All Good Things Come in Threess: From a Double to a Triple Democratic Legitimacy of the European Union

Abstract

The paper traces the theories developed concerning the democratic legitimacy of the Union and acknowledges the progress made with the adoption of the theory of double legitimacy, according to which the EU is not merely an international organisation, based only on the will of the ‘high contracting parties’, the states, but a ‘Sympolity’ (Tsatsos) of states and peoples. At the same time, it discards the arguments for assessing the legitimacy of the EU as a regulatory regime whose legitimacy should be assessed exclusively in terms of regulatory results. It purports, however, that the double democratic legitimacy is no longer enough for the present state of Union affairs. At the same time it also challenges the view that the only ‘pure’ democratic legitimacy would be the one flowing from a single ‘European demos’, which would transform the Union into a state. It rather proposes that the suitable ‘democratic’ legitimacy in the present historical and political phase is a triple one, based on states, peoples and citizens alike. This triple legitimacy is already enshrined in some EU Treaty provisions, especially the newly inserted articles, 10 11 and 12 TEU by the Lisbon Treaty, as well as those in the composition of the Convention (art. 48 par. 3 TEU). These provisions still need to prove operative. Also, further steps towards a more enhanced citizens’ approval of Union basic law and politics need to be taken in accordance with the triple legitimacy theory, given some specific limitations: the particularity of European citizenship and sentiment of (non) belonging, the asymmetry in the federal structure which follows from the flexibility clause; sovereignty as pragmatically riddled, nevertheless, conceptually robust as a discursive claim in favour of state-centrism which preserves the particular status of states and nations.