3 - Democracy In EU Law (Between Ideals and Practices)

Question 1

Outline of lecture? (2)

Answer 1

1/ EU legal-constitutional concept of supranational/multi-level democracy

2/ main challenges of EU democracy?

Question 2

What is an argument in support of the EU being democratic?

Answer 2

EU democracy as a legal-constitutional reality (Art. 2, 10 TEU)

Question 3

Why can EU democracy be apprehended as a legal-constitutional reality? (3)

Answer 3

1/ Art. 2 TEU: EU values (‘democracy’, ‘rule of law’)

2/ Art. 10 TEU: representative democracy

3/ Arts. 9-12 TEU: new concept of a post-national multi-level democracy

Question 4

How to evaluate EU democracy? (4)

Answer 4

1/ democratic by what standards?

2/ depends on view of what the EU is for

3/ ‘chicken and egg’ dilemma => political community or idea of PC first?

4/ modern nation States as political communities were ‘legally constructed’ (Habermas)

Question 5

What is the legal basis for EU democratic principles?

Answer 5

Lisbon Treaty, Title II TEU (Arts. 9-12)

Question 6

Article 9 TEU and EU democracy? (2)

Answer 6

1/ ‘equal EU citizens’

2/ does not mention ‘the people’

Question 7

Arts. 1(2) and 10(1)(2) TEU & EU democracy? (3)

Answer 7

1/ principle of representative democracy

2/ co-existence with national democracy

3/ dual nature of representation

Question 8

Arts. 10(3) and 11 TEU & EU democracy?

Answer 8

Principle of participatory democracy

Question 9

Art. 12 TEU & EU democracy?

Answer 9

National parliaments also sources of EU democratic legitimacy

Question 10

Art. 50 TEU & EU democracy? (2)

Answer 10

1/ possibility to exit the EU = democratic self-determination of MS

2/ ibid for possibility to withdraw exit notification (Wightman)

Question 11

What is the presumption regarding representation within the EU? (3)

Answer 11

1/ EU legitimacy derived from 2 subjects

2/ EU citizens via EP

3/ MS via European Council and Council

Question 12

General info about EP? (4)

Answer 12

1/ direct elections since 1979

2/ functions in Art. 14 TEU (& Arts. 223-234 TFEU)

3/ extent of powers depends on legislative procedure

4/ no right to initiate legislation

Question 13

What are functions of the EP (Art. 14 TEU)? (2)

Answer 13

1/ legislative and budgetary (with Council)

2/ political control & consultation

Question 14

What elements make up for the absence of EP right to initiate legislation? (2)

Answer 14

1/ can request an EC proposal (Art. 225 TFEU)

2/ can propose amendments to legislation

Question 15

What did Von der Leyen make in July 2019? (2)

Answer 15

1/ political commitment

2/ EC will put forward legislative proposal if EU resolution passed with majority of constituent members

Question 16

What did EP do in May 2022? (2)

Answer 16

1/ triggered Art. 48 TEU

2/ proposed Treaty amendments, incl. codification of EP right of initiative

Question 17

What are criticisms addressed to the (lack of) representativeness of the EP? (6)

Answer 17

1/ no European electoral law nor European parties

2/ second order elections, focus on domestic issues

3/ no equality of votes?

4/ lower voter turn out

5/ ‘cannot throw the squandrells out’, lack of political accountability of EU ‘governing’ institutions

6/ absence of a ‘societal substructure needed for vibrant democracy’ (Grimm)

Question 18

Why the criticism that there is no European electoral law/European parties? (7)

Answer 18

1/ national election campaigns

2/ national delegates from national parties

3/ European ‘party groups’ are built in the EP

4/ hence, no transnational EU parties and delegates

5/ voting system simultaneously determined by EU and national law

6/ no agreement on uniform election procedure

7/ however, see EP proposal of May 2022 (pushing to harmonise electoral law)

Question 19

What did the EP proposal of May 2022 contain regarding the harmonisation of electoral law? (2)

Answer 19

1/ transnational voting lists

2/ formalisation of Spitzenkandidaten rule

Question 20

Why criticism of ‘second order elections’? (4)

Answer 20

1/ historically correct

2/ however, are we witnessing a gradual change?

3/ political science research on 2019 EP elections shows that it was a first-order-polity election & that there are 1st signs of transnational mobilisation & European coalition building

4/ is today characterised by a new cosmopolitan vs. nationalist political cleavage?

Question 21

Why criticism of no equality of votes? (3)

Answer 21

1/ apportionment of seats based on pcple of degressive proportionality

2/ Art. 14(2) TEU

3/ smaller MS are hence allocated more seats than would be proportional to their population

Question 22

Why criticism of lack of political accountability of EU ‘governing’ institutions? (Weiler) (2)

Answer 22

1/ no majority party dynamics

2/ lack of open and competitive battle for election EC president (Hix)

Question 23

Considerations surrounding EP elections & election of EC President? (5)

Answer 23

1/ EP elects EC President & approves EC as a whole (Art. 17(7) TEU)

2/ as such, we witness a gradual politicisation of the EC

3/ election & composition EC linked to political agenda reliant upon composition EP

4/ EP can remove EC by vote of ‘censure’, 2/3 majority (Art. 17(8) TEU)

5/ when EC resigns, EP continues

Question 24

Why criticism of absence ‘societal substructure for vibrant democracy’ (Grimm)? (4)

Answer 24

1/ no European demos

2/ no European public sphere

3/ interest groups, popular mouvements, NGOs seem weak at EU level

4/ see however Conference on the future of Europe (May 2020-May 2022)

Question 25

In which principles/initiatives is participatory democracy considered to be represented? (3)

Answer 25

1/ transparency (Arts. 10(3) & 11(2) TEU)

2/ participation (Arts. 10(3) & 11(3) TEU)

3/ European Citizens Initiative

Question 26

Considerations surrounding pcple of transparency? (3)

Answer 26

1/ access to documents (Art. 15 TFEU, Art. 42 CFR)

2/ CJEU proactive interpretation in light of democratic pcples

3/ new doctrine of legislative transparency impulsed by CJEU

Question 27

Considerations surrounding ECI? (4)

Answer 27

1/ Art. 11(4) TEU

2/ 1 million of EU citizens from at least 7 out of 28 MS

3/ aim is EC legislative proposal

4/ EC has no obligation to take action but must state reasons if decides not to do so

Question 28

Why is direct citizen participation not without challenges? (3)

Answer 28

1/ resources?

