No enforcement without representation: how participatory democracy can strengthen the Digital Markets Act

ABSTRACT

While its relationship with competition law remains under debate, the Digital Markets Act (DMA) concerns fundamental rights, public values, and the control of power in digital markets. In limiting the scope of the freedom to conduct a business, the DMA seeks to safeguard conflicting and colliding fundamental rights and public interests. For the DMA to gain recognition as a legitimate and future-proof governance framework for digital markets, it must be based on participatory democracy. Meaningful participation in procedures that could impact one’s position is a fundamental element of a democratic legal system governed by the rule of law. Although the DMA permits some form of dialogue, participatory democracy is constrained in scope, a bilateral logic rather than a multi-stakeholder approach is employed, and much is left to the discretion of the enforcer. Using a law-oriented and constitutional approach, we elaborate on how participatory democracy, engagement, and deliberation can be enhanced.

KEYWORDS:

• Digital Markets Act
• Constitution
• legitimacy
• democracy
• participation

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU)2020/1828, OJL 265, 12 October 2022 (Digital Markets Act).

2 Anne Witt, ‘The Digital Markets Act – Regulating the Wild West’ (2023) SSRN Electronic Journal <https://doi.org/10.2139/ssrn.4395089>.

3 Jan Blockx, ‘The Digital Markets Act: Fostering Innovation “Made in Europe”?’ (2023) SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.4487366>.

4 Rec. 107, Digital Markets Act.

5 Mark Leiser, ‘Analysing the European Union’s Digital Services Act Provisions for the Curtailment of Fake News, Disinformation, & Online Manipulation’ (2023) SSRN Electronic Journal 4 <https://doi.org/10.2139/ssrn.4427493>.

6 Anne Witt, ‘The Digital Markets Act – Regulating the Wild West’ (2023) SSRN Electronic Journal 11 <https://doi.org/10.2139/ssrn.4395089>.

7 For the definitions of gatekeeper and core platform service, see Article 2(1) and (2) as well as Article 3 of the DMA. The first designation decisions were adopted in September 2023, with reference to 22 core platform services. The designated gatekeepers will need to comply with the DMA by 7 March 2024.

8 Rec. 65, Digital Markets Act.

9 For a critical view on the need for transparency on the “driver” of digital markets regulations, see Maureen K Ohlhausen and John M Taladay, ‘Are Competition Officials Abandoning Competition Principles’ (2022) 13(7) Journal of European Competition Law & Practice 463–72 <https://doi.org/10.1093/jeclap/lpac033>.

10 This does not neglect the fact that EU antitrust law is also open to fundamental rights considerations – see, eg Johannes Persch, ‘The role of fundamental rights in antitrust law – a special responsibility for undertakings with regulatory power under Art. 102 TFEU?’ (2021) 17(3) European Competition Journal 542–66 <https://doi.org/10.1080/17441056.2021.1921514>.

11 Olivier Guersent, ‘Opening speech delivered at the VI Lisbon Conference’ (2023) 8 November 2023 <https://competition-policy.ec.europa.eu/system/files/2023-11/20231108_VI-Lisbon-Conference_Olivier-Guersent_speech.pdf>.

12 Rec. 10, 11 and Article 1, Digital Markets Act.

13 On the “generalised realisation that market forces are not going to correct by themselves” – Filomena Chirico, ‘Digital Markets Act: A Regulatory Perspective’ (2021) 12(7) Journal of European Competition Law & Practice 493–99 <https://doi.org/10.1093/jeclap/lpab058>. With reference also to the economic constraints and shortcomings of competition law, Jan Blockx, ‘The Expected Impact of the DMA on the Antitrust Enforcement of Unilateral Practices’ (2023) 14(6) Journal of European Competition Law & Practice 325–33 <https://doi.org/10.1093/jeclap/lpad028>, and Pablo Ibáñez Colomo, ‘The Draft Digital Markets Act: A Legal and Institutional Analysis’ (2021) 12(7) Journal of European Competition Law & Practice 561–75 <https://doi.org/10.1093/jeclap/lpab065>. As regards remedies in particular, see Tone Knapstad, ‘Breakups of Digital Gatekeepers under the Digital Markets Act: Three Strikes and You’re out?’ (2023) Journal of European Competition Law & Practice lpad035 <https://doi.org/10.1093/jeclap/lpad035>.

