The starting point for this thesis is the recognition of what the European Court of Justice has done, and what it continues to do. The European Court of Justice, through its decision-making in its cases, makes law. It does so in such a way that has profound consequences for the legal and political institutions of the European Union, as well as for the legal and political institutions of the Member States of the European Union. For example, by virtue of the Court’s decisions, Member States’ national courts must now, where relevant, apply the law of the European Union in domestic proceedings in preference over its domestic law; Member States’ legislatures can not produce law that is contradictory to European Union law; and the European Union’s legislative process must conform to human rights standards – as set out by the Court. These types of decisions, and the law that is thus produced from them, have a significantly political quality to them – as if they might otherwise have been made by a more orthodox type of political institution, such as a parliament – and, thus, beg the question, are they democratically legitimate decisions? Or, rather, is the European Court of Justice a legitimate democratic forum for such political decisions to take place? 

The purpose of this thesis is to answer these questions by proposing that the European Court of Justice is a democratically legitimate forum for these types of political decisions. This is so, not just because the Court promotes and protects fundamental rights, for example, but also because it presents as an inherently democratic process that is contributory to a democratic political community. The focus of this thesis will be on arguing in line with this latter proposition.

In support of this claim I propose:

1. That because of the various types of participants in the Court’s proceedings, there is a sufficient degree of public involvement to qualify the process as democratic. In particular, the involvement of individuals (i.e. the litigants) who are there to represent their interests directly; that the proceedings are open to government representatives of the Member States – allowing them to voice their interests in any given decision, if any; an impartial expert on European Union law to advise the judiciary for any given decision (the Advocate-General); and, not least, the panel of judges.

2. That the Court’s process of decision-making itself, i.e. the formation of consensus via deliberation, follows the kind of “rational discourse” model of which contemporary democratic theory emphasises as a necessary condition for political decision-making institutions to be democratically legitimate.

3. To demonstrate that the European Court of Justice is a democratic forum by examining its governing statutes and laws in light of the assertions made in points 1 and 2 above. From the Court’s governing laws I will test issues such as the openness, or accessibility, of the Court’s procedures to the various types of participants (e.g. individuals and Member State representatives) – with respect to point 1; as well as testing for the Court’s deliberative potential and actual deliberative performance – with respect to point 2.