‘All Good Things Come in Threes’: From a Double to a Triple Democratic Legitimacy of the European Union

Abstract

The European Union claims independent legal authority and thus political power. The latter, in order to be effective, needs to be legitimated. It is a common topos that legitimation need not necessarily be procedural; however, the main claim of the democratic theory is that political power does have to be ‘democratically’ legitimated. But what does ‘democratically’ mean in the ‘postnational constellation’?

This paper traces the theories that have developed concerning the democratic legitimacy of the European Union and acknowledges the progress that has been achieved with the adoption of the theory of double legitimacy, according to which the EU is not merely an international organisation, based only on the will of the ‘high contracting parties’, the Member States, but a ‘Sympolity’ (See D Tsatsos, The European Sympolity, Towards a New Democratic Discourse, Brussels: Bruylant, 2009) of states and peoples. At the same time, the study discards the arguments for assessing the legitimacy of the EU as a regulatory regime whose legitimacy should be assessed exclusively in terms of its results. It contends, however, that the theory of double democratic legitimacy is no longer sufficient for the present state of Union affairs. It also challenges the view that the only ‘pure’ type of democratic legitimacy would be that emanating from a single ‘European demos’, which would transform the Union into a state. It rather proposes that the most suitable type of ‘democratic’ legitimacy at the present historical and political conjuncture is a triple one, based on states, peoples and citizens alike.

The triple legitimacy theory aims both to describe the state-of-the-art of the Union today and also to serve as a normative yardstick for future developments: As for the former, triple legitimacy is already enshrined in some EU Treaty provisions, especially Articles 10, 11 and 12 TEU, newly inserted by the Lisbon Treaty, and the provision concerning the composition of the Convention (Art 48 par 3 TEU). These provisions have yet to be put into effect. As for the latter, further steps towards a more enhanced citizens’ approval of the Union law and politics need to be taken in accordance with the triple legitimacy theory, given a number of specific limitations: the particularity of European citizenship and sentiment of (non-) belonging, the asymmetry in the federal structure which follows from the flexibility clause, and the notion of sovereignty, which is conceptually deeply flawed and rather absent in pragmatic terms. Nevertheless, it remains popular as a discursive claim in favour of state-centrism, which preserves the particular status of states and nations.

Keywords: EU legitimacy, double legitimacy, triple legitimacy, European citizens