14 This often leads to “dilemmas”. For an example on privacy – see Christophe Carugati, ‘The Antitrust Privacy Dilemma’ (2023) 19(2) European Competition Journal 167–90 <https://doi.org/10.1080/17441056.2023.2169310>.

15 Such as very strong network effects, multisidedness and the ability to connect many business users with many end users, a significant degree of dependence of both business users and end users, lock-in effects and lack of multi-homing, vertical integration, and data driven-advantages – Rec. 5, 13, 25, 32, 64, Digital Markets Act.

16 See, eg Marco Botta, ‘Sector Regulation of Digital Platforms in Europe: Uno, Nessuno e Centomila’ (2021) 12(7) Journal of European Competition Law & Practice 500–12 <https://doi.org/10.1093/jeclap/lpab046>.

17 Rec. 5, Digital Markets Act. On how to ensure effective antitrust enforcement in digital platforms markets – see, eg Damien Geradin and Dimitrios Katsifis, ‘Strengthening Effective Antitrust Enforcement in Digital Platform Markets’ (2022) 18(2) European Competition Journal 356–405 <https://doi.org/10.1080/17441056.2021.2002589>.

18 Proposing to link DMA obligations with traditional competition concerns (exclusion or exploiting) – see Natalia Moreno Belloso and Nicolas Petit, ‘The EU Digital Markets Act (DMA): A Competition Hand in a Regulatory Glove’ (2023) European Law Review 391 and SSRN Electronic Journal <https://ssrn.com/abstract=4411743>.

19 This is a Regulation resulting from the Digital Services Package, which also includes Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC, OJL 277, 27 October 2022 (Digital Services Act). It is also possible to refer to a ‘Digital Regulation’ package – see Peter Georg Picht, ‘Caught in the Acts: Framing Mandatory Data Access Transactions under the Data Act, Further EU Digital Regulation Acts, and Competition Law’ (2023) 14(2) Journal of European Competition Law & Practice 67–82 <https://doi.org/10.1093/jeclap/lpac059>.

20 As regards the qualification of prospective and guarantee Constitution, see, eg Jorge Miranda, ‘A originalidade e as principais características da Constituição portuguesa’ (2007) 16 Cuestiones constitucionales 253–80 <http://www.scielo.org.mx/scielo.php?script=sci_arttext&pid=S1405-91932007000100008&lng=es&tlng=pt>.

21 For instance, as regards self-preferencing, see Christophe Samuel Hutchinson and Diana Treščáková, ‘Tackling Gatekeepers’ Self-preferencing Practices’ (2022) 18(3) European Competition Journal 567–90 <https://doi.org/10.1080/17441056.2022.2034332>, and Martin Peitz, ‘How to Apply the Self-Preferencing Prohibition in the DMA’ (2023) 14(5) Journal of European Competition Law & Practice 310–15 <https://doi.org/10.1093/jeclap/lpad029>.

22 Francis Cheneval and Frank Schimmelfennig, ‘The Case for Demoicracy in the European Union’ (2013) 51(2) Journal of Common Market Studies 334–50 <https://doi.org/10.1111/j.1468-5965.2012.02262.x>.

23 Paolo Chiocchetti, ‘Democratic Legitimacy’ (2017) RESuME <https://doi.org/10.25517/RESuME-7xN4KF9-2017>. See, also, Paul Stephenson, ‘Exploring the Throughput Legitimacy of European Union Policy Evaluation: Challenges to Transparency and Inclusiveness in the European Commission’s Consultation Procedures and the Implications for Risk Regulation’ (2023) 14(2) European Journal of Risk Regulation 351–70 <https://doi.org/10.1017/err.2023.33>.

24 Karl Loewenstein, ‘Constitutions and Constitutional Law in the West and in the East’ (1969) 30(3) The Indian Journal of Political Science 203–48 208 <www.jstor.org/stable/41854334>.

25 Important as regards the adoption of delegated and implementing acts.

26 On these classifications, Karl Loewenstein, ‘Constitutions and Constitutional Law in the West and in the East’ (1969) 30(3) The Indian Journal of Political Science 203–48 213. <http://www.jstor.org/stable/41854334>.

