When negotiating EU draft legislation within the EU Council of Ministers, Member States are represented by the members of the national executives. In some cases, Parliaments vent opinions on EU draft legislation and, in some cases, these opinions bind the government during the negotiations. These different positions can be situated in a spectrum ranging from “efficiency” to “legitimacy”, referring by contrast to those systems that are more concerned with providing the supranational legal order with a strengthened democratic legitimacy. However, both legal and political science literature actually suggest that the difference between theory and practice can be important, with Parliaments with theoretically weak oversight powers “de facto” playing a strong role in EU affairs. The proposed paper intends to provide an overview of the solutions adopted and to interpret them in the light of the above-mentioned theoretical framework
The governance of the European Union (EU) has been significantly changed by the multiple crises that it has endured over the last decade. This has often led to increased differentiation. However, at least in the economic and monetary union, differentiated governance has been reduced in recent times, thanks to the adoption of positive intervention programmes such as the Next Generation EU and SURE which apply to all the MS. We analyse the three phases in which different types of governance were legally established as a reaction to the crises that occurred over time, highlighting the various legal solutions and the consequences for the institutional fragmentation among the MS and the democracy of the EU. Furthermore, we illustrate the pros and cons of some institutional solutions bearing in mind both the need for a more efficient and reactive union in the face of difficulties and a clearer allocation of responsibilities while ensuring greater legitimacy.
The ‘pure constitutionalism’ of EU Common Foreign and Security Policy lies in the rule that decisions are taken by unanimity (as if they were constitutional amendments). This constitutional logic removes the policy from the field of majoritarian politics (that is, from ordinary legislation) elevating it, almost integrally, to constitutional legislation. Pure constitutionalism differs from, for example, liberal democratic constitutionalism: typically, liberal democratic states are based on majority rule (subject to constrains). As other authors have maintained, there is too much constitutional law.
While the distinctiveness is object of a great deal of legal scholarship, this contribution seeks to discuss it with reference to political theory and constitutionalism. The fundamental question it seeks to address is this: is pure constitutionalism contrary to the political flourishing of the EU foreign policy – in so far as it subtracts value pluralism and indeed choice to the polity?
The values that define the very identity of the EU as a unique legal order of public law have gained a new tool for their protection, the conditionality mechanism of the Union budget, after the CJEU dismissed the legal challenges brought against it by Poland and Hungary in cases C-156/21 and C-157/21. As these Members are the biggest net recipients of Union funds, it is hoped they will now change their illiberal path. But slashing funding could also backfire and push them towards withdrawal if being in the EU no longer provides such benefits. This paper discusses both outcomes: Will this tool prove to be pivotal in the defence of Art 2 or will it result in a withdrawal crisis? And if the latter, what role for these values which the Court has now vested with a ‘legally-binding’ status to be upheld ‘at all times’? Can the EU simply accept the exit of a state failing democratic and rule of law standards despite such an act legitimising illiberalism and arguably betraying its citizens?