requires a system-
atic interpretation of the formal, written constitution which is rendered complicated by
the fact that the correspondence between the formal and the material constitution
varies across legal systems. While the more recently approved or amended national
constitutions usually reflect fully and faithfully the set of actual constitutional norms (ie
the ‘written’ and the ‘living’ constitution tend to overlap), older fundamental laws
incline to be a partial rendering of constitutional law as practised, given that the formal
constitution is progressively shaped and, on occasions, surpassed, by evolving consti-
tutional practices and conventions. In both cases, the elucidation of constitutional
norms is a tall task, but clearly a taller one for those who have not been trained in the
intricacies of the national legal system. If the constitution is rather new, the actual
meaning of the general principles enshrined in the constitution will not be coupled with
a explicit set of derivative constitutional rules. If the fundamental law is rather old, the
construction 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 of

national constitutional norms, ‘competing’ to embody the common constitutional
norm. If normative clashes of national constitutional norms are still rare, this is so
because of the structural affinity between national constitutions, ensured by the demo-
cratic conditionality of membership of the Communities since its very foundation. But
still, there is quite some room for conflict. For one, there are substantive differences
concerning the ranking of fundamental rights, ie the rights that should be regarded as
fundamental, and the consequences which stem from that characterisation when
solving normative inconsistencies. For two, there remain differences on the actual
weighing and balancing of conflicting fundamental rights, in some cases due to the
different ranking of the rights, in others to the choice of different derivative rules to sort
out 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. All
national constitutional norms were drafted and established with a view to organise and
structure a national political community, and were not intended as the framework of a
process of supranational integration. Because the social, economic, political and legal
contexts of the European and the national constitutions are somehow different, it may
be necessary to ‘adapt’ the common constitutional norm to the context of integration.
This may explain, for example, the apparently different ‘ranking’ of economic liberties
in European and national constitutional law, already ‘settled’ in the founding treaties.
The ‘democratic’ gaps deriving from the three just mentioned sets of problems are
compounded 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 national
contexts). This is so because there are no supranational debates to be consulted, and
too many national debates on offer (something which derives by definition from the
synthetic character of European constitutional law). Second, it is questionable whether
constitutional construction should regard debates in any European public (strong or
weak) as a relevant reference, in the same way that the interpretation of national
constitutional norms evolves by reference to national general publics, especially as
mirrored in the quality media, and to national strong publics. We can even question
whether there is such a thing as a European political debate. The very low degree of
political communication and interaction across national borders, together with the low
turnout at European Parliament elections, cast a long shadow of doubt over the
Europeanisation of national public spheres, and an even larger one over the idea of a
European public sphere. Third, the specific institutional set up of the EU leads to a
division of the labour of constitutional construction which empowers institutions with
an 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 one
which leaves an unusually large margin of discretion to constitutional interpreters.
And consequently, it creates the structural conditions under which the supranational
definition of the common constitutional law could become not only autonomous, but
independent from and contradictory with national constitutional norms (the above-
mentioned ‘dérapage’), which will unavoidably diminish the democratic legitimacy of
European constitutional law. Whether a ‘dérapage’ has happened can be determined by
considering whether a specific derivative constitutional norm affirmed by the European
Court of Justice can plausibly be said to result from a systemic interpretation of
Community 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 sole
purpose of avoiding the regulatory framework of another Member State (and thus, to
engage into ‘law-shopping’ by means of establishing themselves in countries in which
they have no economic link).80 This definition of the breadth and scope of one of the key
economic liberties does not only seem to overrule previous rulings of the court (and
contradict the conclusions of some Advocates General),81 but is hard to justify by
reference to national constitutional norms, all of which assume a connection between
the exercise of economic freedoms and actual economic activity. The court has also
failed to substantiate its claim that such independent interpretation would be required
by 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’, the
more likely it is that specific decisions open up lines of jurisprudence which end up
weakening the legitimacy link between individual national constitutions and the
common 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 on
past decisions (and increasingly only on past decisions), as their task is that of developing
a coherent case-law. However, it is still the case that the legitimacy of their judgments is
dependent on the European Court of Justice being capable of presenting itself as the
guardian of the decisions taken by the puovoir constituent against the constituted powers
of the state.83 Even the constitutional court with more self-referential proclivities has to
pretend to take good notice of constitutional debates and of debates on constitutional
issues which take place in strong publics. But European courts, both the European Court
of Justice and national courts discharging European constitutional tasks, simply do not
have such reference points. This is why there are more European slippery slopes leading
to 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 the
structural conditions under which the democratic principle could be realised at a
European scale. The fact that Community law-making procedures forge a general
European will by means of testing if there is either an aggregate national will (ordinary
Community decision making) or a double will composed of a qualified majority of
national 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 Case
C-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 AG
can be read in [1988] 3 CMLR 713, at 718). The ruling of the court assumes the necessary existence of a
real 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 ruling
in Case C-196/04, Cadbury Schweppes, para 55 of the judgment, which narrows down spectacularly the
concept of tax avoidance.
83
See C. Santiago Nino, ‘A Philosophical Reconstruction of Judicial Review’, (1993) 14 Cardozo Law
Review 799; and B. Ackerman, ‘The Political Case for Constitutional Courts’, in B. Yack (ed), Liberalism
without Illusions. Essays on Liberal Theory and the Political Vision of Judith N. Shklar (University of
Chicago Press, 1996), 205–219; G. Zagrebelsky, Principì e voti (Einaudi, 2005).