2/ selection bias?

3/ tension with efficiency/effectiveness of EU decision-making?

Question 29

Considerations surrounding Art. 12 TEU, national parliaments and EU democracy? (3)

Answer 29

1/ NPs provide input into legislative process

2/ there is an early warning mechanism (yellow card & orange card procedures in P2 on application of subsidiarity and proportionality)

3/ P2 allows for a subsidiarity check ex ante

Question 30

What documents have to be sent to national parliaments according to the Protocol on National Parliaments? (3)

Answer 30

1/ draft legislative acts

2/ annual legislative programme & other policy docs

3/ agendas & minutes of Council

Question 31

Why does CJEU make proactive use of pcple of democracy? (3)

Answer 31

1/ to strengthen prerogatives of EP

2/ to strengthen legislative transparency

3/ emphasis on democracy as EU value

Question 32

Main points of Grimm’s criticism of overconstitutionalisation of the EU? (3)

Answer 32

1/ goes back to autonomy and CJEU case law

2/ de-politicised economic integration (through negative integration)

3/ democratic costs

Question 33

Why the argument of ‘de-politicised economic integration’? (3)

Answer 33

1/ broad understanding of obstacles to free movement

2/ direct effect of EU directives

3/ broad scope of application of CFR

Question 34

Why the argument democratic costs with respect to overconstitutionalisation of EU? (4)

Answer 34

1/ treaties contain too many rules which in domestic systems are part of ordinary law

2/ constrain EU political process

3/ difficult to change by MS (cumbersome)

4/ more constitutional law means less democracy in the EU

Question 35

Main question in Wightman?

Answer 35

Can notification of withdrawal mentioned in Art. 50 TEU be revoked unilaterally by MS before the expiry of time limits laid out in that Article?

Question 36

What are the 2 objectives Art. 50 TEU pursues?

Answer 36

1/ enshrining sovereign right of MS to withdraw from EU

2/ establishing procedure to enable withdrawal in orderly fashion

Question 37

What was main reasoning of CJEU to allow unilateral revocation of withdrawal notification? (3)

Answer 37

1/ a State cannot be forced to accede to EU against its will

2/ therefore, a State also cannot be forced to withdraw from EU against its will

3/ pcple of democracy

Question 38

What is relevance of CETA ruling regarding pcple of democracy? (4)

Answer 38

1/ para 151

2/ CJEU emphasises EU legislation is adopted by EU legislature following the democratic process defined in the Treaties

3/ therefore, EU legislation is deemed to be both appropriate and necessary to achieve a legitimate objective of the EU

4/ hence, powers of CETA Tribunal and Appellate Tribunal do not extend to permitting them to call into question level of protection of public interest determined by EU following democratic process

Question 39

What does Regulation 2020/2092 provide for?

Answer 39

A general regime of conditionality for the protection of the EU budget

Question 40

Why did CJEU reject argument of infringement pcple of democracy by EC in Macro Financial Assistance case? (4)

Answer 40

1/ power of EC to withdraw a proposal is inseparable from right of initiative

2/ exercise of this power is circumscribed by Arts. 10, 17 TEU jo Arts. 289, 293 TFEU

3/ Art. 10(1)(2) TEU lays down pcple of democracy

4/ as such, there can be no question of infringement of that principle

Question 41

What are the several tools available to achieve results in the EU? (3)

Answer 41

1/ harmonisation

2/ judicial interpretation & establishment of new rules and pcples

3/ soft law governance (but questions surrounding enforcement)

Question 42

What is the characteristic of a ‘militant democracy’?

Answer 42

Democracy that defends its values and itself

Question 43

What can be seen as problematic regarding the QMV in the Council during the OLP? (3)

Answer 43

1/ NPs can no longer sanction their national gvts

2/ NPs can no longer give their national gvts a clear mandate

3/ this is so bc part of the MS can be outvoted

Question 44

What is main reason why yellow and orange card procedures appear ineffective in practice? (3)

Answer 44

1/ only focus on legislative acts

2/ EU adopts a formal conception of ‘legislative act’ (see Art. 289(3) TFEU)

3/ scope of application of Protocol 2 thus does not extend to other instruments used to develop EU regulation (e.g. soft law, method of open coordination)

Question 45

What is problematic about the pcple of democracy in EU law?

Answer 45

Its legal value is unclear

Question 46

Arguments in favor of removing restriction in Art. 51 CFR in relation to MS acts? (4)

Answer 46

1/ protection of FR would become more effective

2/ would ensure more uniformity

3/ there is already a trend of moving towards a more generalised application as scope of EU law is expanding continuously

4/ application of CFR would be counter-weight to CJEU’s expansive interpretation of economic rights

Question 47

Arguments against removing restriction in Art. 51 CFR in relation to MS acts? (3)

Answer 47

1/ FR are more diverse than one might think => don’t make it uniform

2/ there is already a HR court that verifies compliance with FR (ECtHR)

3/ this would be an incredible power-grab and would expand CJEU’s jurisdiction over all FR issues