The European Union’s Demoicratic Legislature

Forthcoming in International Journal of Constitutional Law

32 Pages Posted: 3 Jun 2020 Last revised: 22 Oct 2020

Date Written: May 1, 2020

Abstract

In important areas of EU law, the principal law-making institution is the EU Court of Justice and not the EU legislature. This article criticises the current allocation of power between both institutions and the different conceptions of political legitimacy that have been developed to justify it. The Court’s authority has been justified on the basis of output-oriented conceptions of political legitimacy that ground legitimacy in the kind of outcomes political institutions produce. This article argues that the different standards of output-legitimacy used are important but insufficient to legitimise EU institutions. Only input-oriented legitimacy can serve as a sufficiently strong form of legitimacy for the EU. More concretely, the article argues that the EU must be assessed by demoicratic standards of legitimacy. Unlike output-oriented theories of political legitimacy, which justify the transfer of authority from the EU legislature to the Court, a demoicratic conception of political legitimacy weighs in favour of legislative decision-making. This article explores whether it is possible to improve the political status of the EU legislature without Treaty amendment.

Keywords: EU legislature, EU Court of Justice, Political Legitimacy, Demoicracy

Suggested Citation

van den Brink, Martijn, The European Union’s Demoicratic Legislature (May 1, 2020). Forthcoming in International Journal of Constitutional Law , Available at SSRN: https://ssrn.com/abstract=3594066 or http://dx.doi.org/10.2139/ssrn.3594066

Martijn Van den Brink (Contact Author)

Hertie School of Governance ( email )

Friedrichstraße 180
Berlin, 10117
Germany

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