.
establishes the democratic legitimacy of European law prima facie. However, it does
not offer conclusive evidence of their final democratic legitimacy.
Specifically, we can individuate three major democratic shortcomings in the design of
European lawmaking and, in particular, (1) the insufficient intertwinement of Euro-
pean publics weakens the influence of general publics over law making; (2) the division
of 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 links
in the chain of democratic legitimacy. Additionally, (4) the affirmation of the primacy
of Union law over national law in case of normative conflict aggravates the democratic
implications of the three shortcomings just mentioned, to the extent that a higher legal
force is attributed to norms which have inferior democratic credentials, subverting the
hierarchy required by the principle of democratic legitimacy.
a) The Insufficient Europeanisation of National Publics

The emergence of European publics84 would require the interconnection of local,
regional and national publics, so that the agenda of political debate will be roughly
similar and discussions will be contemporary in all Member States. Only then could
arguments flow across borders and influence the debates of supranational strong
publics, such as the European Parliament. But leaving aside short-lived exceptions
triggered by rather exceptional events, European general publics remain insufficiently
interconnected and, as a consequence, have a weak and erratic impact upon the
formation of the European general will as enshrined in regulations and directives. This
state of affairs is easy to explain by reference to sociological facts such as the plurality
of languages spoken across the Union, or perhaps more exactly, the absence of one
lingua 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 of
European institutions themselves, constitute further obstacles to the Europeanisation
of national public spheres. As liberal inter-governmentalists have stressed, the process
of European integration tends to reinforce (at least some) national cleavages.85 The
central position of some national institutions, such as governments, turns them into
the main vehicle of societal claims and creates the proper incentives to encourage
them 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 a
monistic analysis is of dubious utility. There will never be a European public sphere, in the same way as
there is no German, French or Italian public sphere, but a set of interconnecting public spheres which can
be 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 periodic
construction and reconstruction of alleged national interests by national exchequers. The balance between
what a Member State transfers to the Union and the total sum of the transfers from the European budget
to its citizens becomes the major reference point in the debates. This prevents the analysis of the question
from 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 tax
issue. 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 debates
and, 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 the
European Central Bank) as articulators of the European interest.
As long as European publics remain weak, critical democratic functions, such as the
insertion of viewpoints, information and arguments into the agenda of institutiona-
lised, strong publics, will remain unfulfilled.87 Only a genuine European public could
ensure the fairness and completeness of the European political agenda.88
b) The Structural Substantive Bias of Community Law

The division of legislative labour between the standard Community method and
co-decision creates a structural substantive bias in European law in favour of norms
that increase the depth and breadth of economic liberties, and against norms that
correct market outcomes in line with the socio-economic principles characteristic of the
Sozial Rechtsstaat, affirmed in the constitutional law of all Member States. This results
in a serious democratic problem, because what formally speaking are neutral decision-
making processes, in reality are ‘loaded’ in favour of a specific understanding of the
EU.
As long as the European general will was exclusively defined as the aggregation of
national 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 therefore
there was no structural democratic deficit to speak about.
The addition of a ‘composite’ definition of the European general, first tentatively
with the cooperation procedure, and then boldly with co-decision, has been generally
perceived as contributing to the democratisation of the Union, to the extent that it
eliminates the veto power of single Member States, and thus removes the power to
oppose European laws without offering supporting arguments;89 and given that it
empowers the European Parliament to the detriment of the Council, which implies
acknowledging the relevance of the general will of Europeans qua supranational citi-
zens; a necessary step in the consolidation of a genuine European democracy. Still, it
should be kept in mind that co-decision has also come hand in hand with an implicit
distinction between the set of norms aimed at the further realisation of economic
liberties (market making), which are generally approved through co-decision; and the
norms aimed at correcting the distributive outcomes of the functioning of the single
market (market-correcting, welfare-related measures) which can only be transformed
into 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 conceptions
of their relationship. Once this particular conception is positivised into European
constitutional 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 30
supra, at 677.
89
Unanimity may be the regulative ideal of decision making for theories of deliberative democracy, but it
is definitely not the proper operationalisation of that ideal of deliberative democratic legitimacy. See
Richardson, op cit n 32 supra.

