(Series Information) European Papers - A Journal on Law and Integration, 2025 10(2), 489-515 | Article | (Series Information) European Papers - A Journal on Law and Integration, 2025 10(2), 489-515 | Article | (Table of Contents) 1. Introduction. – 2. The challenge of defining minimal democratic standards. – 3. Ensuring the European’s Parliament’s democratic character. – 3.1. Existing rules and jurisprudence. – 3.2. The case for reinterpretation of the Direct Suffrage Act. – 3.3. Operationalising a reinterpretation of the Direct Suffrage Act. – 4. Ensuring the Council’s democratic character. – 4.1. Existing rules and jurisprudence. – 4.2. The case for an exclusionary interpretation of Article 10 TEU. – 4.3. Operationalising an exclusionary interpretation of Article 10 TEU. – 5. Risks of action versus risks of inaction. – 6. Concluding comments. | (Abstract) There are numerous means through which EU institutions can seek to enforce the value of democracy under Article 2 TEU. However, each of these mechanisms may contain weaknesses in the face of determined national-level autocrats. The possibility that attempts to address democratic backsliding at national level may fail must be countenanced. The functioning of the EU’s representative democracy (Article 10(1) TEU) hinges on the legitimacy of its legislature (the European Parliament and the Council) as set out in Article 10(2) TEU, with EU citizens directly represented in the European Parliament and Member States being represented by their governments, ‘themselves democratically accountable either to their national parliaments, or to their citizens’. The EU’s representative democracy is therefore dependent on conditions at national level, whether in the context of European Parliament or national elections. This article examines the extent to which EU law allows the presence in the European Parliament and the Council of democratically illegitimate national-level representatives, with a particular focus on the possibility of exclusion of such representatives. After the acknowledging the problem of identifying the meaning of democracy in EU law, the article concludes that orthodox interpretations of existing primary and secondary EU rules, together with existing jurisprudence of the Court of Justice of the EU, leave the EU’s legislature open to autocratic trespass by national-level representatives. The article then suggests new interpretative approaches to EU primary and secondary law that would allow the exclusion of such institutional representatives and describes how such exclusion could be operationalised procedurally.
For over a decade the EU has experienced a rule of law crisis characterised by, inter alia, attacks on judicial independence at national level by some Member State governments. This crisis represents an existential one for the EU owing to the Union’s functioning as a multi-level, intertwined legal order being dependent on respect for the rule of law at national level. This article asks whether impeachment, as an accountability mechanism focussed on members of the European Commission (the institution tasked with ensuring compliance with the EU Treaties), could be used to assist in upholding values including the rule of law, where these have been breached at supranational level, whether by acts of commission or omission, i.e., failing to respond adequately to rule-of-law breaches at national level. After briefly describing the EU’s rule of law crisis, the article identifies gaps in EU accountability as it pertains to breaches of EU values at supranational level, whether done by acts or omissions. Thereafter, the article considers how EU impeachment is conceptualised and whether it could be operationalised against individual members of the European Commission who commit breaches of EU values. The article concludes that EU impeachment is conceptualised as a blunt single-sided sword, designed to address criminal or corrupt individual officeholder conduct rather than policy actions/inactions or other behaviours that might harm or threaten EU values.
Contrary to cartoonish portrayals of Ursula von der Leyen as a latter-day Caesar, who may be illegitimately presidentialising the Commission, the current Commission President is merely furthering a more centralised vision of the institution that is implicit in the extent of her organisational powers under Article 17(6) TEU. While there are strong legal and constitutionally moral arguments for an alternative, more plural executive understanding of the Commission, the Treaties leave room for a contest between presidentialist and pluralist visions to take place across time in the political arena. Moreover, a more presidential conception of the Commission, while it may raise some questions regarding the mode of election of the Commission President and the role of the Commission, may also possess some positives.
Article 17(6) TEU provides that a Commissioner "shall resign if the [Commission] President so requests". This terminology appears absolute and suggests that the President's power to (essentially) dismiss a Commissioner summarily is one related to confidence. This immense power appears in the Treaties alongside the Article 247 TFEU compulsory retirement procedure, through which the ECJ can remove a Commissioner for, inter alia, serious misconduct. This article analyses the President's power to - in essence - dismiss Commissioners, and seeks to establish the limits, if any, on this power. The article argues that a line between the President's Article 17(6) TEU power and the compulsory retirement procedure cannot be maintained pragmatically. The article also asserts that, save for highly exceptional circumstances, the President is free to compel the resignation of Commissioners.
Contrary to cartoonish portrayals of Ursula von der Leyen as a latter-day Caesar, who may be illegitimately presidentialising the Commission, the current Commission President is merely furthering a more centralised vision of the institution that is implicit in the extent of her organisational powers under Article 17(6) TEU. While there are strong legal and constitutionally moral arguments for an alternative, more plural executive understanding of the Commission, the Treaties leave room for a contest between presidentialist and pluralist visions to take place across time in the political arena. Moreover, a more presidential conception of the Commission, while it may raise some questions regarding the mode of election of the Commission President and the role of the Commission, may also possess some positives.
