"An ever closer union” and the CJEU’s Wightman Judgment - EU Law - Lecture 2

What is Article 49 TEU? What does it require, and what are components of the process, and why is it voluntary? And how does this relate to the legitimacy of the EU?

Article 49 TEU is the legal basis and formal procedure for any European state to apply for and join the European Union (EU). It mandates that applicant nations respect and promote EU values (Article 2) and requires unanimous approval from the European Council. Applications are submitted to the Council, which acts unanimously after consulting the Commission and receiving European Parliament consent.

The existence of Article 49 is based on emphasising the notion that joining the EU is entirely voluntary in order to uphold sovereignty of member states, but also to avoid arguments of control or the EU being a totalitarian force, since member states agree to conform, restrain a portion of their sovereignty and it is tied to the legitimacy of the EU.

Why is there conflict between the voluntary nature/membership of EU in Article 50 TEU versus the enforcement of constitutional values within Article 49 TEU (which reinforces the Article 2 TEU values)? Why do clashes with Article 2 TEU/constitutional values undermine the legitimacy of the EU - and where do we see these clashes and an example being gay marriage? What are counterarguments such as Spain and Germany and the importance of constitutional values?

There is a clash between the values of voluntary nature and enforcing key principles values.

• An evident example of this clash between these two concepts is demonstrated through the requirement across the EU and the expectation that member states are expected to implement to specific rules such as the legislation of same sex marriage as per Article 2 TEU obligations, though there is conflict with conservative EU Member States who are actively backsliding on LGBTQ+ rights as shown in Czechia, Slovakia, Hungary and Poland which are all EU Member States.

When there is a clash against these fundamental values within Article 2 TEU, it weakens the legitimacy of the EU and shared constitutional values it was built upon. When these values within Article 2 TEU aren't enforced, it merely acts as embellishments without upholding the very values the EU advocates for.

• This is especially clear with Eastern European countries, prominently Poland and Hungary and by extension the EU then applies restrictions for violating those Article 2 TEU values through various forms, such as restriction to freedom of movement and other penalties in place to uphold those values. This raises concerns of voluntariness.

• THOUGH … Nations like Germany and Spain had emerged out of dictatorship when they had initially joined the EU, hence the EU had reinforced their democratic system and attitudes to uphold those core constitutional values, and the main belief was that by entering the EU, Member States would become democraticised, hence holding shared values which would create a United Europe and less division and fragmentation across the European continent.

Within both the Copenhagen Criteria and Article 49 TEU, how can a country become an EU member state? What is the 2 requirements in order to fulfill Article 29 TEU and the 4 requirements to fulfill the Copenhagen Criteria?

Whilst we need Article 49 to be fulfilled in order for a country to be considered as a Member State, it is also required that the Copenhagen Criteria be met too.

The Copenhagen criteria are the 3 rules that define whether a country is eligible to join the European Union, they are -

1. A stable democracy (and rule of law) and human rights (and minority protection)

2. A functioning market economy, and

3. The capacity to adopt all EU laws

Article 49 TEU has two fundamental requirements within it that must be fulfilled in order to be considered an EU candidate and eventually a Member State. These requirements are -

1. ‘Any European State’

2. ‘which respects the values referred to in Article 2 TEU’

What is meant by ‘Any European State’ within the criterias required to become an EU member state as per Article 49 TEU? And why is this a problematic requirement with examples?

1. The notion of ‘European’ is an evolving concept in recent years, especially with the emergence of countries like Turkey as potential candidates to become an EU Member State - There was debate as to whether nations like Turkey would be compatible to enter the EU, as per geographically, it is in Eurasia hence fulfilling the ‘geographic’ definition of what is meant as European, however there were concerns about differences in religious and cultural attitudes. Though these concerns were addressed, since the definition of ‘European’ is deliberately vague with no additional restraints on how it is defined, hence Islamic nations can be considered as there is no mandate on specific religious beliefs such as Christianity.