27 For a taxonomy of Opportunity Structures for Citizens’ Participation (OSCP’s) – see Michael Nentwich, ‘Opportunity Structures for Citizens' Participation: The Case of the European Union’ (1996) 0(1) European Integration online Papers (EIoP) <http://eiop.or.at/eiop/texte/1996-001.htm>.

28 Rec. 10, Digital Markets Act.

29 The complexity stems primarily from the need to interact with both (EU and national) competition law and other legal instruments regulating platform behaviour. See, among others, Belle Beems, ‘The DMA in the Broader Regulatory Landscape of the EU: An Institutional Perspective’ (2023) 19(1) European Competition Journal 1–29 <https://doi.org/10.1080/17441056.2022.2129766>; Cani Fernández, ‘A New Kid on the Block: How Will Competition Law Get along with the DMA?’ (2021) 12(4) Journal of European Competition Law & Practice 271–72 <https://doi.org/10.1093/jeclap/lpab020; Jasper van den Boom, ‘What does the Digital Markets Act harmonize? – Exploring Interactions between the DMA and National Competition Laws’ (2023) 19(1) European Competition Journal 57–85 <https://doi.org/10.1080/17441056.2022.2156728>; Jörg Hoffmann and others, ‘Gatekeeper’s Potential Privilege – the Need to Limit DMA Centralisation’ (2023) Max Planck Institute for Innovation & Competition Research Paper No. 23–01 and SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.4316836>; and Konstantina Bania, ‘Fitting the Digital Markets Act in the Existing Legal Framework: The Myth of the “Without Prejudice” Clause’ (2023) 19(1) European Competition Journal 116–49 <http://dx.doi.org/10.1080/17441056.2022.2156730>.

30 See, eg Rec. 4, 5, 10, 11, 78 and 91, and Articles 1(6), 14, 38, 40(2)(c), Digital Markets Act.

31 For a table of correspondences, Alexandre de Streel and others, ‘Enforcing the Digital Markets Act: Institutional Choices, Compliance, and Antitrust’ (2022) SSRN Electronic Journal 13 et seq <https://doi.org/10.2139/ssrn.4314848>. The Authors consider it possible to extract advantages from the DMA’s approval, with regard to its preferential application and the application of commitments close to its obligations.

32 Cristina Caffarra and Fiona Scott Morton (2021) The European Commission Digital Markets Act: A translation <https://cepr.org/voxeu/columns/european-commission-digital-markets-act-translation>.

33 Rec. 69, 77, 79, 80, 97, Digital Markets Act.

34 Article 19(1), Digital Markets Act.

35 On the contrary, it has important consequences, for instance as regards the respect for the ne bis in idem, proportionality and legal certainty principles. In the light of the bpost and Nordzucker judgments – see, eg Marco Cappai and Giuseppe Colangelo, ‘Applying ne bis in idem in the Aftermath of bpost and Nordzucker: The Case of EU Competition Policy in Digital Markets’ (2023) SSRN Electronic Journal 1–20 <https://doi.org/10.2139/ssrn.4344075>. Also, Alba Ribera Martínez, ‘An Inverse Analysis of the Digital Markets Act: Applying the Ne bis in idem Principle to Enforcement’ (2023) 19(1) European Competition Journal 86–115 <https://doi.org/10.1080/17441056.2022.2156729>.

36 Rec. 27, 28, 29, 65, 66, 67, 75, 86, 107 and, in particular 109, Digital Markets Act.

37 Pierre Larouche and Alexandre de Streel, ‘The European Digital Markets Act: A Revolution Grounded on Traditions’ (2021) 12(7) Journal of European Competition Law & Practice 542–560 <https://doi.org/10.1093/jeclap/lpab066>. Also on the fundamental transformation of European competition policy, see Pablo Ibáñez Colomo, ‘New Times for Competition Policy in Europe: the Challenge of Digital Markets’ (2021) 12(7) Journal of European Competition Law & Practice 491–92 <https://doi.org/10.1093/jeclap/lpab067>, and Friso Bostoen, ‘Understanding the Digital Markets Act’ (2023) 68(2) Antitrust Bulletin 2023 263–306, Tilburg Law School Research Paper and SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.4440819>.

38 Bruce Ackerman, We the People: Transformations Vol 2 (Harvard University Press 1998).

39 See, eg Mihnea Simion Stoica, ‘Participatory Democracy As the Ideal Context for Social Innovation. Evidence from the European Union’ (2023) 14(1) Postmodern Openings 16–25 <https://doi.org/10.18662/po/14.1/601>.

