A Matter of Democracy? How (Not) to Interpret Provisions on Institutions and Procedures in EU Constitutional Law. On the Interpretation-Guiding Function of Preambles in EU Law (Nicholas Otto)

This article demonstrates the difficulties of interpreting concrete treaty provisions on the basis of abstract preamble concepts using the example of a democracy-induced interpretation of EU law on legislative procedure. In particular, it will be argued that treaty provisions on decision making cannot be meaningfully understood as "democratic" rules, but rather as intergovernmental compromises aimed at balancing different Member State interests, and that they must therefore be interpreted in accordance with this specific feature. Evidence for this line of argumentation is provided not only by considerations of constitutional theory and the history of European integration, but also by an analysis of the case law of the European Court of Justice, which uses institutional balance as a key component of argumentation in interinstitutional and procedural conflicts instead of democracy. Finally, the paper discusses what can be learned on the functions of preambles in EU law in general from the considerations made specifically for the topos of democracy.