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The institutional balance as an agent of transformation in the EU constitutional order: reconciling the simultaneous rise of the European Parliament and European agencies

Desmond Johnson

Keywords: republicanism; institutional balance; EU constitutionalism; European Parliament; EU agencies

This article assesses how shifts in the institutional balance transform the European Union (EU) constitutional order. Significant developments including the simultaneous rise of the majoritarian European Parliament (EP) and non-majoritarian European agencies exemplify such transformations, raising fundamental issues concerning the role such actors play in the EU. This study shows how different processes – from formal Treaty provisions and Court of Justice of the European Union jurisprudence to extra-legal processes within and beyond the Treaty – shape the role and function of both actors, thereby potentially shifting the institutional balance in a manner not envisioned by the Treaty. These questions about the impact of the institutional balance persist in the aftermath of the euro-crisis. Accordingly, this contribution critically examines such transformations to investigate whether a republican model can democratically legitimate the rise of both actors. This article contends that the rise of both actors is legitimated if the necessary ex-ante and ex-post legal and political controls linked with republican governance are in place to limit the ability for either to exercise public power in a dominating or arbitrary fashion.

This republican account understands that each societal force reflects competing societal interests, constitutional values, and legitimacy claims. From this perspective, the inclusion of a plurality of societal forces in EU governance is essential for obtaining republican objectives linked to the public good, including self-governance, non-domination, and non-arbitrariness. Thus, the participation of both the EP and European agencies – each with its own version of the public good and how best to achieve it – is essential to ensure the multi-actor creation of constitutional norms geared toward the public good. This article concludes that an intensification of republicanism can secure an institutional balance that transforms the EU constitutional order in a manner that enhances the legitimation of the EU in the wake of the euro-crisis.

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