Tut 1 DEMOS:
Q: Does the absence of a European Demos mean the EU is never capable of becoming adequately
democratic?
INTRO:
what Is ‘demos’ & classical EU critique
main argument: even though lack of demos contributes to lack of democracy, other
contributing factors do too. Even if have demos, democratic deficit remains.
Roadmap: 1)what is a demos; 2)German federal constitutional court – a shifting approach,
3)necessity of a demos; 4) other ways to derive legitimacy; 5) other democratic issues;
6)solutions
P1 – What is ‘Demos’?
Demos = group of ppl who identify w/ each other bc of ethnos, language, history etc
o “we feeling”
Weiler: classical EU critique. 5 reasons for democratic deficit, demos is one of them -> see
P6. Democracy requires demos to exercise popular sovereignty
Habermas: democratic institutions create demos/we feeling, do not pre-require one;
Anderson – EU identity can be constructed like national identities are
o CA: creating democratic institution/identity generally needs ppl to come together
and agree to set one up – arguably motivated by ‘we feeling’
o Counter: EU post-war to prevent atrocities not bc of ‘we feeling’ but is part of it.
Nicholaïdis – EU mission “community of project” (avoid war + econ integration) holds it
together, not shared identity
EU engaged in identity/demos building – flag/citizenship
o Demos could be created via Anderson’s idea
o Counter: diversity amongst MS (language, history, culture, policy, constitutional
interests) existence of shared identity/demos looks weak at best
So w/out common identity in Europe, not fully democratic at EU level and so need limits of
integration – GFCC view
P2 – GFCC a shifting approach?
Progressive steps back overtime, no demos critique losing importance – raises question if
demos is really needed for adequate democracy
Solange I: argued bc EU lack demos, fails/cant protect national constitutions and rights
considered fundamental at home. If national/EU law conflict, EU law takes precedence so
long as conflicts solved via treaty mechanisms
Solange II: a step back. Diminish role of no demos critique. EU capable of protecting
fundamental rights so long as safeguard essential content of rights substantially similar to
national constitution
Honeywell: another step back/dimmish no demos critique. V high threshold for ultra vires
review (EU act beyond its competence) attitude of cooperation & EU friendliness. Primacy of
EU law for EU to function effectively. Conflicting national laws can apply to areas outside
cope of EU law.
EU itself recognises importance of preserving integrity of democracy/fundamental values
e.g. Kadi refuse to simply accept higher level (UN decisions) if protection of right to trial is
deemed too low according to EU standards. So should be open to MS wanting the same from
it.
P3 – Is Demos Necessary?
Single demos not needed for EU to function
, Nicholaïdis – ‘demoi-cracy’ ppl of EU rule side by side not as one to achieve ‘community of
project’. Best approach given EU set up. MS masters of treaty allocate competences to
institutions. Collaboration > homogenisation. Aligns with reality
Sternberg; Nicholaïdis – ^ point backed up by mutual recognition. Each MS trust and
recognise the other as valid and reliable for leg systems. Doesn’t rely on 1 identity but
willingness to collab/trust to derive legitimacy.
Moravscik: EU institutions tightly constrained by elaborate checks and balances system. EU
policy making restricted to 10-20% MS decisions - retain competency in sensitive areas.
P4: Other ways to derive legitimacy – from MS collaboration, not single demos
Moravscik: output legitimacy not input.
o E.g. increased political accountability and responsiveness of institutions
o EU can solve common problems even where MS interests diverge
o EP elected nationally – Most power vested in elected national reps - EU policy
reflects sum of national interests = collaborating MS not undemocratic as critics
claim
o More transparency in EU making than MS stringent checks/oversight.
o Critics say institutions as not accountable but technocratic ECB need independence
to function effectively
Scharpf: output legitimacy problem -> EU interests increasingly diverging and demand more
EU level solutions
o Solution – not single demos but EU of ‘enhanced cooperation’ and ‘constructive
abstention’ – MS compromise to increase EU political action backed by MS
democratic legitimacy
o Main source of EU democratic legitimacy
o MS collab efforts legitimatise EU acts not idea of single ppl
o CA: MS collab as source for legitimacy is plausible for now but in future increasingly
vulnerable -> increase in far right, EU illiberalism, nationalism = = compromise less
likely. US trade wars even worse situation. But only prediction.
