The democratic legitimacy of the European Union

As we approach the European Parliament elections, which take place from 6–9 June, Jaap Hoeksma argues that the European Union is resolving its problems of democratic legitimacy by becoming a democratic international organisation

Democratic legitimacy

In the wake of the entry into force of the Lisbon Treaty, on 1 December 2009, leading scholars like Jürgen Habermas and Kalypso Nicolaïdis raised the question of whether and how a union of democratic states can be democratically legitimate. Traditional theory holds that the concepts of democracy and international organisation are incompatible, so the answer must be negative. By functioning as a European democracy, however, the EU demonstrates in reality that it can be democratically legitimate.

Mainstream federal ideology postulates that a European state is a precondition for the functioning of a European democracy

Democratic legitimacy is the linchpin of contemporary European societies. We commonly associate it with concepts like ‘people’ and ‘state’. In the classical approach, it can be guaranteed only if a certain people has created its own state. According to this line of thought, European integration can succeed only on condition of the emergence of a European people, a continental demos. Mainstream federal ideology postulates that a European state is a precondition for the functioning of a European democracy.

The Europe of the nation-states

Firmly opposing these unificatory ideas, the intergovernmentalists cling to the political principle of state sovereignty, and insist that European cooperation should not undermine the long-established or newly gained sovereignty of the participating states. They argue that the EU does not need democratic legitimacy, because that commodity is provided by its democratic member states. Since the EU is an association of sovereign states, ‘Brussels’ should refrain from interfering in the internal affairs of its member states. Intergovernmentalists seek to abolish both the European Parliament and the EU Court of Justice.

European demoicracy

In ‘The Idea of European Demoicracy’, published in 2012, Kalypso Nicolaïdis suggested that, in order for the EU to gain democratic legitimacy of its own, the member states should ‘open up themselves to each other and should recognise mutually their respective polities and all that constitutes them: their respective pasts, their social pacts, their political systems, their cultural traditions, their democratic practices’. This would allow the EU and its member states to build a system enabling them ‘to govern together but not as one.’

Since the 1957 Treaty of Rome, member states have expressed their determination to lay the foundations for an ever-closer union among the peoples of Europe

The way in which the participating countries have opened up themselves emanates from the treaties. As from the 1957 Treaty of Rome, the member states expressed their determination to lay the foundations for an ever-closer union among the peoples of Europe. The original method they invented for reaching this goal consisted of the pooling of sovereignty. They started the experiment of sharing the exercise of sovereignty in the fields of coal and steel and the economy, and broadened it over the decades to ever wider fields, while the number of participants steadily increased. By doing so over a period of 70 years, they have established an unprecedented polity of states and citizens: a democratic international organisation.

A democratic international organisation

The distinguishing characteristics of the EU in its present form are that:

  • contrary to states and traditional international organisations, the EU comprises states and citizens (article 1 TEU)
  • the EU applies the constitutional principles of democracy and the rule of law in an international organisation (article 2 TEU)
  • the exercise of sovereignty in the EU is shared between the member states and the Union, internally and in the field of foreign affairs
  • the law of the Union may have direct effect and, in case of conflict, takes precedence over national laws and regulations.

Yet, politicians and the academic community have tended to overlook the emergence of the EU as a new kind of polity in global governance. This may be because the federalists and the intergovernmentalists (today often dubbed sovereignists) have been so entangled in their dispute that they have failed to identify the common denominator between them. Ironically, the two antagonists continue to cling to the prevailing paradigm of the modern era, known as the Westphalian system of international relations, for its principle of absolute sovereignty.

As a result of this mutually reinforcing presumption, many observers do not realise that the predecessors of the EU have deliberately broken with the old paradigm, and that each of the subsequent treaties implies a further deviation from the Westphalian system. It is time to stop studying what is a new reality using an outdated template.

The theory of democratic integration

Obviously, we should replace those paradigms that cannot explain reality. In the study of the EU, the civic perspective of human rights, democracy and the rule of law must be substituted for the Westphalian template of states and diplomats. Taking the citizens’ perspective as its Archimedean point, the theory of democratic integration suggests that, if democratic states agree to share the exercise of sovereignty in a number of fields with a view to attain common goals, their organisation should be democratic, too.

If democratic states agree to share the exercise of sovereignty in a number of fields with a view to attain common goals, their organisation should be democratic, too

The theory regards the Declaration on European Identity of December 1973, in which the member states portrayed their Community as a Union of democratic States, as the starting point of the democratisation of the emerging polity. It shows that the EU has overcome its proverbial democratic deficit by evolving from a union of democratic states to a European democracy; that is, to a democratic union of democratic states. So, while the Lisbon Treaty has not established a perfect polity, it puts beyond doubt the possibility of a union of democratic states enjoying democratic legitimacy of its own.

In view of the global challenges facing the European experiment, however, it will be crucial for the member states to improve their commitment to European democracy and for the EU to increase the involvement of its citizens in the functioning of the Union. For while the EU is perfectly capable of acquiring democratic legitimacy, it should be aware that it may forfeit it even faster.

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.


photograph of Jaap Hoeksma
Jaap Hoeksma
Independent Philosopher of Law

Jaap started his career in human rights with UNHCR, and published about refugee law.

He is based in Amsterdam.

Eurocracy: the board game

Eurocracy Board Game

At the time of the Maastricht Treaty, he published the board game Eurocracy with a view to demonstrating that the Westphalian system is not ‘the eternal foundation of international relations’.

democratisation of the european union jaap hoeksma

Jaap's book The Democratisation of the European Union (eleven, 2023) reveals that the EU has indeed replaced the Westphalian system with the European model of transnational governance.

He tweets @EUSpokesman 

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