In June 2024, Martijn van den Brink’s monograph, Legislative Authority and Interpretation in the European Union was published by Oxford University Press. The book tackles deep conceptual issues about the EU legal order, and yet its insights are also relevant for some of the most pressing practical issues facing Europe today. Martijn van den Brink is an Assistant Professor of EU law at Maastricht University, and he has previously held positions at the Hertie School of Governance in Berlin, the University of Oxford, and the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen.

Could you summarize the key arguments of your book for our readers and listeners? In particular, due to the relevance to our platform’s focus on democracy, could you outline the importance of demoicracy for your arguments regarding legislative and judicial authority in the EU?

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Let me first try to summarize some of the key arguments of the book as well as the contributions that I hope it makes. Then, at the very end, I will get to the issue of demoicracy.

The starting point of the book is that the EU legislator remains systematically neglected in EU legal scholarship, and the goal of the book is to address this. The central question that I ask is what changes if we move the legislator from the sidelines to the center of EU legal scholarship. In my view, that changes our understanding of the Court of Justice of the EU in two important ways. First, it changes our understanding of how the Court of Justice works empirically speaking, and secondly, it changes our understanding of how it ought to work normatively speaking.

Empirically, if we focus on the relationship between the Court of Justice and the EU legislator, we see that the Court of Justice is far less activist and purposive than many of us think it is. When we look at how it deals with legislation, the picture that we get is quite a different one. Because rather than an activist court, the Court of Justice is often quite passive when it deals with legislation and it is deferential to the legislator. So, it is not activist at all.

Secondly, I think that my book also changes our understanding of the Court of Justice, normatively speaking. There is a lot of normative debate on the legitimacy of the Court of Justice, but most of the debate has focused on the vertical relationship between the CJEU and national authorities.

The argument that I make in my book is that we cannot know how the Court of Justice must exercise authority in relation to the Member States unless we know how it must do so in relation to the EU legislator.

We must first focus on the horizontal relationship between the Court and the legislator before we can say anything about the vertical relationship between the Court and the Member States. To do this, my book addresses questions of judicial deference, judicial review, and the interpretation of EU legislation.

Let me address your question about the importance of demoicracy to my argument regarding legislative and judicial authority in the EU. Maybe it would be good first to clarify what we mean by demoicracy.  Demoicratic theory provides a conceptual and a normative basis for analyzing the EU. Demoicratic theory understands the EU as a system that functions as a government of the peoples, in the plural. It also argues that the EU should be evaluated as such, as a government of the peoples, so that for the EU to be legitimate, the national peoples – the national demoi – must be able to exercise shared control over EU decision-making. What demoicratic theory does is escape the shackles of nation-centered thinking, which often assumes that the EU must function as a government of the people to be democratic and to have legitimacy.

What I argue in the book is that, by taking a demoicratic perspective, we significantly improve our appreciation of the EU legislative process. The value of the EU legislator can be quite easily dismissed if we take a nation-state perspective of democracy because the EU legislator departs from the principle of political equality of citizens. This is widely considered to legitimize national democratic decision making. The EU legislator departs from this principle internally because of the principle of degressive proportionality, Qualified Majority Voting in the Council, etc. I argue that this precisely gives the EU legislator demoicratic legitimacy because, for those reasons, it allows EU decision-making to be placed under the shared and equal control of citizens. It does not do so perfectly, but it certainly does so better than the judicial process does. This is why I argue that there are demoicratic reasons to prefer legislative decision making over judicial decision making within the EU.

You talked there about the neglect for the EU legislature amongst EU law scholars. I think that it is fair to say that your book implores those scholars to take the EU legislature seriously in understanding authority and legitimacy in the supranational polity. Do you believe that insufficient attention and respect for the decision-making authority of the European Parliament, and perhaps particularly the Council, has played any part in the ‘values crisis’ of backsliding in which certain Member States have questioned the authority of the Court of Justice of the European Union? Do you think there is any credence to the suggestions that the Court of Justice has been engaging in ‘policy oriented’, rather than ‘normative decision making’?

I doubt that insufficient respect for the legislator, as in the Parliament and the Council, by the Court of Justice has played a large role in rule of law backsliding. Because, if we look at the disputes where national courts have questioned the Court of Justice’s authority, we see that most of these cases did not involve the EU legislator or legislation. In fact, in one case – Melloni – the Court of Justice actually refused to accommodate the constitutional identity of Spain because the issue had been subject to EU harmonization. In that case, actually, the Court of Justice followed the EU legislator.

