2010 | 30 | 131-168
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Enlargement and Legitimacy of the European Union

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This article is part of a larger project on contemporary sources of legitimacy of the European Union. My prior inquiry into this subject argued that the primary legitimacy problem within the EU is not the so-called 'democratic deficit' or the EU's failure to produce certain outputs, but is instead the EU's ability to enact laws against a national government's will and dissent through Qualified-Majority Voting ('QMV') in the Council of Ministers. Based on an analysis of the EU's internal transformation through four successive treaties, that article argued that the EU can be legitimated based on two primary sources, national democracy and European citizenship, such that QMV decision-making could be justified based on promotion or protection of European citizenship, even against a national democracy's will. From this internal transformation of the EU, this article turns to the EU's external transformation through enlargement across Central and Eastern Europe. By examining the process of enlargement, the article argues that this practice also reflects the hypothesized dual legitimacy structure based on European citizenship and national democracy. In particular, the EU's primary focus during the enlargement process on the Copenhagen political criteria (rather than the economic or acquis criteria) - and in particular, ensuring the candidate countries' commitment to EU fundamental rights - was justified in light of the concurrent shift in EU decision-making from de facto unanimity to QMV. Since an EU democracy could now be outvoted in the Council and an EU decision could be taken against a nation's democratic will, the old EU Member States wanted to ensure that the new Member States would share their core political values, such that all Member States would be expected to pursue the same basic shared interests and could thus credibly claim to act on behalf of European citizens. Even as a pre-condition of accession negotiations, the EU required candidate countries to meet stringent political criteria reflecting the EU's new orientation around fundamental rights and excluded those countries that failed to do so, particularly based on human rights grounds; in contrast, it extended membership to countries even if they did not fully meet the economic or acquis criteria. In conclusion, the article proposes to formalize this consensus through a 'Strasbourg Compromise,' mirroring the Luxembourg Compromise that underpinned the European Communities, but orienting it around European citizenship rather than the national veto.
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  • B. Szewczyk, senior associate at WilmerCutlerPickeringHale&Dorr LPP, Washington D.C., USA
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