20
Joseph H. H. Weiler
Introduction générale
Federico Mancini in his
Europe: The Case for Statehood
forcefully articulated
the democratic malaise of Europe. There were many, myself included, who
shied away from Mancini’s remedy, a European State, and shied away from
his contention that this remedy was the only one which was available. But few
quibbled with his trenchant and often caustic denunciation of the democratic
deficiencies of European governance.
But could the Court distance itself from this malaise so trenchantly and
caustically denunciated by one of its judges?
It is precisely on these occasions, I argued, that I rejoice most that I am
not a judge on the Court. What would I do if I felt, as Mancini did, that the
European Community suffered from this deep democratic deficit which he
described so unflinchingly and which according to him could only be cured
by a European State? Would I want to give effect to a principle which rendered
the Community’s undemocratic laws – adopted in his words by ‘numberless,
faceless and unaccountable committees of senior national experts’ and
rubber-stamped by the Council – supreme over the very constitutional values
of the Member States? If democracy is what one cared about most, could one
unambiguously consider much of the Community edifice a major advance?
Whatever the hermeneutic legitimacy of reaching Supremacy and Direct
Effect, the interaction of these principles with the non-democratic decision-
making process was and is, highly problematic. In effect, if not in design,
giving Direct Effect in the context of European governance, objectifies the
individual or re-objectifies him or her. In the Member States with imperfect
but functional democracies the individual is ‘the’ political subject. In the
EuropeanUnion with its defective democratic machinery where the individual
has far less control over norm creation, Direct Effect has the paradoxical effect
of objectifying him or her – an object of laws over which one has no effective
democratic control.
The paradox is thus that the legitimacy challenge to the Court’s consti-
tutional jurisprudence does not rest as often has been assumed in its herme-
neutics – a good outcome based on a questionable interpretation. But quite
the opposite: An unassailable interpretation but an outcome which under-
pins, supports and legitimates a highly problematic decisional process.
Substantively, then, the much vaunted Community rights which serve, almost
invariably the economic interests of individuals were ‘bought’ at least in some
measure at the expense of democratic legitimation.