2. We have also seen the following countries of Morocco, Israel and Canada try to join the EU historically, however this didn’t come to actuality. The following arguments for these nations was that these nations wasn’t classified as geographically within the realms of Europe, despite arguments of European settlers and colonisers being prominent in countries such as Canada and Israel, the argument was relatively weak.

What is meant by country ‘which respects the values referred to in Article 2 TEU’ (within the criterias required to become an EU member state) as per Article 49 TEU?

The language used in Article 49 TEU addressing Article 2 TEU is constitutional, hence there is a heavy emphasis on shared constitutional values and upholding liberties.

What is the Copenhagen Criteria and what role does it play? What are the 3 criterias within the Copenhagen criteria? And what were the two criticisms that arose from the Copenhagen Criteria?

What is the Copenhagen Criteria? And what role does it play? → The Copenhagen criteria played a dual role of both guiding candidate countries towards democratic reform and protecting the EU itself.

The Copenhagen Criteria has 3 requirements, which are →

1. Democracy, the rule of law, human rights and respect for and protection of minorities;

2. A functioning market economy

3. Effectively implement the rules, standards and policies that make up the body of EU law

What were the criticisms regarding the Copenhagen Criteria? → Many observers criticized the conditions for being -

1. too broad and

2. open to highly subjective interpretation

What does the 3 steps to the ascension process into the EU entail? And what are the problems with the ascension process?

3 step process -

• Under Art. 49 TEU, countries wishing to join the EU submit applications for membership to the Council of the Ministers (these make up of ministerial representatives of each Member State).

• The European Council takes key decisions in the process, including on giving the applicant state “candidate status” and launch negotiations.

• The European Commission (The EU’s Executive Arm) issues recommendations on whether countries are granted ‘candidate status’ and start negotations, undertakes a screening process to assess whether candidate states’ align with EU rules and prepare negotiating frameworks.

Problems with the ascension process -

• The process can be lengthy, notably for applying states where there have been recent transitions to democracy and significant disparity with the EU in terms of economic development.

What is the context, issue and outcome of Wightman and Others v Secretary of State for Exiting the EU?

Context of the case? → The British Prime Minister notified the European Council of the UK’s intention to withdraw from the EU under Article 50 TEU. A petition for judicial review was lodged by members of the UK Parliament.

Issue of the case → Whether there are not two options, but three, namely withdrawal from the European Union without an agreement, withdrawal from the European Union with an agreement, or revocation of the notification of the intention to withdraw and the United Kingdom’s would remain in the European Union?

Outcome of the case → Once all these requirements have been fulfilled, the following Member State can invoke its intention to withdraw from the EU.

• This revocation can be done unilaterally, unequivocally, and unconditionally, by a written notice addressed to the European Council once that Member State has decided to revoke in accordance with its national constitutional requirements.

• The purpose of revocation is to confirm EU membership under terms which leave its status as a Member State unchanged and brings the withdrawal procedure under Art. 50 TEU to an end.

Why was there a rejection of the idea that the revocation of leaving was denied according to the Wightman judgement, and how does this relate to Article 267 TFEU Preliminary Ruling?

Reason why the argument that revocation of leaving was denied is rejected? → The reason why there was a rejection of the idea that the revocation of leaving was denied, was because being able to revoke and then reapply for a position as a Member State raises questions of abuse and misuse of the EU, such as member states wishing to conveniently leave or revoke their revocation when there aren't any ideal conditions or advantages from leaving, and the ability to revoke or not would leave room for exploitation for Member States to leverage their position and power to leave based on demands they make. This avoids member states trying to negotiate their member status without the limited timeline outlined.

