The intensity of judicial review of EU and Member States’ legislative acts

The CJEU has different standards of review depending whether legislative acts stem from Member States or from the EU itself. It has been suggested that an explanation for this less intense scrutiny of EU legislative acts can be found in democratic legitimacy theory. Whereas EU legislative acts are mandated by all EU citizens through democratic participation at EU level, Member State legislative acts stem from a much smaller group of EU citizens, and seek to protect certain national interests, excluding the interests of the wider European population. However, this paper argues that shortcomings in the EU legislature should also be taken into account in determining the proper standard of review. When this is done, the divergence in intensity of review exceeds what can be justified by democratic legitimacy arguments. The CJEU’s relative lack of scrutiny of EU legislative acts therefore requires an alternative justification, or explanation.  Institutional or legal factors may be more illuminating than normative-aspirational explanations in terms of democracy.