Critical Reflections on Constitutional Democracy in the European Union (Modern Studies in European Law)

This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners with legal and political perspectives to focus on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the array of existing scholarship and debate by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal. Volume 94 in the Series Modern Studies in European Law Foreword by Allan Rosas 6 Table of Contents 8 Notes on Contributors 12 1. Critical Reflections on Constitutional Democracy in the European Union and its Member States 14 Constitutionalism and Democracy 14 Constitutional Democracy and the European Union 18 The Future of Constitutional Democracy in the EU: Proposals for Reform 30 Conclusion 34 PART I: CRITICAL REFLECTIONS ON THE CURRENT STATE OF CONSTITUTIONAL DEMOCRACY IN THE EU AND BEYOND 36 Section 1: Autocracy, Populism and Brexit 38 2. The Rise of Populism and the Malaise of Democracy 40 On the Terms 'Populism' and 'Constitutional Democracy' 40 Establishment and Consolidation of Constitutional Democracies in Continental Europe 42 How the Crisis of Political Representation is Leading to the Question of Why We should be Represented 44 The Ambivalent Role of National Governments in the EU Institutional System 45 The Referendum in a Constitutional Democracy 48 Why National Referendums on EU Issues Concurred in Structuring the Populist Version of 'the People' 50 What Kind of 'People' are thus Created? 51 Populism as 'Democratic Illiberalism': A Critique 53 Is there a Populist Constitutional Theory? 54 Reactions to the Populist Challenge 56 In a World of Fictions? 57 3. The 'Democratic Deficits' of the US and the EU Compared 60 Introduction 60 Democracy, Democratic Deficits and Hybrid Regimes 61 Democratic Deficits at the Federal Level 64 Democratic Deficits at the State Level 69 Conclusion 74 4. Constitutional Overload in a Constitutional Democracy: The UK and the Brexit Process 76 Introduction 76 The Challenges of Brexit 78 Constitutional Overload and Constitutional Democracy 97 Conclusion 102 Section 2: Constitutionalism in the EU 104 5. EU Fundamental Rights Legislation: The Constitutional Imbroglio 106 Introduction 106 A New Mode of Fundamental Rights Law-Making at Supranational Level 109 Debating Systems of Fundamental Rights Protection within a Single Legal Order: Inter-Institutional Tensions 111 Tensions between Domestic and EU Legal Orders in the Process of Europeanisation of the Fundamental Rights Discourse 118 Epilogue 126 6. The Value of Constitutionalism in the European Union 128 Constitutionalism and Democracy in the European Union 128 Constitution and Governance in the European Union 129 Governance and Democracy at the European Level 130 Democracy and European Governance 131 European Government and Change of Power 135 Consequences 137 Section 3: Constitutional Democracy in the Eurozone 138 7. Is There a Deficit of Throughput Legitimacy in the EU? 140 Introduction 140 Conceptualising Legitimacy in Terms of Output, Input and Throughput 142 Assessing the EU's Deficits in Throughput Legitimacy 147 Challenges to EU Institutional Actors' Throughput Legitimacy in the Eurozone Crisis 157 Conclusion 160 8. Accountability Through Self-Governance in EU Economic Governance 162 Introduction 162 Problems of Accountability in Existing Economic Governance Mechanisms 164 Reconceptualising Accountability Through Self-Governance 169 The Normative Underpinning: The Argument for Self-Governance 171 Conclusion: Applying the Model to Current Mechanisms of Economic Governance 175 9. 'Where the Law Runs Out':1 The Overburdening of Law and Constitutional Adjudication by the Financial Crisis and Europe's New Modes of Economic Governance 180 Introduction 180 PART II: AN INSTITUTIONAL PERSPECTIVE ON EU CONSTITUTIONAL DEMOCRACY 192 10. The Double Legitimacy and Multiple Accountability of the European Commission: Some Reflections on its Constitutional Democratic Role 194 A Powerful Institution With Numerous Tasks of a Diverse Nature 194 Essentially an Administration at its Inception 196 Double Legitimacy Stemming from EU Citizens (Via the European Parliament) and Member States (Via the European Council and the Council) 199 Multiple Accountability Through a Series of Checks and Balances 202 Internal Checks and Balances 208 Conclusions 209 11. The Accidental Democracy: A European Model 212 A Personal Introduction to Democratic Deficit 212 The Representative and Parliamentary System: Large Majorities and Consensus 214 Legitimacy Through Knowledge and Impartiality 216 Elements of Constitutionalism 219 A Complex and Evolving Institutional Structure 220 Democratic Software: Other Governance Tools 221 The Nation State as Role Model? 222 12. Democratic Participation and Transparency of the EU Council 226 Introduction 226 Democracy, Accountability, Transparency, Participation 227 The Council of the EU: A Black Box? 229 Mounting Pressure 232 Conclusion 235 13. The Role of the Court of Justice in the Legitimation of the EU's Action: The Transparency Principle Example 238 Introduction 238 The Court's Push for Transparency before it was Cool 240 Transparency Today and the Rule of Law 244 Judicial Transparency at the EU Level 249 Conclusion 255 14. Transparency and Accountability of EU Decentralised Agencies and Agencification in Light of the Common Approach on EU Decentralised Agencies 258 Introduction 258 The Notions of Transparency and Accountability 260 Good Governance and the Rationale Pushing EU Agencification 261 Good Governance in the Common Approach on Decentralised Agencies 267 Conclusion 278 15. From Deparliamentarisation to a Parliamentary Renaissance? National Parliaments in the EU Polity 280 Introduction 280 De-Parliamentarisation within the EU 282 National Parliaments, Legitimacy and the Democratic Deficit 289 De-Parliamentarisation Reborn? National Parliaments and Budgetary and Economic Coordination 294 Supranational Trade Policy and Parliamentary Legitimacy 300 Concluding Remarks 305 16. Disruptive Democracy: Keeping EU Citizens in a Box 308 What Place for Citizens in the EU Constitutional Democracy? 308 The CJEU's New Constitutional Doctrine on Democracy as Openness 310 European Citizens' Initiative 321 EU Machinery Versus Citizen Involvement 328 PART III: EU CONSTITUTIONAL DEMOCRACY:PISTES DE REFLECTION FOR THE FUTU 330 17. Beyond Rhetoric: Education for Democratic Citizenship in the European Union 332 Introduction 332 Normative Instruments Concerning Citizenship Education 333 Beyond Rhetoric: Critical Reflections 338 Conclusion and Suggestions 355 18. Strengthening Democracy in Europe and its Resilience Against Autocracy: Daring More Democracy and a European Democracy Charter 358 Introduction: The Crisis of Representative Democracy 358 Time to Refocus on Democracy in Europe 361 Evolution of Democracy in the EU 363 Current Challenges to Democracy in Europe 371 Sources of Inspiration and Possible Content of a European Democracy Charter 386 Conclusions and Outlook: Daring More Democracy in Europe and an EU Democracy Charter 394 19. The Principle of Legality and the EU's Legitimacy as a Constitutional Democracy: A Research Agenda 398 Introduction: The Principle of Legality in Constitutional Democracy 398 The Principle of Legality Operationalised 401 The Principle of Legality in the EU 405 Concluding Reflections 428 Index 432 "This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners, legal and political perspectives, focusing on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the rich array of existing scholarship and debate, by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal"-- Sommario fornito dall'editore "This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners, legal and political perspectives, focusing on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the rich array of existing scholarship and debate, by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal"-- Provided by publisher