This article is the first panoramic survey of the various, idiosyncratic procedures relating to the removal for cause of EU institutional officeholders scattered throughout the Union’s primary and secondary law. After describing these provisions, the article argues that these procedures may be considered as impeachment. The article then examines the character of EU impeachment, concluding that it is conceptualised narrowly as addressing individual misbehaving officers, rather than as a means to address wider, systemic, policy-based threats to the EU and its values. The article also offers some observations regarding defects in the EU’s current impeachment provisions and suggests possible reforms.
This chapter, the final chapter in Part II, to test the hypothesis established in Chapter 6, analyses the extent to which the Court of Justice will become vulnerable to countervailing power countermeasures in circumstances where it ceases to act judicially or in adherence with legal doctrine and accepted techniques. Two further ruling scenarios are analysed: 'scenario 3' rulings (rulings which lack adherence to legal doctrine and accepted techniques), but are substantively acceptable to all the Court's countervailing powers) and 'scenario 4' rulings (rulings that do not adhere to legal doctrine and accepted techniques and are not substantively acceptable to all the Court's countervailing powers).
This chapter establishes the meaning of the concept of legal certainty and its constituent value, predictability, in the EU legal system, before identifying obstacles to legal certainty in the general sense and in the specific case of EU legal system. These obstacles are categorised as legal obstacles (the uncertainties arising from the inherent ambiguities in laws) and extra-legal obstacles (the uncertainties arising from human engagement with laws).
This forward-thinking book examines numerous features in the European Union (EU) legal system that serve to reduce legal uncertainty in the preliminary reference procedure and the rulings of the Court of Justice. Drawing on theories from legal realist Karl Llewellyn, legal steadying factors such as legal doctrine and interpretative techniques are reviewed alongside the primary focus of this book, extra-legal steadying factors.
This chapter, the final chapter in Part I, considers the education, training, and professional backgrounds of all former and present Judges of the Court of Justice and its predecessor to assess the extent to which those Judges may be described as law conditioned. After consulting biographical information about all 111 Judges, its is concluded at all but two Judges were law-conditioned officials, a factor which is assumed to contribute to steadiness in the rulings of the Court.
This chapter, the first in Part I, discusses the role of judges' legal educational and professional backgrounds in steadying their judicial decisions. The chapter commences by acknowledging a significant obstacle to legal certainty: that the pressure exerted on judges by legal doctrine and known doctrinal techniques depends ultimately on the judge's perceptions of those factors as possessing normative character. The chapter then introduces Llewellyn's answer to this problem in the context of the American appellate courts: that judges are law-conditioned officials who have an internalised acceptance of the limiting effect of the legal rules and interpretive techniques and who, due to commonalities in their backgrounds and outlook, apply more uniform solutions to substantive legal interpretative problems. This chapter then examines what Llewellyn meant by law-conditioned official and describes his views on how law conditioning promotes steadier outcomes.
This forward-thinking book examines numerous features in the European Union (EU) legal system that serve to reduce legal uncertainty in the preliminary reference procedure and the rulings of the Court of Justice. Drawing on theories from legal realist Karl Llewellyn, legal steadying factors such as legal doctrine and interpretative techniques are reviewed alongside the primary focus of this book, extra-legal steadying factors.
This article presents the argument that art.10 TEU could be utilised to confront the problem of undemocratic Member State representatives in the European Council and the Council. First, it is contended that art. 10(2) TEU, read with the principle of representative democracy in art. 10(1) TEU, should be interpreted operatively to mean that a Member State is not entitled to representation in the European Council or the Council where its Head of State/Government or its government are not "democratically accountable either to their national Parliaments, or their citizens". Secondly, it is argued that art.10 TEU can be instrumentalised using several procedural mechanisms, some of which could be engaged by way of citizen action, thereby bypassing the decisional traps and lack of political will that afflict art.7 TEU, to contribute to the defence of the principle of representative democracy.
This chapter seeks to identify steadying factors, a concept borrowed from the American legal realist Karl Llewellyn, that contribute to reducing the impact of obstacles to legal certainty. This chapter describes Llewellyn's 'descriptive thesis' in his book The Common Law Tradition, together with key concepts central to an understanding of these theories. Thereafter, criticisms of Llewellyn's thesis are considered, followed by an attempt to re-model his thesis in light of those criticisms. The problems with the application of this re-modelled thesis to the Court of Justice are then considered.
This forward-thinking book examines numerous features in the European Union (EU) legal system that serve to reduce legal uncertainty in the preliminary reference procedure and the rulings of the Court of Justice. Drawing on theories from legal realist Karl Llewellyn, legal steadying factors such as legal doctrine and interpretative techniques are reviewed alongside the primary focus of this book, extra-legal steadying factors.
