Leiden Law Blog

The European Parliament as Benchmark of Transconstitutionalism

Posted on by Hans-Martien ten Napel and Joost Luiten in Public Law
The European Parliament as Benchmark of Transconstitutionalism

With the European elections in the offing, the question of which party to vote for seems to be in danger of getting drowned out by the question of why we should vote at all. Voter participation in European elections has witnessed decline; in the Netherlands specifically, there seem to be few guarantees that the meagre 36% turnout in 2009 will be substantially improved upon. The culprits are often identified to be the European Union’s institutions, which are disfavourably compared to the institutions of nation-states. The European Parliament especially, is criticised as being weak compared to national parliaments, while the executive it is supposed to check is not as well-defined an antagonist as in national systems.

Viewing the European Union (EU) through this state-centred lens seems neither fitting nor fair, however. The time that states were the only sovereign power holders and therefore the near-exclusive focus of constitutional law, have long passed. Although their importance certainly remains, states have become part of a multi-layered global legal order, in which they are joined by international organisations and various forms of private and hybrid actors. The aim and domain of in particular comparative constitutional law are shifting accordingly to the constitutionalization of these transnational actors and their interactions; a process in which some constitutional bedrock principles developed in the nation-state can be adapted or adopted, while others cannot.

This so-called transconstitutionalism does not purport, for instance, to mirror the exact separation of powers in nation-states on an international level. Applying this, at least partly antiquated, standard to the EU and its parliament does not necessarily lead us very far. The EU is not a proper state and the European Parliament cannot be an exact copy of its national counterparts. A more pluralistic approach to the separation of powers, moreover, dispenses with the idea that a hierarchy is strictly required in order to provide decision-making processes with democratic legitimacy. Instead, power is divided freely along vertical as well as horizontal lines, demarcating the boundaries both between state actors and between state actors and private and hybrid bodies.

When viewed in this transnational context, the EU in general and the European Parliament specifically stand out as remarkably constitutionalized already, despite the Union’s lack of a written constitution. There is certainly room for further constitutionalization. The European Parliament currently still lacks a formal form of legislative initiative, while it is still excluded from several remaining special legislative procedures, for instance. At the same time, the ministers and heads of government making decisions and shaping the EU’s future in the Council and the European Council respectively, have a democratic mandate as well. This second source of democratic legitimacy should not be dismissed too easily, since European affairs have become an issue in many national elections.

Surprisingly, those who most fear the EU becoming a superstate are often the same ones who tend to judge it by a state’s standards. On the same note, it seems out of place that those who are apprehensive about a pluralistic governance order in which constitutional standards may be less abided by, should be so unappreciative of a transnational actor in which constitutionalization has progressed significantly over the years and democratic legitimacy is actually tangible.

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