.
Community method and co-decision, the scope of democratic decision making is

dramatically reduced, because how economic liberties and fundamental rights are to be
related is indeed one of the key democratic decisions. Second, it renders easier (and thus
more probable) the adoption of market-making rather than market-correcting norms,
because forging a general will under co-decision is statistically more probable than
under 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 the
market-making competence of the Union, and thus decreases the capacity of public
institutions to steer the economy in the Union as a whole, while empowering specific
private 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 for
being so).90
c) Missing Links in the Chain of Democratic Legitimation

The democratic legitimacy of regulations and directives is seriously hampered by the
lack of transparency in the functioning of the European Council. This is so because
secrecy weakens all links in the chain of democratic legitimacy; as a consequence, the
actual 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 that
the Rules of Procedure of the Council are even stricter in this case, and given that the
disempowerment of the European Parliament decreases the chances of getting the full
picture of the debates within the Council.
The publicity of Council’s meetings, even after the 2002 amendment of the rules of
procedure,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 as
such, and does not extend to the meetings of the Commité des Représentants Perma-
nents (COREPER), the preparatory committees or the working groups. This entails
that 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 a
decision taken by bodies still fully protected from the public light. Second, even with
regard to meetings at the ministerial level, publicity is severely constrained. As was
already 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. When
the 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 from
a 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, Opening
Council Meetings to the Public when the Council is Acting in Accordance with the Procedure for Codecision
with 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 Council
of 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 in
R. Laming, Openness and Secrecy in the EU Institutions: Lessons from the EU Sugar Regime, Federal
Trust 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.

.
procedure is applicable), publicity only extends, according to Article 9.1 of the Rules of
Procedure, to the ex-post publication of ‘the results of votes and explanations of votes
by Council members, as well as the statements in the Council minutes and the items in
those minutes relating to the adoption of legislative acts’.
Secrecy creates and reinforces the informational and capacity asymmetries which
plague the relationship between national executives and national parliaments on Euro-
pean issues. It precludes national parliaments from having sources of information
alternative to the accounts offered by national ministers (or regional ministers in some
federal countries) sitting in the meetings of the European Council. This renders it
difficult not only to know what has actually been said in such meetings, but especially
why decisions were adopted. This relativises the actual efficiency of even the most
sophisticated systems of accountability, for the very simple reason that ministers may
escape censure by moulding the facts to fit their interests.94 The full institutional
autonomy of each nation state when designing the system of parliamentary control of
national ministers sitting in the Council comes at the price of depriving parliaments of
what could be an additional source of information, if there were some commonalities
in their procedures, and channels of information sharing and common action were
established.95
It is true that in recent years the Council has increased the publicity of even its
internal documents;96 and, in a similar vein, the Commission has made much of its
willingness to pay attention to ‘stakeholders’.97 However, the idea of ‘stakeholder
accountability’ 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 general
publics, 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 a
view 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 also
R. Holzhacker, ‘National Parliamentary Scrutiny over EU Issues. Comparing the Goals and Methods of
Governing and Opposition Parties’, (2002) 3 EU Politics 459.
95
In that regard, the contribution of the flamboyant Dutch parliamentarian Hans Van Baalen to the
referred Working Group of the Convention is rather telling, even if focused on the efficiency, and not so
much 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 to
Council 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 access
to European Parliament, Council and Commission documents, [2001] OJ L145/43. The background and
a critical assessment is given in D. Curtin and H. Meijers, ‘Access to EU Information: An Element of
Citizenship and a Neglected Constitutional Right’, in N. A. Neuwahl and A. Rosas (eds), The EU and
Human Rights (Martinus Nijoff, 1995), 77–104; E. Chiti, ‘The Right of Access to Community Information
Under the Code of Practice: The Implications for Administrative Development’, (1996) 2 European Public
Law 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 (the
question 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 to
Democracy via Participation?’, (2007) 3 Journal of Civil Society 205.

