Democracy and European Integration: A Legacy of Tensions, a Re-Conceptualisation and Recent True Conflicts?

Abstract

This paper seeks to synthesise two concerns which are usually discussed separately. One concerns the much discussed democracy deficit of the European polity. In this respect, it is considered that the democratic quality of the EU needs to be discussed in conjunction with Europe's potential to enable European citizens to see themselves as the sovereigns of the economic and social order. The decoupling of Europe's economic constitution from the social constitutions of Member States by the 1957 EEC Treaty has created a "social deficit" of the European construction which needs to be overcome if the EU is to gain full democratic legitimacy. The second concern is with the modes of governance that Europe has established in order to respond to irrefutable regulatory needs, including the quests for a European social model. Here, Europe is, especially in areas of social policy, resorting to soft law and non-legal governance techniques, which seem hardly reconcilable with Europe's commitment to the rule of law. Before paying the high price of de-legalisation, Europe should try out the alternative of re-conceptualising European law as new type of conflict of laws. This law would seek to attain what the Constitutional Treaty had called the "motto of the Union", namely, a reconciliation of "unity and diversity"; it would not only help to rescue the rule of law but also serves to enhance Europe's chances of coping with the unresolved substantive tensions, including the social deficits of the European polity.

Keywords: European law, democratic deficit, social policy, governance