In that sense, I do not think that insufficient respect for EU legislation by the Court can explain the value crisis of rule of law backsliding or the response of national courts.

But I do think that it will be harder to criticize the Court of Justice legitimately when it is respectful of the choices of the legislator, where there is legislation, because there will be cases that are not subject to EU harmonization. And why is this the case? Member States, or at least a large majority of them, have agreed to legislation and this, in my view, does grant the Court of Justice a certain degree of legitimacy. I think there are good reasons for the Court to respect legislation, but I am not sure that the issue of whether it does so or not has played a large role in the values crisis.

Let me try to address your second question. Is there any credence to the suggestion of opponents that the Court of Justice has been engaging in policy-oriented rather than normative decision-making? I suppose there is. On the one hand, I think that plenty of constitutional decisions were taken by the Court of Justice that were informed by policy orientations. I do not think that is only something from the last couple of years.  We can go back decades, and we can find such policy orientations in early case-law as well.

But I am not sure if it is so easy to draw a clear distinction between policy-oriented versus normative decision-making because when it comes to constitutional decision-making, it is hard to exclude policy orientations from the decision-making process entirely.

In my view, including policy orientations in constitutional decision-making does not necessarily undermine the normative legitimacy of the Court taking such decisions.

I think that takes us back to a classic debate in jurisprudence when Ronald Dworkin talked about policy and principle. I think that you are very right to point out, perhaps especially in a polity like the European Union, that it can be hard to separate those two concepts out neatly. I suppose I take your answer to the first part of the question as saying that perhaps it is that classic vertical relationship between Member States and the EU that is at the heart of the rule of law crisis. But maybe we should keep an eye on the horizontal dimension, especially as we move into a new legislature for the EU.

On that topic, we have recently seen the Commission President, Ursula von der Leyen, going into her second term and appointing her College of Commissioners designate, pending approval by the European Parliament. There have been arguments that she is moving towards a US style presidential, rather than ‘collegial’, system for the European Commission. To what extent do you think that the composition of the Commission and also the composition of the political groups and committees in the European Parliament and the political axis of the Council configurations matter for your argument that the legislature is structured to facilitate joint action and generate coherent internal attitudes?

Before I explain what I mean, you are right to say that I argue in the book that the EU legislative process, and this is simplifying somewhat, is an institution to facilitate joint action and generate coherent legislative intention. In making this argument, I draw attention to the role of the Commission and its agenda-setting role, as well as the importance of political groups in the parliament and legislative committees. Do changes in the way that the Commission is organised, the European Parliament or its political groups are composed, or Council configurations have an impact on whether the legislator can form coherent intentions? The answer to that is, I think, no, it does not. But I should be very clear about what I mean. Of course, the composition of the Commission, the political groups in the European Parliament, and the Council configurations have an impact on what kind of legislative intentions are being formed in the legislative process. Simplifying, it has an impact on the ultimate content of legislation.

My argument or my interest was different.

I was not interested in what kind of legislative intentions emerge from the legislative process, but in the prior questions of whether the EU legislator is at all capable of forming coherent legislative intention.

An argument that we often see in the literature is that the EU legislator cannot form intentions because the legislative process involves lots of individuals with very different intentions and interests. The idea is that we cannot form coherent institutional intentions out of those very different individual intentions.

I show in my book that these different individual intentions can be aggregated into a coherent legislative intention because of how the different institutions involved are organized, and because of how the legislative process is structured. As I said earlier, I discuss [MB6] the agenda-setting role of the Commission as well as the role of political groups and legislative committees in the Parliament and how the different EU institutions interact when they are negotiating legislation.

The political configurations within the Parliament or the Council clearly matter politically, whether or not the Commission moves from a collegial to a presidential system. But I do not think that question matters for the issue of whether the EU legislator is capable of forming coherent intentions.

Focusing a bit more on the role of legislatures in the abstract, away from the European Union, you argue in your book that the legislature has greater capacity than the judiciary to initiate legal change and to realize social change. I was wondering how much your argument was inspired by conceptions of ‘parliamentary sovereignty’ in Westminster style systems, and also examples of how that legislative sovereignty has been exercised in the past, for example, through the decriminalization of homosexuality in England and Wales in the 1960s. Do you believe that the primacy of the legislature is a model that could and should also be followed in the EU? Or does the complexity of a multi-nation polity require a stronger executive and judiciary in supranational integration?

These are excellent questions. Before I address them, let me try to explain what I mean when I say in my book that the legislator has greater capacity than the Court of Justice to initiate legal changes and to realize social change. The legislator has greater capacity to realize legal change because it is a better lawmaker.