How it relates to Article 267 TFEU? → It outlines that the CJEU will have jurisdiction to give preliminary rulings in regards to interpretation and validity of interpretation

BUT the application of the law is left to the domestic law to apply the CJEU's interpretation accordingly and CJEU could refuse to rule on a question when it is obvious where the interpretation of EU has no influence on the facts of the case OR when the case/question at hand is hypothetical and must be a genuine, live issue of considerable practical importance - the CJEU perceives itself as a constitutional body as opposed to being a international body - EU law is DISTINCT from international law as member states have chosen to limit their sovereignty and rights of their nationals (outlined in clause 44, 45, 49, 50, 56, 59, 61 63 and 74 in Wickman case)

What is known as democratic deficit?

Democratic deficit is the transtition from an increase to decreased parliamentary control and instead a transition from a domestic body to a supranational body.

What are the 5 arguments that come with ‘democratic deficit’?

1. The executive and legislature balance

   • Integration has led to an increase in executive power: powers had been transferred from the national level up to the executive at EU level, decreasing in national parliamentary control.

2. Weak EU legislature

   • The European Parliament is too weak to compensate for this. Its legislative role is limited, and it does not elect the executive.

3. No ‘European’ elections

   • Both EP & national elections are not really about Europe. Low and falling turnout (reversed in 2019, 2024), no European-wide political debate or public sphere.

4. Policy Drift

   • The EU adopts policies not supported by majorities of citizens. Integration has produced a policy drift away from voters’ ideal preferences.

5. No Demos

   • There is no European people that could exercise its popular sovereignty and legitimate the EU.

What is the summary of the Demos argument, what can constitute a Demos, and are there any attempts to form a Demos in Europe?

Summary of the Demos argument? → The fundamental argument of ‘Demo’ is that there is no European Demos, or otherwise European People, hence there cannot be full democracy in the EU.

What can constitute a Demos? → Demos means people, and often associated with their similarities or unity in language, culture, identity - a sense of unity within nationalism and homogenity.

Are there any attempts to form a Demos in Europe? → This emphasised by programs and organisations such as ERAMUS and EU passports which are created to foster a sense of European identity.

What is the issue of not having a ‘demos’? (relating to the democratic deficit) and an example of this?

The nationalism and identity of a particular identity built around common language, culture and history isn't implemented on a wider scale of European identity and by extension, these national identities are constructed in terms of cultural before they’re embedded into the idea of a State

(such as German culture, language and history existed prior to the creation of a United German state in the 19th Century under Bismarck and the same is said for Italy, these following countries having national identities constructed by cultural nuance before they were a recognised state and country or otherwise known as ‘imagined communities’ as per Benedict Anderson who outlined that national identities were constructed, hence why couldn’t a European identity be constructed?)

What does Nicolaidis believe? Do we need a European Demos, or should we have something else?

Nicolaidis argued that we should think of Europe as a Demoi-cracy (demoi being a plural of demos) and that instead peoples of Europe should rule together but not as one.

What does Nicolaidis and Sternberg believe? Do we need a European Demos, or should we have something else?

Nicoladis and Sternberg outlined that demos can be established through a mutual recognition as an ethos and on the notion of a Collective ‘Community of Project.’

What does Dawson and de Witte believe? Do we need a European Demos, or should we have something else?

Dawson and de Witte argue for conscociationalism instead of Demos, they argued we should focus on forging consensus between different interest groups in society rather than seeking to structure politics (at whichever level) to forge majoritarian rule.

What are 2 arguments in favour or against the notion of the EU having a ‘democratic deficit’?

For

• EU action does create winners and losers electoral contestation is needed at the European level (e.g. Hix/Føllesdal)

• We’ve been looking in the wrong place: it’s the EU’s problem-solving capacity that’s the issue (Scharpf)

Against

• For the type of actions the EU performs, democratic institutions are not needed (Majone)

• The EU is legitimate as its institutions are tightly constrained by elaborate system of checks & balances (Moravcsik)

What are Majone’s views on ‘democratic deficit’ - which is AGAINST the notion of the EU having a democratic deficit? And what was his revised opinion now?

Majone believed that having more electoral democracy would be harmful.

