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8 Democratic Legitimacy of EU Action Under Article 16 TFEU: A Prerequisite for Trust

8 Democratic Legitimacy of EU Action Under Article 16 TFEU: A Prerequisite for Trust

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4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



argue against the democratic legitimacy of the Union, precisely because of the

absence of accountability in free elections.140

In our view, and in line with the views of Weiler and others,141 it is difficult to

deny the importance of the relationship between legitimacy of government action

and elections expressing the will of the people. In this regard, reference may be

made to Article 21 of the Universal Declaration of Human Rights: “The will of the

people shall be the basis of the authority of government; this will shall be expressed

in periodic and genuine elections which shall be by universal and equal suffrage and

shall be held by secret vote or by equivalent free voting procedures.” The EU Charter

of Fundamental Rights is more modest in its wording, but nevertheless Article 12(2)

Charter reads: “Political parties at Union level contribute to expressing the political

will of the citizens of the Union.”

This controversy on the democratic legitimacy of the European Union has wider

relevance for this book, especially because it analyses the domain of fundamental

rights, which is close to the citizen. Democratic shortcomings of and a lack of support for the Union are matters of concern, also because the use of the wide powers

on data protection afforded to the Union under Article 16 TFEU delimits the discretion of democratically legitimised national governments, in connection to fundamental rights protection.



4.8.2  T

 he Legitimacy of EU Action Depends

on the Subject Area

The German constitutional court made an attempt to classify certain areas of government intervention in its Lisbon ruling,142 in which it ruled that certain areas are

of such a sensitive nature that sufficient room must be left to the Member States143

and competences should not be fully transferred to the European Union. The

Bundesverfassungsgericht mentioned, in particular, “areas which shape the citizens’

living conditions”. This includes the private sphere of the individual protected by

fundamental rights, as well as a variety of cultural issues including the freedom of

opinion, press and association. It also mentioned areas which are “particularly sensitive for the ability of a constitutional state to shape itself”, such as the police’s



140



 Further read: The Constitution of Europe, “Do the new clothes have an emperor?” and other

essays on European integration, Joseph Weiler, Cambridge University Press, 1999.

141

 Craig submits that not many commentators support the views of Moravcsik.

142

 2 BvR 2661/06, 6 July 2009, e.g. at 249.

143

 The list of sensitive areas is also relevant for subjects that would qualify as being part of the

national identity (as meant in Article 4(2) TEU). It is wider than the subjects mentioned here.

Further read: Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for

national identity under the Lisbon Treaty’, CMLR, 48: pp. 1417–1453, at 1435–1436.



4.8  Democratic Legitimacy of EU Action Under Article 16 TFEU: A Prerequisite…



153



monopoly to use force within the state.144 This approach of the German constitutional court has been criticised,145 but in essence it is useful for the subject of this

book.

The mandate of the European Union under Article 16 TFEU deals with a sensitive area, as explained by the German constitutional court. The fundamental rights

of privacy and data protection are essential societal values that deserve protection.

This protection also implies the balancing with other fundamental rights. Moreover,

in quite a number of situations privacy and data protection require balancing with

the protection of physical security, traditionally a state function.

The Lisbon ruling of German constitutional court illustrates that certain elements

of the mandate of the European Union under Article 16 TFEU are related to direct

interests of individuals and to essential state functions. Payandeh mentions these

two aspects as subjects that the Bundesverfassungsgericht claims it may review

under EU law.146 Although assessing the value of the Lisbon ruling of the German

constitutional court falls outside the scope of this book, this ruling supports the

argument that for these aspects the input legitimacy plays a strong role.

This is not a plea for a (re)nationalisation of privacy and data protection as long

as the democratic legitimacy of the Union is still incomplete. However, the argument does show a paradox. On the one hand, in domains where essential values

affecting EU citizens are at stake, these citizens may expect to be effectively protected. The citizens’ trust in an effective and protective government is key in these

domains. From the perspective of effectiveness, the European Union is best placed

to ensure privacy and data protection in an internet environment, also taking into

account the principle of subsidiarity. On the other hand, these are politically sensitive domains requiring sensitive policy choices, precisely because of the direct connection with citizens. This is even more obvious where privacy needs to be balanced

with security or with the freedom of expression. From the perspective of legitimacy,

there should be full democratic control. This requires that government action is

subject to high standards of democratic accountability. EU action should thus comply with high standards, both in terms of effectiveness (output legitimacy) and of

democratic legitimacy (input legitimacy).147



144



 And – less relevant here – the monopoly of the use of force by the military towards the exterior;

at 252 of the ruling. Also, decisions of substantive and formal criminal law are mentioned.

145

 E.g. in: Daniel Halberstam and Christoph Möllers, The German Constitutional Court says “Ja zu

Deutschland!”, 10 German Law Journal, 1241–1258, 2009, at 241.

146

 The third subject where such a claim is made is ultra vires review, referred to below in Sect.

4.13, Mehrdad Payandeh ‘Constitutional review of EU law after Honeywell: Contextualizing the

relationship between the German Constitutional Court and the EU Court of Justice’, 48 CMLR,

Issue 1, pp. 9–38, 2011.