P5: Other democratic issues
Weiler: 5 critiques, demos only 1. Even if had demos, deficit remains
1- Exec-leg imbalance: caused by integration, more EU exec power. MS transfer exec power,
less national parliament control/MS democratic legitimacy
2- Weak EU leg: emphasised by limited role, doesn’t elect the exec
3- Lack of EU elections: EP and national elections not rlly about Europe but home, low voter
turnout no EU wide public debate space
4- Policy drift – EU adopts policy not supported by majority and integration led to shifting
policy away from voters.
P6: Solutions
Nicholaïdis: MS collab way to go
Bolsters EU and EP: strong checks and balances in EU institutions = federal approach
facilitate MS collab
Strengthen EP by ending Commission monopoly on agenda setting
o EP request Council of Ministers to submit certain leg proposals Art 225 TFEU
o EP in agenda setting = MS collab forum – constrained by checks and balances =
balance between exec and leg = enhance democratic legitimacy
CONC: EU not reliant on demos for democratic legitimacy, other factors contribute tot problem and
EU could be adequately democratic w/out demos via output legit/MS collab. MS main source of
legitimacy, best to increase collab to strengthen that legitimacy
, Tut 2 - DIR, DE, IDE, GPs, SL:
Q: Why do directives not have HDE and critically analyse the CJEU’s alternative strategies IDE, SL,
GPs.
INTRO:
Q concerns general rule that directive has no HDE as set out in Marshall but the CJEU’s
reasoning has drawn criticism
court developed alternative strategies – IDE, SL and reliance on GPs to address limits of
Marshall
Main argument: while these tools imperfect, they are a pragmatic compromise that respect
MS sov while preserving integrity of EU law.
roadmap: Reasons for no HDE and why they are unconvincing; whether IDE, SL and GPs are
effective substitutes for no HDE of dir.
P1 – Dir generally have no HDE
Art 288 TFEU: dir goal/objective binding, MS discretion on form, flexibility respect MS sov
dir not meant to change legal position immediately but reg do
implementation crucial to achieve EU policy
need some DE for practical effectiveness
Van Dyun – VDE of dir
Ratti - after implementation period expired, prevent free rider (MS benefit from own failure
to implement + protect MS sov in sensitive areas)
Marshall – no HDE
o only addressed to MS
o otherwise MS could invoke on individual and benefit from own failure to implement
Craig de Burca: criticized – Marshall unconvincing reasoning
o Art 288 TFEU doesn’t explicitly exclude HDE. dir binds MS mentioned. reg bind all
MS. didn’t address whether private individuals are bound if dir mention specific MS
o conflict w/ Van Gend en Loos – provisions expressly addressed to MS had HDE
o Defrenne – Art 157 had addressing MS had HDE
o BUT bc due to its mandatory nature
o beyond EU competence, dir immediately changing individual rights – only regs can
Sheer number of exceptions (CIA/Unilever) make Marshall have uncertain strength
o CIA security; Unilever Italia: incidental effect, conflicting national law conflicting
disapplied bc national law rendered inapplicable but not substituted/creates new
law
o explained by AGs, not CJEU who rejected it in Pfeiffer
BUT CJEU maintain formal distinction, Craig and de Burca - wont change rule bc that would
admit decades of mistakes + solidified in Faccini Dori – individuals not responsible for non-
implementation so DE shouldn’t expand to them
uncertainty mean judges more wiling to allow exceptions
correctly highlights uncertainty of CJEU exceptions strategy but that is a way of accepting
limits of Marshall + incremental development of the law to cover new situations, and
changing from HDE risks attacking MS sov who may resist decisions
NO HDE = less effectiveness of EU law so have various solutions
P2 – IDE pros and cons
Von Colson national court interpret national law in light of incoming EU law/dir objective bc
MS bound by it
o Art 4 TEU – MS general duty to take all steps capable to advance EU objectives
Q: Does the absence of a European Demos mean the EU is never capable of becoming adequately
democratic?
