Jean Monnet Center at NYU School of Law


Author: Stefania Ninatti

Title: How do our judges conceive of democracy? The democratic nature of the community decision-making process under scrutiny of the European Court of Justice.


This paper examines the ECJ case law on the democratic nature of the community decision-making process and is an attempt to draw a file rouge from this line of judgements, even if the fact that the Court fluctuates "between highs and lows", following the path not only of specific individual cases, but also of the institutional historic moment, makes this task a difficult one.

The paper shows us that the democratic principle used by the ECJ judges seems, at least initially, to need to rediscover itself in the constitutional traditions common to the member States. A sign of that osmosis occurring between the Community level and the national one: the Court finds supports in the classical theory of representative democracy as the living experience of the legal orders of the Member States. This study also argues however that, at the moment, the Court doesn't linger too much - except in rhetoric - on the problematic of popular representation but, rather, focuses its attention on the principle of institutional balance limiting, in the end, the democratic process to within the boundaries of the institutional relationships.

The starting point for the democratization of the Community decision-making process seen in the jurisprudence of the ECJ has been until now, the strengthening of the role of the European Parliament. It is clear however that the ECJ does not view this as sufficiently encompassing and continues to seek alternatives to fill the perceived democratic deficit. It is these alternatives which the author will explore and consider more fully.

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