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Pls see scan below. I don't understand how "[t]his view is mistaken." If the CJEU sets "hard limits for the Union legislator", how isn't this "inherently anti-democratic", whether "the democratic majority of the Union or the democratic majority of a State should decide on the matter"?

Robert Schütze. European Union Law 2 ed. 2018. p. 264. All emboldenings are mine.

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  • Isn't this a question about federalism as a concept. The idea that an individual state gives up power to a larger body, isn't inherently undemocratic. Any more than the idea that a state makes legislation that applies to your town, street or house even though a majority of people in those locations might not want it, is undemocratic. If this isn't what you're getting at, please add in some more details. – Jontia Aug 2 at 8:35
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    If I may suggest, there's a Law Stack Exchange, which would have been a much better venue to ask your last few questions. – Denis de Bernardy Aug 2 at 15:22
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    A solid majority of the people in my body are in favor of my beliefs. It's undemocratic for anyone to impose their wishes on me. – Obie 2.0 Aug 3 at 3:23
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It is not anti-democratic for the CJEU to set limits to the democratic power of the EU, when the CJEU does so to protect the democratic power of the individual states.

The EU is a union of democratic member states. This is a hard criterion; it's the first of the Copenhagen criteria on candidate EU member members. It's also a union of sovereign states. If any country finds continued EU membership irrevocably at odds with national interests, Article 50 gives them the right to withdraw from the EU; Brexit is a clear example.

Yet the EU is more than a simple treaty between sovereign states. It is effectively a government on its own, with its own democratic institutes. And in many areas, but not all, the EU has supremacy over the legislation of its members.

As a result, the question which parliament is supreme depends on the area of legislation, and the border is not always clear-cut. At that point, it is up to the CJEU to decide which parliament gets to decide, but either way the CJEU itself does not write the legislation.

  • I think the question is concerned with the reverse version of your opening paragraph. But your last paragraph makes the CJEU's role clear. – Jontia Aug 3 at 6:36

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