What I mean when I say that the EU legislator has greater capacity to realize social change is that, if all things are equal then it is more likely that national authorities comply with legislation than case law.

This is partly due to the fact that legislation provides more clarity than case law. I think that there is a certain rule of law value of legislative decision-making over judicial decision-making, and I think it goes back to the issue of legitimacy. The legislator has greater legitimacy than the court, which might be another reason for why national institutions might be more willing to comply with legislation than with Court of Justice case law. We have also seen when national courts are confronted with case law that really ignores EU legislation they have refused to comply with the case law of the Court of Justice. In a nutshell, that is what I argue in part of my book.

Now, then, your first question is how much is this argument inspired by conceptions of parliamentary sovereignty? My book is inspired by such conceptions, although it does not entirely follow them, and inspired by the work of scholars whose views are very much aligned with the idea of parliamentary sovereignty. One of the very first scholars who made me reflect more critically on the role of the EU legislator was Jeremy Waldron and his work The Dignity of Legislation. I say quite explicitly in my book’s conclusion that it seeks to draw attention to the dignity of legislation within the European Union, which is an explicit reference to Waldron’s work and his ideas. There are other scholars whose views align with the idea of parliamentary sovereignty that have informed my thinking. That said, unlike many of those scholars, I am not completely opposed to the exercise of judicial review of EU legislation by the EU Court of Justice. In fact, as I argue in my book, I do not think that we can do entirely without it in the EU context.

This brings me to your second question about whether I believe that the primacy of the legislator is a model that should be followed within the EU. In my book I say that the legitimacy of judicial review is, in my view, partly a context-dependent issue. For example, I believe that the question of the legitimacy of judicial review has a different answer in a unitary system than a federal system. It can also have a different answer in a state system than it has in a post-national system, like the EU.

I think that we should be very careful when it comes to applying national constitutional concepts and national constitutional theories to the EU setting. This is one reason among others why I do not advocate a system of parliamentary sovereignty and the full primacy of the legislator in the EU.  

I do believe that the power of judicial review should be used sparingly by the Court of Justice, and that ideally EU lawyers should reflect more critically on judgments that strike down legislation.

It might be a bit of a simplification of the argument, but in my view the Court of Justice should almost always respect the choice of the legislator and only very exceptionally use its power of judicial review to strike down the legislative choices that have been made.

I think that your argument to be wary about applying national constitutional models to the EU is very prudent. The United Kingdom, in which sovereignty accrued very slowly from one figure – the monarch – to an elected body, is an extremely different historical context to the European Union, in which states came together to pool sovereignty. On that topic, I cannot resist asking you a question about the UK and parliament as it stands today, because we have a situation in which the Labour Party have won a landslide of seats, whilst not having a very large share of the popular vote. That could raise questions again about what Lord Hailsham called in 1976 the dangers of majoritarian ‘elective dictatorship’. Based on your expertise on legislatures, what is your opinion on this argument about how parliamentary sovereignty could bleed into what has been called elective dictatorship?

Before I answer that question, I would like to go back to being wary about the idea of borrowing national constitutional concepts. I do think that we should be careful, but at the same time, I also think that we should try to learn from domestic debates.

At times I feel that people involved in the EU legal debate are trying to ‘reinvent the wheel’ when there is already a lot that we can learn from constitutional, legal, and political debates that focus on domestic settings.

 We should try to learn from those debates. We should engage with those debates and at the same time reflect on the extent to which we might have to adjust the concepts that come up in these debates to make them applicable to the EU setting.

Then, are there dangers of a majoritarian elective dictatorship in legislative focused systems? I do not think that I am the person to say anything about the UK currently, or in general. So, let me try to address your question by focusing on the EU legislator. Would the quasi-primacy of the EU legislator create a danger of an elected dictatorship or the ‘tyranny of the majority’ in the EU context? I doubt it. The answer that I gave in the book is no.

I think there are various reasons for this. First, we should be aware that the EU legislative process is not strictly majoritarian. Far from it. It is a very inclusive process; many different interests are represented. In addition, fundamental rights also carry considerable weight in the legislative process. The latter has made a very positive contribution to protecting fundamental rights, certainly in the area of EU anti-discrimination law. More generally, there is not much evidence that the interests of minorities are systematically neglected in the legislative process.

There is scholarship that shows that the very diversity of the EU legislative process makes it difficult to erode fundamental rights through legislative decision-making.

Again, I guess that this might also be a context-dependent issue. I do not want to speak about the UK, but I do not think that within the particular EU context the dangers of a majoritarian elected dictatorship or a tyranny of the majority are very large.

