Defending Democracy Through Law: The Establishment of the Legal Service of the European Parliment

Authors

Fernanda Giorgia Nicola Dr., American UniversityWashington College of LawFollow
Antonio Caiola

Document Type

Article

Publication Date

2022

Journal

Fordham International Law Journal

Volume

46

Issue

1

First Page

1

Last Page

58

Abstract

Democracy, as well as the rule of law, is one of the founding values of the European Union. With the recent rise of some authoritarian governments in Europe, scholars have focused primarily on the efforts led by the European Commission and the European Court of Justice (“ECJ”) to curb democratic backsliding. While European institutions have struggled defending the rule of law inside the Union through lawsuits and economic sanctions against those governments, the history of integration shows how the European Parliament (“EP”) led the efforts to cure the democratic deficit existing in the European institutional system. Since the end of the 1970s, attempts to democratize the European Communities (“EC”) have put at the center of the integration project the EP representing the citizens of the Member States. However, until the mid-1980s, the EP, because of its heritage, has remained a relatively weak decision-maker compared to its counterparts—the Council and the Commission. The growing role of the EP as a co-equal legislative branch through achieving full legal status remains a relatively unknown history in the struggle to democratize the European Union. This article re-tells the history of how achieving this status became possible, through legal mobilization before the ECJ, to create, inter alia, the conditions to establish the Legal Service of the EP in 1986. By way of the legal action before the ECJ, we trace how the Legal Service, despite support and pushbacks inside their institution, contributed in shaping the constitutional principle of institutional balance in order to empower the EP vis-à-vis the other European institutions. The establishment of an entirely representative EP, equipped with a powerful administration including an independent Legal Service, started to re-balance the asymmetric relation between executive and legislative powers, governments and parliaments, governors and the governed inside the Communities. On the basis of the documents at our disposal, two different legal strategies seemed to arise in Luxembourg. The first one aimed at prioritizing above all the introduction of actions before the ECJ, in order to highlight the increasing role of the EP and probably also driven by the ambition of its Jurisconsult to establish a powerful bureaucracy. In contrast, the second strategy, without denying the importance of the actions before the ECJ when necessary, was based on an incremental attempt to create the conditions that would allow the establishment of an independent Legal Service for a fully accountable EP. This second strategy of democratization through law helped in driving the EP towards its current role as a central player in defending the rule of law and preserving a democratic decision-making process inside the European Union.

Recommended Citation

Fernanda G. Nicola Dr. & Antonio Caiola, Defending Democracy Through Law: The Establishment of the Legal Service of the European Parliment, 46 Fordham International Law Journal 1 (2022).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2191