INTRO:
what Is ‘demos’ & classical EU critique
main argument: even though lack of demos contributes to lack of democracy, other
contributing factors do too. Even if have demos, democratic deficit remains.
Roadmap: 1)what is a demos; 2)German federal constitutional court – a shifting approach,
3)necessity of a demos; 4) other ways to derive legitimacy; 5) other democratic issues;
6)solutions
P1 – What is ‘Demos’?
Demos = group of ppl who identify w/ each other bc of ethnos, language, history etc
o “we feeling”
Weiler: classical EU critique. 5 reasons for democratic deficit, demos is one of them -> see
P6. Democracy requires demos to exercise popular sovereignty
Habermas: democratic institutions create demos/we feeling, do not pre-require one;
Anderson – EU identity can be constructed like national identities are
o CA: creating democratic institution/identity generally needs ppl to come together
and agree to set one up – arguably motivated by ‘we feeling’
o Counter: EU post-war to prevent atrocities not bc of ‘we feeling’ but is part of it.
Nicholaïdis – EU mission “community of project” (avoid war + econ integration) holds it
together, not shared identity
EU engaged in identity/demos building – flag/citizenship
o Demos could be created via Anderson’s idea
o Counter: diversity amongst MS (language, history, culture, policy, constitutional
interests) existence of shared identity/demos looks weak at best
So w/out common identity in Europe, not fully democratic at EU level and so need limits of
integration – GFCC view
P2 – GFCC a shifting approach?
Progressive steps back overtime, no demos critique losing importance – raises question if
demos is really needed for adequate democracy
Solange I: argued bc EU lack demos, fails/cant protect national constitutions and rights
considered fundamental at home. If national/EU law conflict, EU law takes precedence so
long as conflicts solved via treaty mechanisms
Solange II: a step back. Diminish role of no demos critique. EU capable of protecting
fundamental rights so long as safeguard essential content of rights substantially similar to
national constitution
Honeywell: another step back/dimmish no demos critique. V high threshold for ultra vires
review (EU act beyond its competence) attitude of cooperation & EU friendliness. Primacy of
EU law for EU to function effectively. Conflicting national laws can apply to areas outside
cope of EU law.
EU itself recognises importance of preserving integrity of democracy/fundamental values
e.g. Kadi refuse to simply accept higher level (UN decisions) if protection of right to trial is
deemed too low according to EU standards. So should be open to MS wanting the same from
it.
P3 – Is Demos Necessary?
Single demos not needed for EU to function
, Nicholaïdis – ‘demoi-cracy’ ppl of EU rule side by side not as one to achieve ‘community of
project’. Best approach given EU set up. MS masters of treaty allocate competences to
institutions. Collaboration > homogenisation. Aligns with reality
Sternberg; Nicholaïdis – ^ point backed up by mutual recognition. Each MS trust and
recognise the other as valid and reliable for leg systems. Doesn’t rely on 1 identity but
willingness to collab/trust to derive legitimacy.
Moravscik: EU institutions tightly constrained by elaborate checks and balances system. EU
policy making restricted to 10-20% MS decisions - retain competency in sensitive areas.
P4: Other ways to derive legitimacy – from MS collaboration, not single demos
Moravscik: output legitimacy not input.
o E.g. increased political accountability and responsiveness of institutions
o EU can solve common problems even where MS interests diverge
o EP elected nationally – Most power vested in elected national reps - EU policy
reflects sum of national interests = collaborating MS not undemocratic as critics
claim
o More transparency in EU making than MS stringent checks/oversight.
o Critics say institutions as not accountable but technocratic ECB need independence
to function effectively
Scharpf: output legitimacy problem -> EU interests increasingly diverging and demand more
EU level solutions
o Solution – not single demos but EU of ‘enhanced cooperation’ and ‘constructive
abstention’ – MS compromise to increase EU political action backed by MS
democratic legitimacy
o Main source of EU democratic legitimacy
o MS collab efforts legitimatise EU acts not idea of single ppl
o CA: MS collab as source for legitimacy is plausible for now but in future increasingly
vulnerable -> increase in far right, EU illiberalism, nationalism = = compromise less
likely. US trade wars even worse situation. But only prediction.
