Chapter 1: How can the European Union be legitimized?

What is the European Union about?

The European Union (EU) is a legal construct: the law is central. The EU provides flexible regulation through law. Of course politics is an important part of the EU as well, but in this book the law (set in the political context) is the main subject. 

How did European Union law develop?

Economic integration

The EU used to put their main focus on the four freedoms: the free movement of goods, persons, capital and services. It also used to focus on competition law and state aid. This focus on economic integration was essential because now states would depend on each other and wouldn't go to war.

Widening of the material scope

The material side of EU law has been expanding. One of the founding fathers of the EU, Jean Monnet, hoped that the spillover effect would occur: integration in one sector needs integration in another sector to maximize the integration in that first sector. For example: free movement of goods was legitimized because of consumer protection and if you really want to optimize the free movement of goods you need a single currency. This was launched by the Maastricht Treaty (1992) and was the first step in creating an economic and monetary union (EMU). With further integration of economic policies and greater political control, the tension between the need for effective governance of the EU while at the same time still respecting State autonomy grows. This tension for example led to the United Kingdom leaving the EU (Brexit 2016). The EU law seems to be expanding on the non-economic issues as well: for example regarding criminal law and immigration or asylum issues. 

Widening of the territorial scope

The EU has widened its territorial scope as well (from six to 28 members). For member states the EU law has a greater force into national law than other international law.

Institutional framework

EU law also develops an institutional framework for the adoption and enforcement of its law: a political system as well as a judicial system have been established. The EU puts a great focus on human rights.

The debate

With the development of the EU, questions about national sovereignty within the EU legal system rise. And questions rise about how for example the separation of powers has been integrated in the system. What is the role of multi-level governance within the EU and how does the EU relate to other international bodies outside its influence?

Which two types of legitimacy are there?

There are two types of legitimacy: in- and output legitimacy. Output legitimacy answers the question of 'what' the EU should be doing, input legitimacy answers the question of 'how' the EU should be doing it.

Input legitimacy

Input legitimacy regards the fairness and the amount of democratic legitimation of the decision-making of the EU. Various systems help achieve this legitimacy, think of separation of powers or procedural rights. These systems all come together in a broader system: protection of human rights. In 2009 the legal order was restructured to provide for a binding EU Charter of Fundamental Rights and the EU had an obligation to sign up for the European Convention of Human Rights (ECHR).

A tension remains: the more that the EU gets involved, the less individual states can make their own decisions. On one side there is a vertical issue: the issue with the diversion of powers between the EU en its member states. On the other side there's the horizontal issue: the issue with the priority of economic over non-economic objectives. 

Output legitimacy

Output legitimacy regards the effectiveness in contributing to achieve things in subjects that have a wide public support. It relates to the core issues of economic integration and other areas such as health care and social policy. The EU has reinforced its politics and because of this they got better at negotiating international agreements.

This results in a situation in which maintaining the four freedoms, makes it impossible for member states to control their own borders.

The hardest challenge is being able to deliver growth and prosperity due to the financial crisis. This crisis has also posed big challenges for the welfare state. There are three main reasons for these challenges.

1. The measures taken in the crisis have led to cuts in for example social benefits or health care.

2. Member states have  been forced to cut wages and labour standards, because they don't have their own currencies anymore to devalue.

3. There is greater pressure from the EU on States to open up the provision of public services in order to obtain value for money.

This tension between objectives (economic vs. non-economic) are played out in other areas as well: for example in environmental law the EU has to strike a balance between environmental and economic objectives as well.

How can the EU gain legitimacy?

The EU has changed the relation between states and their citizens, they have also reformed major policy areas and improved the quality of life of individuals. However, national politicians can't seem to explain the benefits of EU membership, the justification of 'delivering peace' doesn't seem to be relevant anymore as well. Therefore, output legitimacy needs to be made strongly for the EU to keep legitimacy.