EU is a ‘regulatory state’. Its policies are pareto-efficient (there is no other solution in which someone is better off and no-one is worse off). It does not engage in redistributive policies.

Majoritarian democratic politics, however, leads to redistributive rather than pareto-efficient policy outcomes. Making the EU more “majoritarian” would politicize policy making, and make it redistributive rather than pareto-efficient. This would undermine the EU’s legitimacy, which rests on pareto-efficient output.

Majone has since revised his view (2014): Euro crisis for example showed that integration no longer positive-sum game and that solutions by the EU to address these polycrisis has only further aggravated the democratic deficit (citizens excluded, national governments forced to accept solutions…).

What are Moravscik’s views on ‘democratic deficit’ - which is AGAINST the notion of the EU having a democratic deficit?

Moravscick’s view is that the EU being a legitimate as its institutions are tightly constrained by elaborate system of checks and balances.

Primary and delegated legislation passed through stringent checks and national oversight, and with more transparency than in some member-states.

Much power rests with elected national representatives, so EU policies are a reflection of (the sum of) national policy preferences. Some institutions (e.g. ECB, CJEU) are unaccountable because inherently technocratic/independent.

What are Follesdol and Hix’s views on ‘democratic deficit’ - which is FAVOUR the notion of the EU having a democratic deficit? And what is the solution they offer to the problem?

Follesdol and Hix believed that a democratic politic requires contestation for political leadership and argument over the direction of policy agenda.

The EU is ‘unresponsive to democratic pressures’; voters cannot change the government. Since legislative power is divided btw Council, Commission and EP but only EP directly elected change in composition of EP will not necessarily lead to major shifts in policy.

The EU is not all about policies that benefit everyone. It creates winners and losers. Many regulatory policies have redistributive consequences (e.g. banking, monetary) and a number of EU policies have an explicitly redistributive purpose

Democratic institutions can ensure correspondence between policy outcomes and voter preferences, such as -

• Competitive elections are crucial to make policies and elected officials responsive to the preferences of citizens.

• Political competition is an essential vehicle for opinion formation and for getting voters on board

The solution to the problem as per Follesdol and Hix? → democratically elected Commission president, more transparent Council

What are Scharpf’s views on ‘democratic deficit’ - which is FAVOUR the notion of the EU having a democratic deficit? And what is the problem and solution that Scharpf identifies?

Scharpf believed that the EU’s legitimacy resting on output efficiency and not democratic input, but its capacity to deliver efficient problem solving is UNDER pressure.

Need for democratic legitimation in the EU has been low: supported by broad consensus or covered a general belief in the rule of law. Joint decision-mode ensures that EU policies generally do not violate interests of high national political salience

Focus on output legitimacy (effective solutions to common problems) rather than Input legitimacy (institutions maximizing government responsiveness though electoral accountability)

• Problem: consensus mode makes the EU unable to act when salient interests are in direct conflict. At the same time, increasing demands for effective solutions at EU level problem-solving gap (euro crisis, refugee crisis, Brexit, pandemic, Ukraine?)

• Solution: EU of “enhanced cooperation" and "constructive abstention" (variable geometry) to increase capacity for European political action

In summary, how has the EU attempted to solve or address concerns of democratic deficit (overall summary) in 4 ways?

1. Enhancing the citizen-EU link

2. either strengthening the link between European citizens and the EU and the EU’s political dimension (aka “federalist” options), including by strengthening the European Parliament

3. or strengthening the member-state governments or parliaments (aka intergovernmentalist options), who are democratically elected by the European citizens

4. increasing the EU’s capacity to act effectively and bolster its output legitimacy

how has the EU attempted to solve or address concerns of democratic deficit in regards to ‘enhancing the citizen-EU link’? (5 ways)

• European Citizens Initiative Article 11 (4) TEU: 1 million EU citizens from 7 MS or more can submit. Civil society participation and ‘governance’ as a more “genuine” form of democracy

• “Spitzenkandidaten” process of political groups in EP each nominate a front runner for the Commission presidency, not demanded by the Treaty, but facilitated by Lisbon

• Strengthen judicial accountability of EU institutions and law-making, through Lisbon reformed Article 264(4) TFEU, with a view of assisting private litigants seeking judicial review of EU regulatory acts not requiring implementing measures.

