81 Pages Posted: 8 Jul 2011 Last revised: 12 Dec 2013
Date Written: 2011
The EU’s primary problem of legitimacy arises not from its democratic deficit or failure to deliver certain outputs, as held by conventional wisdom, but rather from its power to enact laws through Qualified Majority Voting against a Member State’s will and self-perceived national interest. With the waning into desuetude of the Luxembourg Compromise, under which states in the European Communities maintained a de facto veto in cases of vital national interests, QMV has thus given the EU an autonomous source of power by eliminating continual national control over EU decision-making. Just as constitutional courts need to reconcile countermajoritarian judicial review with democratic principles, the EU demands a new form of justification to reconcile national democratic principles with supranational QMV decision-making. Since empirical legitimacy is based on serving common interests of effective actors, the EU can legitimate QMV through the protection of fundamental rights of European citizens across its Member States, even against national democratic will. Thus, contemporary sources of EU legitimacy are based on European citizenship and national democracy. These principles are embedded in the EU’s primary constitutive process of establishment through treaties, from the Treaty of Maastricht in 1993 to the Treaty of Lisbon in 2009.
In his last speech before leaving the US Supreme Court, Justice David Souter emphasized the importance of courts in liberal democracies: “There has to be a safe place, and we have to be it.” Similarly, as a model of liberal international democracy - an order wherein primary political decision-makers are elected by the people they govern (democratic element) and human rights (liberal element) are, as a last resort, protected by international institutions (international element) - the EU can, and should, be that safe place across its Member States by protecting the fundamental rights of all European citizens, even against national democratic will, and maximizing values of human dignity.
Suggested Citation: Suggested Citation
Szewczyk, Bart M.J., European Citizenship and National Democracy: Contemporary Sources of Legitimacy of the European Union (2011). Columbia Journal of European Law, Vol. 17, No. 2, pp. 151-230, 2011. Available at SSRN: https://ssrn.com/abstract=1881710