The European Democratic Challenge

RECON (Reconstituting European Democracy) Working Paper

42 Pages Posted: 4 Dec 2007

See all articles by Agustín José Menéndez

Agustín José Menéndez

Arena, Universitetet i Oslo; Facultad de Derecho, Universidad de Leon

Date Written: November 2007


In this paper, I explore in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, I claim that the question must be disaggregated, given that the Union has not only several democratic deficits, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation-states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the member states, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences between the Union and its member states and the plurality of law-making procedures, some of which multiply veto points at the cost of rendering decision-making rather improbable.

Keywords: Constitutional Change, Deliberative Democracy, European Law, Legal Theory

JEL Classification: K33

Suggested Citation

Menéndez, Agustín José, The European Democratic Challenge (November 2007). RECON (Reconstituting European Democracy) Working Paper, Available at SSRN: or

Agustín José Menéndez (Contact Author)

Arena, Universitetet i Oslo ( email )

PO Box 6706 St Olavs plass
Oslo, N-0317

Facultad de Derecho, Universidad de Leon ( email )

Campus de la Vegazana S/N
Leon, 24071

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