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Journal Article

The European Union’s demoicratic legislature (forthcoming)


van den Brink,  Martijn
Ethics, Law and Politics, MPI for the Study of Religious and Ethnic Diversity, Max Planck Society;

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van den Brink, M. (2020). The European Union’s demoicratic legislature (forthcoming). International Journal of Constitutional Law. doi:10.2139/ssrn.3594066.

Cite as: https://hdl.handle.net/21.11116/0000-0006-D3CD-5
In important areas of EU law, the principal law-making institution is the EU Court of Justice rather than the EU legislature. This article criticises the current allocation of power between both institutions and the various conceptions of political legitimacy that have been developed to justify it. Scholars have justified the Court’s authority relying on output-oriented conceptions of political legitimacy that ground legitimacy in the kind of outcomes political institutions produce. This article argues that the various articulated standards of output-legitimacy 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. By contrast to output-oriented accounts of political legitimacy, which have justified the removal of authority from the EU legislature to the Court, a demoicratic conception of political legitimacy weighs in favour of legislative decision-making. Against this conclusion, the article explores whether it is possible to improve the EU legislature’s political standing without Treaty amendment.