On Demoicratic Mutual Recognition and the Rule of EU Law
P3-03
Presented by: Benjamin Swift
Through its development of the Doctrines of Direct Effect and Supremacy (Craig and Búrca 2008), the Court of Justice of the European Union (CJEU) has instituted an EU rule of law by empowering national courts to review and challenge national legislation based on conformity with EU law (Alter 2009, 2001). This paper evaluates the legitimacy of the resulting legal system using demoicratic theory.
According to demoicratic theory, the EU is a voluntary association of peoples governing together but not as one (Bellamy 2019, Cheneval et al 2015, Nicolaïdis 2013). Demoicracies are typified by a normative commitment to mutual recognition amongst democratic peoples with which a legitimate European rule of law must be consistent.
Initially, it is shown that the EU’s existing rule of law enjoys only minimal legitimacy given its establishment through judicial activism and the limitations of its post-facto authorisation by member states. This generates incompatibilities between the resulting transnational rule of law and the demands of demoicratic mutual recognition. Specifically, the national enforcement of EU law cannot be justified through appropriate authorisation but must rely on their functional contribution to the process of European integration (Scharpf 2010).
Thereafter, potential solutions are evaluated using the demoicratic paradigm, including: intergovernmental deliberation of fundamental doctrines for the EU legal system through an Ordinary Revision Procedure and, the transition from a strong to a weak judicial review procedure in which courts no longer have the authority to refuse to apply national law but only to issue declarations of incompatibility (Waldron 2006).
According to demoicratic theory, the EU is a voluntary association of peoples governing together but not as one (Bellamy 2019, Cheneval et al 2015, Nicolaïdis 2013). Demoicracies are typified by a normative commitment to mutual recognition amongst democratic peoples with which a legitimate European rule of law must be consistent.
Initially, it is shown that the EU’s existing rule of law enjoys only minimal legitimacy given its establishment through judicial activism and the limitations of its post-facto authorisation by member states. This generates incompatibilities between the resulting transnational rule of law and the demands of demoicratic mutual recognition. Specifically, the national enforcement of EU law cannot be justified through appropriate authorisation but must rely on their functional contribution to the process of European integration (Scharpf 2010).
Thereafter, potential solutions are evaluated using the demoicratic paradigm, including: intergovernmental deliberation of fundamental doctrines for the EU legal system through an Ordinary Revision Procedure and, the transition from a strong to a weak judicial review procedure in which courts no longer have the authority to refuse to apply national law but only to issue declarations of incompatibility (Waldron 2006).