• Demos-, identity- and constitution building (if there’s no European demos, let’s forge one) through cultural and communication policies, tangible benefits such as ERAMUS and other schemes

  • This is done through (failed) 2004 constitutional treaty - in 2004, there was an attempt to create a constitution and by extension a constitutionalism patriotism (to imitate constitutional nature similar to the US) but this was rejected by France and Netherlands and struck out the constitutional elements eventually forming the Lisbon Treaty

how has the EU attempted to solve or address concerns of democratic deficit in regards to ‘federalist’ options? (5 ways)

• Direct elections since 1978 at the European Parliament

• Vis-à-vis Commission, the EP has been given increasingly more power to hold the Commission to account - to an extent that it is now a system similar to what you find in the member-states

• Appointment of Commission President and College → the European Council proposes by QMV a President of the Commission, who is then elected (or rejected!) by the EP through by qualified majority (Article 17(7) TEU).

• EP holds ‘hustings’ of individual Commissioner candidates through a ‘vote of consent’ (although its appointment is dependent on a majority vote of the Council).

• End Commission’s agenda setting/right of initiative monopoly: EP can request COM to submit any appropriate legislative proposal (Article 225 TFEU; under Article 241 TFEU, the Council may do the same).

how has the EU attempted to solve or address concerns of democratic deficit in regards to ‘intergovernmentalist options’? (4 ways)

• Reinforcing role of national governments

  • Lisbon: Explicit distribution of competences in various policy areas between Member States and the Union. Intergovernmental decision-making and shared or coordinative competences in key areas

  • Comitology oversight system: series of committees composed of member-state (and EP) representatives overseeing the executive activities of the Commission, and its power to implement and pass delegated EU legislation → it constitutes an attempt to strengthen and clarify the oversight power of Council and EP over the technocratic expertise vested in the Commission

  • Grant new powers to national parliaments →

    • Arguably big losers in process of EU integration; member-states are represented by their governments (in Council) and citizens, directly by EP

    • Lisbon: national parliaments can scrutinize EU legislative proposals and evaluate whether they are incompatible with the principle of subsidiarity and force the Commission to review the measure → subsidiatry is known as where EU action must be taken at the lowest possible level and when decision makers feel more confident acting on matters than member states themselves

how has the EU attempted to solve or address concerns of democratic deficit in regards to ‘bolstering its output legitimacy’?

• Qualified majority voting (Article 238 TFEU): expansion intended to overcome joint decision trap and make EU political action more effective. In specified areas, Council votes not by unanimity, but representing at least 55% of the EU countries AND 65% of the EU population

• How has the EU managed its ongoing polycrisis (2008 Financial-economic crisis, 2015 refugee crisis, Brexit, pandemic, Ukraine)?

  • Pandemic highlighted lacking competencies but gave enormous boost to EU policy making: voluntary joint procurement agreement adopted by Commission that MS could opt it to; NextGeneration EU unprecedented support package

What are some developments made by the EU on the input legitimacy side? (3 ways)

1. Qualified Majority Voting has reduced member-state veto power in Council of Ministers and in effect strengthened the influence and role of EP

2. Recently, EP elections less second order, more about European issues. 2019 EP election highest turnout (51 %), and 2024 similar. but great national variation and still low compared to national elections. Evidence that MEPs vote increasingly along party rather than national lines.

3. High levels of trust in EU Institutions (Eurobarometer 2025): Do you tend to trust ….? - EP 53%, ECB 51%, COM 51% (EU 51%) vs National parliament 37%, National government 33%