Page - 74 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Alexander Somek 74 by appearing in uniform or by posting outsized blue banners bearing the golden imprint “More Europe”. Rather, they present their actions as an outgrowth of necessity. They claim merely to do what would have to be done by anyone whose mind is amenable to rational insight. But precisely therein resides the authoritarian element. It is submitted that the significance and adequacy of the concept can be proven by departing form the facile perspective on democratic legitimacy that one encounters not least in the juris- prudence of the German Federal Constitutional court. It puts delegation at its centre.59 All actions by the Union are based upon the delegation of sovereign powers of the Member States. Against this background, the emergence of an authoritarian form of rule needs to be explained from within a relationship of delegation, more precisely, a reversal in the relationship of power between the delegator and the delegate. Most interestingly, however, the reversal is always and already built into the relationship. This can be seen, at least, if one recognizes that delegation is not only a legal relationship, but also encompassed by a broader relationship of trust. Authoritarian rule emerges, dialectically, from trust. The article tries to show that the origin of authoritarian rule lies partly in the modal indifference of trust—which explains the reluctance of Courts to “bite” when they are confronted with potential ultra vires—and partly in what can be called the trust trap. Then the article suggests that authoritari- an liberalism is an expression of the administrative face of the cosmopolitan constitutions of the Member States. Finally, it concludes by speculating that the only antidote to the consolidation of authoritarian liberalism in Europe might be national governments joining their people in their pro- test. Admittedly, the Euro Zone seems to be “saved” for now. But the rescue does not produce output legitimacy across the European Union. While Germans, Austrians and Dutch may be quite content the Greeks or Spaniards are paying a heavy prize for it. We can advance towards a re- form of monetary union only through sustained democratic opposition. IV. Reversing the cycle of power Any suggestion that Heller’s polemical intervention can be developed into a concept that sheds light on our current situation needs to address a significant difference. In contrast to the 1930s, parliaments stay in place or at least not repeatedly sent home and re-elected. What happens, instead, is that national representative institutions find themselves in a position disturbingly similar to outright receivership.60 This can be observed for Member States benefiting from Euro- pean bailouts. But even aside from this special constellation, representative institutions do defi- nitely not expand their authority at a rate that would allow them to keep up with the growing powers of supranational executive institutions. This is true, in particular, of the European Parlia- ment.61 The overall situation therefore roughly matches what Colin Crouch so famously and con- troversially described as “Post-Democracy.” Core democratic institutions, such as parliaments or recurring elections, stay formally in place while the substance of political decision-making is no 59 At has done so at least since Solange I. See Internationale HandelsGesellschaft mBH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Solange I) [1974], 2 Common Market Law Reports 540. For a historical account, see BILL DAVIES, RESISTING THE EUROPEAN COURT OF JUSTICE: WEST GERMANY’S CONFRONTATION WITH EUROPEAN LAW, 1949–1979, 78–88 (Cambridge University Press, 2012). 60 For a highly perceptive case study concerning Greece, see Tsoukala, note 42 at 266. 61 See, with regard to the European Parliament, the very apt observations by Agustin Menendez, Editorial: A Europe- an Union in Constitutional Mutation?, 20 EUROPEAN LAW JOURNAL, 2014, at 138.