RECON Online Working Paper 2010/17

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Bringing European Democracy back in

Or how to Read the German Constitutional Court’s Lisbon Treaty Ruling



Erik O. Eriksen and John Erik Fossum (ARENA, University of Oslo)



This article critically examines the democratic theory that informs the German Federal Constitutional Court’s Lisbon Treaty ruling. This is needed because the ruling is ambiguous with regard to what democracy for what Union. In order to analyse the ruling we establish three models of what European democracy possibly can amount to: Audit democracy based on the EU as a derivative of the member states, a multinational federal state, or a regional-cosmopolitan polity? The Court’s depiction of the EU does not fit as well as we should expect with the label derivative entity due to the important legislative role of the European Parliament. EU’s legal supranationalism points in the direction of a federation, but the Court’s argumentation does not lend support to this notion. The Court models democracy on a rather specific set of institutional presuppositions that are derived from the parliamentary model of democracy associated with the sovereign nation state. At the same time, the Court operates with a conception of a changing state sovereignty that unfolds more in line with cosmopolitan than with classical Westphalian statist principles.


This article was first published in the European Law Journal, volume 17, 2011. It is reprinted here by permission of the European Law Journal.


Constitutionalism – Democracy – Democratisation – Federalism – German Constitutional Court – Legitimacy – Supranationalism

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