Supremacy Rule of Law in the Service of a Depoliticised Democracy—Pondering the Nature of the EU's ‘Social Contract’

ABSTRACT Seeing the EU roughly as a political system designed to remove the most essential political decisions from democratic control, while in a large part abiding by legal frameworks, we could speak about an opposition between technocratic legalism and democracy. At best, the EU offers a democracy of means, with limited capacity to affect the ends of the project. Most recently, even this limited democracy came under attack through a further reduction of transparency, a proliferation of omnibus legislation and constant executive overreach. In its current emanation, ‘integration through law’ aims to shield all aspects of governance not only from democratic but also legal contestation. It thereby structurally prioritises ‘supremacy’, ‘direct effect’, ‘mutual trust’ and other procedural aspects of its own functioning over the essential foundations of justice, democratic citizenship based on equality and dignity and human rights protection. We could thus also speak of ‘supremacy rule of law’, which might or might not be an attack on the essential aspects of legality and justice, removing the added value of the rule of law as such. Consequently, distilling the essence of the ‘social contract’ in Europe today, one arrives at a bundle of oxymorons: The EU's supremacy rule of law is in the service of an ever fading depoliticised democracy of means.