I think that is a very compelling argument. I wonder if there is any scope for a very EU-focused argument on the dangers of the ‘tyranny of the qualified majority’…

I do not address that question in the book, but there is probably quite a bit of scholarship on that issue of the legislature not being effective enough to address problems precisely because of qualified majority voting.

Going back, your first answer and what you were saying about not reinventing the wheel reminded me of the great work that Signe Larsen did looking at the concept of federation and how that applies to the European Union.

That is a fantastic book.

Absolutely. For our final question, I would like to return back to the central thesis and conclusions of your own monograph. You reject both instrumentalist interpretation, with the argument that it focuses only on ends to be achieved, and you also reject purposive interpretation, as it gives insufficient weight to the constraints imposed by legislative rules. The reliance of the latter on the telos – purpose – of European integration as ‘ever closer union among the peoples of Europe’ seems to me to be another of what Alexander Somek has called the ‘darling dogmas of bourgeois Europeanists’. Bearing that in mind, how would you persuade EU law scholars, policymakers, and pro-Europeans in general to ‘kill their darling’ of teleological or purposive interpretation, and instead adopt your theory of legislative interpretation?

That is an excellent question.

How to kill the darlings of EU law scholars? In a way I can be very short in my answer. Look at how the Court of Justice decides cases. Look at how the Court of Justice interprets legislation. Yes, it does apply the purposive or teleological method, but it does so in combination with other methods. In fact, other methods are often more important in how the court interprets legislation than the purposive or teleological method.

I would argue that my theory of interpretation is very much in line with the court’s approach to interpretation.

What is my approach?

My argument is that, when it comes to legislative interpretation, interpreters should try to identify and respect the intentions of the legislator. To do so, they should not only take into account the purposes of the underlying legislation, but also the written constraints of the rules that we find on paper. In addition, courts or other interpreters of EU legislation can and often must interpret individual provisions systemically.

This means looking at the place that one provision has in the wider scheme. In my view, that approach is really quite consistent with how the Court of Justice interprets legislation, at least in theory. It is very much consistent with how the Court sets out its approach to interpretation, for example, in the famous CILFIT judgment. Of course, in practice, the Court can reach conclusions that are in my view wrong because it does not follow that method correctly. But generally, the Court of Justice does a good job when it comes to the interpretation of legislation and the Court does not interpret legislation exclusively or mostly in a purposive way. If those who favor purposive interpretation do not want to kill their darlings, then they should be a lot more critical of the Court of Justice than they are. The fact that they are not suggests to me that they do not really believe in their darlings and that they, in fact, are already on my side and favor my method of interpretation.

I think that is a very elegant response. But I think that we may be seeing undue extrapolation to the general level from the specifics of ‘hard cases’. The fact that the Court has had to use teleological interpretation to fill gaps means that perhaps we have focused too much on those examples to the detriment of what actually happens with most cases. From personal experience, language really does matter. Wording really does matter in the EU legislature in putting together texts. For example, ‘compromises reports’ in the European Parliament require the administrators to find wording that will capture many different opinions and amendments forwarded by MEPs for the final text of a resolution or other text. This really does reinforce your argument about how the text is the starting point and that there is legislative intention about how the text should matter.

I think it does matter. To get back to your first point of extrapolating from hard cases, we have all been guilty of that as lawyers. We like to focus on the hard cases because they are the cases that are constitutionally most interesting, and most controversial. That is what our academic debates are often about, and part of me thinks that is rightly so.

But the risk is that we then assume that all cases are hard cases or that the behavior that the court displays in those cases is the court’s behavior in general, and that is not the case.

 Not every judgment of the Court of Justice, and this is a bit banal, is like Van Gend en Loosor Costa v ENEL.

Now that is obvious, but at the same time there is still this belief – but perhaps less so among EU lawyers than among domestic lawyers – that the Court of Justice is activist and is constantly trying to expand the Court’s powers.

But it has often been EU legislation that interpreted EU competences expansively. The Court just went along. Happily, perhaps –but it was not the Court who took the initiative.

In fact, the CJEU often takes a backseat. It often simply respects what the legislator decided. In my view rightly so, but we can debate that. We should just not assume that the Court of Justice always reasons in the majority of its cases in the way it does in the harder and more controversial cases.

So, we should be careful about not being distracted from the mundane woods by the exciting, exceptional trees?

Yes, but then do we all want to do the mundane stuff?

That is why we chose academia… Thank you Martijn.

This transcript has been edited for length and clarity. In collaboration with Ertuğrul Kaan Yıldırım.