Democracy Manifest? Ensuring the EU Legislature’s Democratic Legitimacy in the Face of National-Level Autocratisation

There are numerous means through which EU institutions can seek to enforce the value of democracy under Article 2 TEU. However, each of these mechanisms may contain weaknesses in the face of determined national-level autocrats. The possibility that attempts to address democratic backsliding at national level may fail must be countenanced. The functioning of the EU’s representative democracy (Article 10(1) TEU) hinges on the legitimacy of its legislature (the European Parliament and the Council) as set out in Article 10(2) TEU, with EU citizens directly represented in the European Parliament and Member States being represented by their governments, ‘themselves democratically accountable either to their national parliaments, or to their citizens’. The EU’s representative democracy is therefore dependent on conditions at national level, whether in the context of European Parliament or national elections. This article examines the extent to which EU law allows the presence in the European Parliament and the Council of democratically illegitimate national-level representatives, with a particular focus on the possibility of exclusion of such representatives. After the acknowledging the problem of identifying the meaning of democracy in EU law, the article concludes that orthodox interpretations of existing primary and secondary EU rules, together with existing jurisprudence of the Court of Justice of the EU, leave the EU’s legislature open to autocratic trespass by national-level representatives. The article then suggests new interpretative approaches to EU primary and secondary law that would allow the exclusion of such institutional representatives and describes how such exclusion could be operationalised procedurally.