147

 Dougan shows this is not easy, where he explains that the Lisbon Treaty succeeds in terms of

effectiveness (“Europe of results”), but not in terms of understanding and acceptance; Michael

Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–

703, 2008, at 702.



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4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



4.9  T

 he EU and Its Citizens: The Concept of EU Citizenship

Contributes to the Legitimacy of the EU’s Role

Under Article 16 TFEU

Democratic legitimacy and accountability148 is an underlying theme that pops up in

various chapters of this book, since it is a precondition for restoring trust in governments. Governmental actors need to be democratically legitimised and fully

accountable for all their acts. The democratic legitimacy of the European Union is

one of the widest debated topics in relation to the Union’s powers and actions. This

book does not aim to add new substantial ideas to this debate. The ambition is more

modest: understanding legitimacy in order to provide a perspective for EU action

under Article 16 TFEU, which justifies EU action and gives insight into its restrictions and limitations.

The first interlocutors of the European Union are – logically speaking149 – the

individuals, in the foundational part of the Treaties, including the Charter, also mentioned as peoples or citizens. Article 1 TEU underlines “the process of creating an

ever closer union among the peoples of Europe”. The preamble of the Charter contains the same notion and declares: “[The Union] places the individual at the heart

of its activities, by establishing the citizenship of the Union.” Under Article 20(2)

TFEU EU citizens shall enjoy the rights and be subject to the duties under the

Treaties.150

The relation between the Union and individuals has various dimensions, but it is

key that individuals may expect effective privacy and data protection under EU law,

on the basis of the EU mandate under Article 16 TFEU. As explained, they may also

claim that the Union’s intervention is democratically legitimised. Other relevant

dimensions are the access individuals should have to justice – or wider, to remedies151 – under the rule of law, as well as the balancing between privacy and data

protection rights and other legitimate interests of citizens, be it the exercise of other

fundamental rights, the safeguarding of security or other interests.152

An additional observation concerns the scope of EU privacy and data protection

ratione personae. The Charter applies to all individuals within the scope of EU law,

regardless of their nationality or residence. Where the treaties mention the peoples

of Europe153 this group obviously is narrower, as EU citizens are only those persons



148



 Hereafter simplified to the term of ‘democratic legitimacy’.

 Without entering into a debate whether the EU primarily unites individuals or Member States;

this order is in any event logical in this book since it deals with fundamental rights.

150

 Article 20(2) TFEU enumerates a few specific rights of the citizen of the Union, not relevant for

his book.

151

 Such as remedies before the supervisory authorities for data protection under Article 8(3)

Charter and Article 16(2) TFEU.

152

 These dimensions are elaborated in different sections of Chap. 5 of the book.

153

 See, e.g., the recitals of the TEU: “Desiring to deepen the solidarity between their peoples while

respecting their history, their culture and their traditions.”

149



4.9  The EU and Its Citizens: The Concept of EU Citizenship Contributes…



155



having the nationality of a Member State.154 This book, dealing with Article 16

TFEU and Articles 7 and 8 of the Charter, normally concerns the widest group

(“individuals”), however subject to the following nuance: there is a link between the

legitimacy of the European Union as an actor in the protection of fundamental rights

on the internet and EU citizenship. EU citizens may, precisely because of their status as EU citizen, expect that the Union effectively protects their fundamental rights

to privacy and data protection.

The European Union does not only deal with natural persons, but also with companies and legal persons. Their legitimate interests necessarily play an important

role in this book, if only because the first responsibility for ensuring privacy and

data protection on the internet lies with those processing personal information, quite

often private companies or non-profit organisations. These actors are also expected

to cooperate with governmental actors on governance issues. Their role will be

addressed in several parts of this book, but not as key interlocutors for privacy and

data protection.155 The book does not address the complex doctrine on the protection

of fundamental rights of legal persons.156



4.9.1  E

 U Citizenship: EU Citizens’ Expectations That Their

Rights Are Protected

A lot has been written on EU citizenship, in particular in relation to the rights of free

movement of EU citizens within the European Union and the prohibition of discrimination on grounds of nationality, as well as on the political rights of EU citizens.157 This book does not deal with the specific rights of EU citizens and the

limitations of those rights, nor is it focused on EU citizens.

However, EU citizenship is relevant for two – closely interlinked – reasons.

Firstly, arguably, EU citizenship gives a title to the legitimate expectation of the citizens that the European Union effectively protects their fundamental rights. Secondly,

the aim of fulfilling this expectation possibly provides legitimacy to EU action on

privacy and data protection. The link between these reasons is that enjoying the

right to privacy and data protection, as guaranteed under the specific mandate of

Article 16 TFEU, gives substance to EU citizenship.

154



 EU citizenship is defined in Article 20(1) TFEU: “Every person holding the nationality of a

Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and

not replace national citizenship.”

155

 This choice is justified by the starting point of the book that the protection of fundamental

rights – as a public good – is a primary responsibility of government (on different governmental

levels).

156

 See on this: Dirk Ehlers (ed.), European Fundamental Rights and Freedoms, De Gruyter Recht

Berlin, 2007, at 385.

157

 See, e.g.: EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca,

2011, Chapter 23, and Jo Shaw in: The evolution of EU Law (Second Edition) Paul Craig and

Grainne de Burca, Oxford University Press, 2011, Chapter 19.



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