The European Democratic Challenge

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. Special attention is paid through the paper to the democratic implications of the structural features of European constitutional law for new member states. This article has later been published in European Law Journal Vol. 15, No.3, pp.277-308