Constitutional Expectations and the European Union: A Way out of the Democratic Legitimacy Trap?

For the past 25 years, the EU has undergone a process of incremental constitutionalisation and institutional reform - recently culminated in the Lisbon Treaty. Different treaty reforms have addressed specific institutional shortcomings, so that today’s executive and legislative functions are distributed among the European Parliament, the European Council, the Council of Ministers and the European Commission. Still, the EU remains short of what is generally referred to as a government. The elected political leadership of a state’s executive branch is often the most visible, recognised and scrutinised part of a constitutional system. Thus, I argue that the EU’s constitutionalisation process, driven no less by national governments, has set-up an effective judiciary and legislature but has failed to provide the EU with a clearly identifiable executive. Even in the post-Lisbon EU, executive leadership, executive visibility and executive accountability is only very sparsely provided by the Commission and the European Council. This paper examines the legal and political reasons behind this Montesquieuian shortcoming and its impact on the perceived lack of democratic legitimacy within the European Union. In doing so I use the concept of ‘constitutional expectation’ to explain why democratic legitimacy cannot be achieved at the European level within the exiting institutional system due to the Union''s executive opacity. The paper finishes with a proposed institutional re-structuring that would meet constitutional expectations and provide a remedy for the EU’s perceived lack of democratic legitimacy.