.
d) Supremacy Amplifies the Democratic Shortcomings of European Law

Making
The abovementioned three democratic shortcomings of European law making are
amplified by the primacy of Community over conflicting national law. Primacy of
Union law can easily be justified in the name of the principle of equality before the law
of all European residents, and, as such, be traced back to the constitutional traditions
common to all Member States.100 However, the supremacy of Community law is
problematic if it implies giving preference to a piece of legislation that, at least in terms
of procedure, is potentially less democratically dignified than the one being left aside.
The democratic fragility of Community legislation explains the rage occasionally
expressed when the European Court of Justice or a national court gives preference to
Union over national law. It also accounts for the periodic irate judgments of national
constitutional courts.101
C Legitimacy through Substance: The Perils of the Widening of Economic

Freedoms and of a Judge-Made Bill of Rights
There are two serious democratic problems with the substantive principles of European
constitutional law. The first is the redefinition of economic liberties as legal powers
aimed at the removal of ‘obstacles’ to the creation of a single market. This results in
breaking the democratic legitimacy chain from national constitutions to economic
liberties passing through the principle of non-discrimination on the basis of nationality,
without establishing an alternative democratic basis for the said liberties. The second is
the specific legal technique through which the court ‘internalised’ fundamental rights
into European constitutional law (the affirmation of a general principle of protection of
fundamental rights). This left largely undetermined not only the set of fundamental
rights, but also the relationships that should be established among them. This has
created a wide margin of discretion and multiplied the chances of constitutional
dérapages.
First, the European Court of Justice has recharacterised economic liberties. From
being operationalisations and concretisations of the principle of non-discrimination on
the 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 ‘single
market’. This explains the shift in the case-law of the court from the determination
whether national norms were discriminatory against non-nationals, to whether they
constitute obstacles to the creation of the single market (a shift which has also resulted
in shrinking the scope of the ‘reverse discrimination’ doctrine). From a democratic
perspective, this transformation is extremely problematic because it implies a radical
alteration of the ultimate source of the canon of European constitutionality. As long as
economic liberties are understood as concrete formulations of the principle of non-
discrimination on the basis of nationality, the review of European constitutionality is
undertook by reference to the constitutional substance enshrined in the national consti-
tution and/or the common constitutional law of the Member States. But once economic
liberties 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 and
A. 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, but
the 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’ as
enshrined 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 different
points in time, tends to assume that there is only one correct understanding of what a
single market is, thus ‘transcendentalising’ the idea of a single market, and implicitly
appointing itself as the only legitimate interpreter of what it entails.
Second, the Court of Justice ‘internalised’ fundamental rights into Community law
in the case-law led by Stauder and Internationale. It did so by means of a rather specific
legal technique, namely by affirming that a key constitutional principle of Union law
was the ‘protection of fundamental rights’. This implies that all the concrete rights
acknowledged 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 in
leaving open the question of which were the fundamental rights of the EU, but also
which were the principles governing their relationships (usually established in national
constitutional 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). This
has 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 democratic
shortcoming stemming from the division of labour between the standard Community
method and co-decision (see section IV.B.b). Not only is the argumentative burden
shifted against the states aiming at realising socio-economic objectives which may have
non-discriminatory incidental effects on the four economic freedoms, but ‘commodi-
fied’ and ‘monetarised’ relationships are extended to social realms where the national
constitutional 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 Fundamental
Rights of the EU might be interpreted as alleviating some of these problems and
assuaging some democratic concerns. The Charter establishes a catalogue of rights
with an internal structure, within which it is possible to distinguish not only between
fundamental rights proper and general principles aimed at guiding legislation, but
also between provisions which express a fundamental subjective right position and
others which express a common good. This reduces the realm of discretion when
weighing and balancing conflicting fundamental rights.105 Moreover, the Charter was
elaborated 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 Journal
360.
103
Case C-85/96, Martinez Sala [1998] ECR I-2691; Case C-413/99, Baumbast [2002] ECR I-7091. See
A. J. Menéndez, ‘More Human, Less Social?’, in M. Maduro and L. Azoulay (eds), ‘The Past and Future
of 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 yet
reported.
105
O. De Schutter, ‘La contribution de la Charte des droits fondamentaux de l’Union européenne à la
garantie des droits sociaux dans l’ordre juridique communitaire’, (2001) 12 Revue Universelle des Droits
de 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 of
Justice, or indeed of any court. Having said that, it is still the case that the Charter has
not been formally incorporated into Union law. Its normative contents are binding to
the extent that they represent a consolidation of pre-existing law, and to the extent
that 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 of
European fundamental rights, with the Charter making it even easier to cover discre-
tionary decisions if different sources are applied selectively. The decision of the Court
of Justice to start making reference to the Charter precisely at the time that the
Constitutional Treaty has been formally buried is not especially reassuring in this
regard.106
D Procedural Rights as Look-alikes of Structural Constitutional Principles

