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.