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

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1
Q

Outline of lecture? (2)

A

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

2/ main challenges of EU democracy?

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2
Q

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

A

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

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3
Q

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

A

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

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4
Q

How to evaluate EU democracy? (4)

A

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)

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5
Q

What is the legal basis for EU democratic principles?

A

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

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6
Q

Article 9 TEU and EU democracy? (2)

A

1/ ‘equal EU citizens’

2/ does not mention ‘the people’

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7
Q

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

A

1/ principle of representative democracy

2/ co-existence with national democracy

3/ dual nature of representation

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8
Q

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

A

Principle of participatory democracy

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9
Q

Art. 12 TEU & EU democracy?

A

National parliaments also sources of EU democratic legitimacy

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10
Q

Art. 50 TEU & EU democracy? (2)

A

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

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

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11
Q

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

A

1/ EU legitimacy derived from 2 subjects

2/ EU citizens via EP

3/ MS via European Council and Council

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12
Q

General info about EP? (4)

A

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

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13
Q

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

A

1/ legislative and budgetary (with Council)

2/ political control & consultation

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14
Q

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

A

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

2/ can propose amendments to legislation

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15
Q

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

A

1/ political commitment

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

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16
Q

What did EP do in May 2022? (2)

A

1/ triggered Art. 48 TEU

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

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17
Q

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

A

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)

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18
Q

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

A

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)

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19
Q

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

A

1/ transnational voting lists

2/ formalisation of Spitzenkandidaten rule

20
Q

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

A

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?

21
Q

Why criticism of no equality of votes? (3)

A

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

22
Q

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

A

1/ no majority party dynamics

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

23
Q

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

A

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

24
Q

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

A

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)

25
Q

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

A

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

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

3/ European Citizens Initiative

26
Q

Considerations surrounding pcple of transparency? (3)

A

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

27
Q

Considerations surrounding ECI? (4)

A

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

28
Q

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

A

1/ resources?

2/ selection bias?

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

29
Q

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

A

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

30
Q

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

A

1/ draft legislative acts

2/ annual legislative programme & other policy docs

3/ agendas & minutes of Council

31
Q

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

A

1/ to strengthen prerogatives of EP

2/ to strengthen legislative transparency

3/ emphasis on democracy as EU value

32
Q

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

A

1/ goes back to autonomy and CJEU case law

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

3/ democratic costs

33
Q

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

A

1/ broad understanding of obstacles to free movement

2/ direct effect of EU directives

3/ broad scope of application of CFR

34
Q

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

A

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

35
Q

Main question in Wightman?

A

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?

36
Q

What are the 2 objectives Art. 50 TEU pursues?

A

1/ enshrining sovereign right of MS to withdraw from EU

2/ establishing procedure to enable withdrawal in orderly fashion

37
Q

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

A

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

38
Q

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

A

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

39
Q

What does Regulation 2020/2092 provide for?

A

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

40
Q

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

A

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

41
Q

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

A

1/ harmonisation

2/ judicial interpretation & establishment of new rules and pcples

3/ soft law governance (but questions surrounding enforcement)

42
Q

What is the characteristic of a ‘militant democracy’?

A

Democracy that defends its values and itself

43
Q

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

A

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

44
Q

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

A

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)

45
Q

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

A

Its legal value is unclear

46
Q

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

A

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

47
Q

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

A

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