The present set of European procedural guarantees is problematic from a democratic
standpoint because the European Court of Justice has developed its case-law in such a
way that it consolidates the structural principles governing the relationship between
Community and national law (and indirectly the relationships between institutions) but
has 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 on
the locus standi of physical and legal persons (ie corporations) to seek the annulment of
a Community general legal norm under Article TEC 230 and the line of jurisprudence
of the competence of national courts to address preliminary questions to the Court of
Justice.
The Luxembourg judges have been extremely restrictive in the examination of
whether individuals meet the criteria enunciated in Article 230 TEC. Individuals are
denied locus standi unless they can prove that the Community act is formally a general
act, and substantively an administrative act or set of administrative acts, and that they
are the addressees of such ‘material’ administrative act.107 On the contrary, the court
has been extremely lax in the admission of preliminary questions, turning them into the
means of choice to contest the European constitutionality of regulations and directives.
The combined effects of these two lines of jurisprudence have been the nurturing and
consolidation of a working relationship between the European Court of Justice and
national courts,108 as it turns national courts into the gatekeepers of the review of
European constitutionality and, ultimately, into privileged enforces of European con-
stitutional law. Still, it is very problematic from a democratic standpoint for two
reasons. First, it creates a severe risk that the constitutionality of implementing norms
goes 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 and
58–59; Case C-411/04 P, Mannesmannröhren-Werke AG v Commission, judgment of 25 January 2007, not
yet 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, judgment
of 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 the
constitutionality of regulations and directives in Article 230 TEC. While the absence of
the 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 the
many democratic shortcomings of the European law-making process, as described in
the 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 both
the idea of the legal primacy of the constitution, but also ground each and every
fundamental right in Community law.
V Conclusion
In this article I have analysed and assessed the legitimacy of the EU from a democratic
standpoint consistent with the characterisation of the Union as a genuine political
Community. I have sustained all through the text that the ‘democratic problem’ of the
Union is better tackled by disaggregating it, by focusing on the specific democratic
pluses and shortcomings of the Union. This is what has been done in sections III and
IV. It is now time to pass an overall judgment. It seems to me that what was said in the
third section supports the conclusion that the EU can make a justified claim to its being
minimally legitimate from a democratic perspective and, thus, that there are good
reasons 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 do
indeed offer a plausible explanation of why the transfer of powers from the Member
States to the Communities has been widely accepted by European citizens (and, until
recently, 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 the
last three decades, and is slowly but steadily being depleted. Moreover, if nothing is
done about it, we are very likely to reach the point where the authority of Community
law may be seriously questioned. Given the extremely limited set of coercive resources
at 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 the
process has already started, such as the end of the ‘permissive consensus’ and the
radical shift in the default attitude of European publics towards integration (as
reflected in the three negative outcomes of the constitutional referenda in France, the
Netherlands and Ireland).
A central thesis of this article is that the democratic legitimacy equation of the Union
can only be explained if we take seriously the specific character of European legal
integration and, in particular, if we realise that the EU and its constitutional law is the
outcome of a process of constitutional synthesis. The regulative ideal of a common
constitutional law infused the new order with democratic legitimacy in lieu of that
stemming from a revolutionary act of constitution making or from the slow evolution
of a constitutional order. But at the same time, the legitimising force of the common
constitutional law is bound to decline as time passes. As it becomes imperative to
render explicit the actual contents of the common constitutional law, the European
Court of Justice is trapped in a dynamics in which it is required to take increasingly
concrete decisions, but lacks any political framework of reference (contrary to what is
the case with national constitutional courts when called to discharge their more limited
tasks), 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. Under
such circumstances the chances of mistakes and constitutional ‘dérapages’ can only
increase over time. These conclusions unavoidably pose the further question of what is
in stock for the EU. Prediction is not the favourite cup of tea of this author, but it may
not be too adventurous to claim that the process of deterioration of the democratic
legitimacy 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 the
Constitutional Treaty and the Lisbon Treaty (with the latter in a critical legal condition
requiring intensive political care), this may sound naïve at best. But it seems to me that
if both processes failed, it was because they were based on a wrong constitutional
theory; they were premised on a wrong understanding of how a synthetic political
community is to be explicitly constitutionalised. On the one hand, the Laeken Treaty
amendment 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 stable
channels of cross-European political communication, and of a genuine proposal of
constitutional change, any process which presents itself as ‘constitutional’ is bound to
fail. On the other hand, Lisbon was presented as a grand diplomatic bargain. But
European leaders were oblivious to the fact that the Laeken Treaty amendment process
was a ratification failure that revealed to all Europeans the constitutional nature of the
Union. As a result, we are well beyond the point at which citizens will tolerate an
enlightened constitutionalism that excludes them. What the EU urgently needed was
thus an intermediate step in constitutional clarification, which would have rendered
explicit how the Union was constituted, and would have facilitated the later articulation
of an agenda of constitutional reform. It seems to me that the Charter of Fundamental
Rights held much promise as a vehicle of constitution making. But it may well be that
the 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 2008

