On the eve of the Conference about the Future of Europe the EU Court of Justice (CoJ) has made a significant contribution to the forthcoming debate by clarifying the concept of ‘European democracy’. In a similar way as the CoJ established in 1963/4 in the cases of Van Gend en Loos and Costa v ENEL that the Communities formed an ‘autonomous legal order’, the Court explicated in 2019 that the European Union has an ‘autonomous democracy’. This finding is of great importance for the other EU institutions in their endeavour ‘to give new impetus to European democracy’.
As indicated in the previous blog on Brexit and European democracy, the Conference about the Future of Europe has been initiated in the aftermath of the 2019 elections for the European Parliament and the subsequent nomination of a candidate for the function of President of the European Commission, who had not participated in these elections. In hindsight, it turned out that the competing political parties and the European Parliament on the one hand and the European Council on the other hand had fundamentally different perceptions of the electoral system of the EU. While the parties and Parliament took the 2007 Lisbon Treaty as the basis for their system of ‘Spitzenkandidaten’, the Council founded its actions on the 1976 Act concerning the election of the Members of the European Parliament. As these differences of opinion had to be sorted out, the Conference has been tasked to propose a solution before the next EP-elections in 2024.
From Prison to Parliament
In their preparatory documents, however, the participating EU institutions have failed to indicate what they mean by the term ‘European democracy’. It is therefore most helpful that the CoJ has stepped in by establishing that the EU has an autonomous democracy. In its verdict of 19 December 2019 (case C 502/19) the Court stipulates that the EU has an autonomous democratic order, which must be respected by its member states. They should notably refrain from actions which have the effect of undermining or obstructing the democratic system of the Union. In case, the refusal of the Spanish authorities to enable an elected candidate to participate in the constituent meeting of the new Parliament on the ground that he had been convicted for a number of serious crimes and consequently remained in prison, was dismissed as an obstruction of the democratic system of the Union.
A Democratic Union of Democratic States
It can be safely assumed that the reverberations of this verdict will be similar to those of the 1963 Van Gend en Loos-case. This blog can pretend no more than to form a first indication for its relevance. The significance of the verdict for the upcoming Conference about the Future of Europe is that it paves the way for the description of the EU as a ‘democratic Union of democratic States’. Obviously, the new EU democracy is not a replica of the established democracies of the member states. After all, the EU is not a state and is not likely to become one in the foreseeable future. The principal distinction between the two is that the democracy of the member states is based on the people or demos of those states, wheras the democracy of the Union is founded on EU citizenship (δεμοκρατεια as opposed to πολιτηκρατεια). Article 10 TEU explicitly states that the functioning of the Union shall be founded on representative democracy and that the citizens shall be directly represented at Union level in the European Parliament. So, while the member states nurture a national citizenship, EU citizenship has a functional meaning. It is a precondition for the EU to work as a European democracy.
It may be regarded as a most fortunate coincidence that the CoJ has delivered its verdict only a few months before the start of the long-awaited Conference about the Future of Europe. This will not only facilitate the task of the participants in the Conference, but also oblige them to give the young European democracy a solid philosophical basis and to ensure the future of the EU as the first democratic organisation of states in the world!
 Political Guidelines of the Commission Von der Leyen, 6th priority
 J. Hoeksma, European Democracy, Tilburg 2019