In important areas of EU law, the principal law-making institution is the Court of Justice of the European Union and not the EU legislature. This article criticises the current allocation of power between both institutions and the different conceptions of political legitimacy that have been developed to justify it. The Court’s authority has been justified on the basis of output-oriented conceptions of political legitimacy that ground legitimacy in the kind of outcomes political institutions produce. Martijn van den Brink argues that the different standards of output-legitimacy used are important but insufficient to legitimise EU institutions. Only input-oriented legitimacy can serve as a sufficiently strong form of legitimacy for the EU. More concretely, he argues that the EU must be assessed by demoicratic standards of legitimacy. Unlike output-oriented theories of political legitimacy, which justify the transfer of authority from the EU legislature to the Court, a demoicratic conception of political legitimacy weighs in favor of legislative decision-making. This article explores whether it is possible to improve the political status of the EU legislature without Treaty amendment.
Martijn van den Brink (2021) The European Union’s demoicratic legislature, International Journal of Constitutional Law.