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2012 | 32 | 9-44

Article title

Democratic Legitimacy of the European Union: A Diagnosis and Some Modest Proposals


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Debates and controversies about the democratic legitimacy of the EU have of course accompanied the Union from the very beginning. The “democratic paradox” of the EU exists because while committing itself to promote and scrutinize democracy in its member states, in candidate states, and in third states with whom it enters into contact, it does not display equivalent democratic features in its own functioning. Some commentators tried to define the problem out of existence; by pointing out that the EU is not a state-like polity, they argued that state-specific criteria of legitimacy, such as representative, participatory or deliberative democracy, do not apply. They postulated outcome-based or, at best, public reasons based, conceptions of legitimacy as applicable to the EU, and concluded that it satisfies those standards. But this argument is based on a non sequitur: from the statement that the EU is not a state (not even a quasi-federation or federation in statu nascendi) it does not follow that it should not be judged by the standards of democratic legitimacy. The EU is a complex, untidy polity which amalgamates inter-governmental and supranational elements in its constitution, and therefore this article postulates a bifurcated approach to democratic legitimacy. In so far as the EU contains inter-governmental elements, indirect legitimacy is all that is required, i.e., democratic legitimacy of governments representing their respective states in the Council. The second face of the EU – its supranational character – calls for democratic legitimation of its institutions, in particular, in accordance with the promise contained in Art. 10 TEU, proclaiming representative democracy in the institutional setup of the EU. This requires changes to the electoral system of the EP in order to provide incentives for a more trans-European electoral process; strengthening of the supervisory role of the EP over the Commission; the strengthening of the role of the EP with regard to legislation, and endowing it with the competence of legislative initiative. Overall, the idea is for the institutional setup to resemble a canonical model of separation of powers and inter-institutional accountability, with the EP in a dominant position. Additionally, the first gesture towards direct democracy in the EU, the European Citizens’ Initiative, should be strengthened, both by upgrading the status of successful initiatives and by lowering thresholds and administrative requirements.


  • University of Sydney School of Law, New Law School Building (F10), Eastern Avenue, Camperdown Campus, NSW 2006, Australia


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