On Demoicratic Mutual Recognition and the Rule of EU Law

Through its development of the Doctrines of Direct Effect and Supremacy (Craig and Búrca 2020) the Court of Justice of the European Union (CJEU) has instituted a rule of EU law by empowering national courts to review and challenge national legislation based on conformity with EU law (Alter 2009, 2001). This paper evaluates the legitimacy of the resulting legal system using demoicratic theory. According to demoicratic theory, the EU is a voluntary association of peoples governing together but not as one (Bellamy 2019, Cheneval et al 2017, Nicolaïdis 2013). Demoicracies are typified by a normative commitment to mutual recognition amongst democratic peoples with which a legitimate European rule of law must be consistent. This paper begins by presenting a demoicratic model of a legitimate rule of transnational law culminating in the elaboration of a normative principle of mutual recognition amongst peoples. That principle is then applied to assess the real-existing rule of EU law. This analysis leads to the conclusion that the current fundamental terms of the real-existing rule of law, and specifically the manner of their establishment through judicial activism, contravene that normative principle of mutual recognition. The national enforcement of EU law cannot be justified through appropriate consent and control of peoples on the establishment of the rule of EU law but must rely on the functional contribution of a rule of transnational law to the process of European integration (Scharpf 2010). Thereafter, potential solutions are evaluated using the demoicratic principle, including: intergovernmental deliberation of fundamental doctrines for the EU legal system through an Ordinary Revision Procedure and, the transition from a strong to a weak judicial review procedure in which courts no longer have the authority to refuse to apply national law but only to issue declarations of incompatibility (Waldron 2006).