P5: Other democratic issues
Weiler: 5 critiques, demos only 1. Even if had demos, deficit remains
1- Exec-leg imbalance: caused by integration, more EU exec power. MS transfer exec power,
less national parliament control/MS democratic legitimacy
2- Weak EU leg: emphasised by limited role, doesn’t elect the exec
3- Lack of EU elections: EP and national elections not rlly about Europe but home, low voter
turnout no EU wide public debate space
4- Policy drift – EU adopts policy not supported by majority and integration led to shifting
policy away from voters.
P6: Solutions
Nicholaïdis: MS collab way to go
Bolsters EU and EP: strong checks and balances in EU institutions = federal approach
facilitate MS collab
Strengthen EP by ending Commission monopoly on agenda setting
o EP request Council of Ministers to submit certain leg proposals Art 225 TFEU
o EP in agenda setting = MS collab forum – constrained by checks and balances =
balance between exec and leg = enhance democratic legitimacy
CONC: EU not reliant on demos for democratic legitimacy, other factors contribute tot problem and
EU could be adequately democratic w/out demos via output legit/MS collab. MS main source of
legitimacy, best to increase collab to strengthen that legitimacy
, Tut 2 - DIR, DE, IDE, GPs, SL:
Q: Why do directives not have HDE and critically analyse the CJEU’s alternative strategies IDE, SL,
GPs.
INTRO:
Q concerns general rule that directive has no HDE as set out in Marshall but the CJEU’s
reasoning has drawn criticism
court developed alternative strategies – IDE, SL and reliance on GPs to address limits of
Marshall
Main argument: while these tools imperfect, they are a pragmatic compromise that respect
MS sov while preserving integrity of EU law.
roadmap: Reasons for no HDE and why they are unconvincing; whether IDE, SL and GPs are
effective substitutes for no HDE of dir.
P1 – Dir generally have no HDE
Art 288 TFEU: dir goal/objective binding, MS discretion on form, flexibility respect MS sov
dir not meant to change legal position immediately but reg do
implementation crucial to achieve EU policy
need some DE for practical effectiveness
Van Dyun – VDE of dir
Ratti - after implementation period expired, prevent free rider (MS benefit from own failure
to implement + protect MS sov in sensitive areas)
Marshall – no HDE
o only addressed to MS
o otherwise MS could invoke on individual and benefit from own failure to implement
Craig de Burca: criticized – Marshall unconvincing reasoning
o Art 288 TFEU doesn’t explicitly exclude HDE. dir binds MS mentioned. reg bind all
MS. didn’t address whether private individuals are bound if dir mention specific MS
o conflict w/ Van Gend en Loos – provisions expressly addressed to MS had HDE
o Defrenne – Art 157 had addressing MS had HDE
o BUT bc due to its mandatory nature
o beyond EU competence, dir immediately changing individual rights – only regs can
Sheer number of exceptions (CIA/Unilever) make Marshall have uncertain strength
o CIA security; Unilever Italia: incidental effect, conflicting national law conflicting
disapplied bc national law rendered inapplicable but not substituted/creates new
law
o explained by AGs, not CJEU who rejected it in Pfeiffer
BUT CJEU maintain formal distinction, Craig and de Burca - wont change rule bc that would
admit decades of mistakes + solidified in Faccini Dori – individuals not responsible for non-
implementation so DE shouldn’t expand to them
uncertainty mean judges more wiling to allow exceptions
correctly highlights uncertainty of CJEU exceptions strategy but that is a way of accepting
limits of Marshall + incremental development of the law to cover new situations, and
changing from HDE risks attacking MS sov who may resist decisions
NO HDE = less effectiveness of EU law so have various solutions
P2 – IDE pros and cons
Von Colson national court interpret national law in light of incoming EU law/dir objective bc
MS bound by it
o Art 4 TEU – MS general duty to take all steps capable to advance EU objectives