Final Revision Accepted: November 2008

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European Law Journal, Vol. 15, No. 3, May 2009, pp. 277–308.

The European Democratic Challenge:

II The Foundations of the Democratic Legitimacy of the EU

A Why the Legitimacy of the EU has to be Assessed against Normative

278 © 2009 Blackwell Publishing Ltd

a) No Relevance of Democratic Legitimacy for the EU

© 2009 Blackwell Publishing Ltd 279

processes (‘governance’).7 Or what is the same, governance mechanisms should become

280 © 2009 Blackwell Publishing Ltd

European decision-making processes (something which can be plausibly affirmed to

b) Playing Down the Relevance of the Democratic Legitimacy of the EU

© 2009 Blackwell Publishing Ltd 281

282 © 2009 Blackwell Publishing Ltd

B The Operationalisation of Democratic Legitimacy in the EU: The Complex

a) The Composite Character of European Democratic Legitimacy

© 2009 Blackwell Publishing Ltd 283

legitimacy). The paradigmatic institutionalisation of substantive legitimacy is the affir-

b) The Three-Fold Distinction within the Principle of Democratic

284 © 2009 Blackwell Publishing Ltd

© 2009 Blackwell Publishing Ltd 285

c) Representative and Deliberative Democratic Theories

III The Democratic Surpluses of the EU

286 © 2009 Blackwell Publishing Ltd

A The Constitutional Mandate to Integrate, or Why European Law is a

© 2009 Blackwell Publishing Ltd 287

288 © 2009 Blackwell Publishing Ltd

B The Common Constitutional Traditions

© 2009 Blackwell Publishing Ltd 289

National constitutional norms do neither disappear, nor are transformed in their

C Ordinary Law Making

290 © 2009 Blackwell Publishing Ltd

© 2009 Blackwell Publishing Ltd 291

D The Specific Means of Implementing Laws in Union Law: Comitology as a

292 © 2009 Blackwell Publishing Ltd

E Legitimacy through Substance: Economic Freedoms, Fundamental Rights

© 2009 Blackwell Publishing Ltd 293

294 © 2009 Blackwell Publishing Ltd

expanded the breadth and depth of the canon of constitutionality (essentially, by

F Legitimacy through Procedural Rights

© 2009 Blackwell Publishing Ltd 295

IV The Democratic Shortcomings of the EU

296 © 2009 Blackwell Publishing Ltd

autonomous from the principle of non-discrimination; (4) the undemocratic implica-

A The Shrinking Democratic Legitimacy of European Constitutional Law

© 2009 Blackwell Publishing Ltd 297

normative conflicts. Second, it is necessary to solve the eventual inconsistencies of

298 © 2009 Blackwell Publishing Ltd

B The Democratic Shortcomings of European Law Making

© 2009 Blackwell Publishing Ltd 299

a) The Insufficient Europeanisation of National Publics

300 © 2009 Blackwell Publishing Ltd

b) The Structural Substantive Bias of Community Law

© 2009 Blackwell Publishing Ltd 301

Community method and co-decision, the scope of democratic decision making is

c) Missing Links in the Chain of Democratic Legitimation

302 © 2009 Blackwell Publishing Ltd

© 2009 Blackwell Publishing Ltd 303

d) Supremacy Amplifies the Democratic Shortcomings of European Law

C Legitimacy through Substance: The Perils of the Widening of Economic

304 © 2009 Blackwell Publishing Ltd

© 2009 Blackwell Publishing Ltd 305

D Procedural Rights as Look-alikes of Structural Constitutional Principles