Court of Justice of the European Union as a democratic forum
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Date
03/07/2013Author
Carrick, Ross
Metadata
Abstract
The purpose of this thesis is to examine the procedural democratic legitimacy of the
Court of Justice of the European Union. The Court of Justice has been instrumental
in the construction of the European Union. Through its interpretation of the Treaty of
Rome since the 1960s, it has constituted a legal system distinctive in kind. In contrast
to orthodox instances of the political community – international organisations and
the nation-state – the EU exemplifies no general type. Its legal, constitutional,
political, economic and social infrastructures are part of a complex and pervasive
web of overlapping jurisdictions that goes some way beyond the ordinary
international organisation (by virtue of constitutional principles such as direct effect
and citizenship), but not quite as far as the nation-state (e.g. sovereignty
contestation). This being the case, its interlocutors have long since understood that
the EU is in a state of transformation – it is itself a project and a process, the end
result of which (finalité) is unknown. As such, many questions have been asked
about the legitimacy of this process; and, given the Court of Justice’s (in)famous
generative role within this process, the Court also finds itself the subject of such
scrutiny. The legitimacy of the Court of Justice has been the focus of attention from
both academics and practitioners. Most of that attention has been on the Court’s
jurisprudence and jurisdiction – scrutinising the legal reasoning of cases; or
questioning the limits of its constitutional functions according to axiomatic
conceptions of, for example, the separation of powers doctrine. By contrast, less
attention has been paid to the democratic legitimacy of the Court of Justice, and
much less in relation to the Court’s institutional design.
The subject-matter of the analysis in this thesis is the Court’s structures and
processes, such as: the composition and appointments processes for members of the
Court; the mechanisms that give access to various kinds of participants (such as
locus standi and third-party intervention); and the use of judicial chambers.
Procedural democratic legitimacy, moreover, has two dimensions: intrinsic and
instrumental. The intrinsic is a measure of the democratic credentials of the Court as
a discrete decision-making authority (such as representativeness and democratic
participation); whereas the instrumental is concerned with the ways in which the
Court contributes to the overall democratic legitimacy of the EU. In this thesis, the
structures and processes of the Court of Justice are examined in light of both of those
criteria. In contrast to prevailing approaches of constitutional theorists – who tend to
treat these criteria as functions that are quite discrete, and their performance as
mutually exclusive – an important theoretical contribution of this thesis is to develop
an analytical framework that allows for the inherent synergies and tensions that exist
between intrinsic and instrumental criteria to be factored into analyses of the
democratic legitimacy of constitutional courts.