40 For the rights of private parties in the context of private enforcement, see Rupprecht Podszun, ‘Private Enforcement and Gatekeeper Regulation: Strengthening the Rights of Private Parties in the Digital Markets Act’ (2022) 13(4) Journal of European Competition Law & Practice 254–67 <https://doi.org/10.1093/jeclap/lpab076>.

41 Considering that the DMA has certain downsides in terms of procedural issues – Fernando Diez, ‘The DMA: A New Regulation for – or Against – Digital Markets in the EU?’ (2023) SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.4321589>.

42 Oriane Calligaro and others, ‘Values in the EU Policies and Discourse. A First Assessment’ (2016) 3(3) Les Cahiers du Cevipol 5–52 <https://www.cairn.info/revue-les-cahiers-du-cevipol-2016-3-page-5.htm>.

43 On how procedural changes in the constitution-making process could help to address the Union’s democratic deficit, see, eg John Erik Fossum and Agustín José Menéndez, ‘The Constitution’s Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union’ (2005) 11(4) European Law Journal 380–440 <https://doi.org/10.1111/j.1468-0386.2005.00267.x>. As regards deliberative democracy in particular, Jens Steffek, ‘Civil Society Participation and Deliberative Democracy in the European Union’ (2014) E-International Relations <https://www.e-ir.info/2014/03/21/civil-society-participation-and-deliberative-democracy-in-the-european-union/>.

44 On the flaws of the European Commission’s attempts to promote direct citizen involvement in EU affairs, in particular regarding the trade-off between demanding and egalitarian participation, the lack of active participation and the lack of symbolic accountability of the Commission for the contributions made by ordinary citizens – Thorsten Hüller, ‘Playground or Democratisation? New Participatory Procedures at the European Commission’ (2011) 16(1) Swiss Political Science Review 77–107 <https://doi.org/10.1002/j.1662-6370.2010.tb00153.x>.

45 Rec. 77, Digital Markets Act.

46 For a critic position on “a scattered list of binding provisions and obligations not properly tailored to the varying types of digital platforms and business models” – see Carmelo Cennamo and others, ‘Digital Platforms Regulation: An Innovation-Centric View of the EU’s Digital Markets Act’ (2023) 14(1) Journal of European Competition Law & Practice 44–51 <https://doi.org/10.1093/jeclap/lpac043>. For a comparison of the EU, UK and US approaches, see Thomas Tombal, ‘Ensuring Contestability and Fairness in Digital Markets through Regulation: A Comparative Analysis of the EU, UK and US Approaches’ (2022) 18(3) European Competition Journal 468–500 <https://doi.org/10.1080/17441056.2022.2034331>.

47 Maurits Dolmans and others, ‘Rigid Justice is Injustice: The EU’s Digital Markets Act Should Include An Express Proportionality Safeguard’ (2022) Ondernemingsrecht issue 2–2022 and SSRN Electronic Journal <https://ssrn.com/abstract=3985562>.

48 Rec. 65, Digital Markets Act.

49 Article 46(1)(b), Digital Markets Act. An implementing act of this nature shall be adopted in accordance with the advisory procedure referred to in Article 50(2), that is according to Article 4 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJL 55, 28 February 2011.

50 Article 46(2), Digital Markets Act.

51 Articles 12, 19 and 49, Digital Markets Act. As regards Article 19 in particular, it allows the Commission to conduct a market investigation for the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services laid down in Article 2, point (2) or for the purpose of detecting practices that limit the contestability of core platform services or that are unfair and which are not effectively addressed by the DMA.

52 Article 12(2)(c) and (4), Digital Markets Act.

53 Except in cases where there is a need for urgent action or where the feedback would bring little added value. See European Commission, ‘Better Regulation Guidelines’ (2021) Brussels, SWD(2021) 305 final, 3 November 2021, URL: https://commission.europa.eu/system/files/2021-11/swd2021_305_en.pdf and European Commission, ‘Better Regulation’ toolbox (2023) <https://commission.europa.eu/system/files/2023-09/BR%20toolbox%20-%20Jul%202023%20-%20FINAL.pdf>. Also, Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions Better Regulation: Joining forces to make better laws, <https://commission.europa.eu/system/files/2021-04/better_regulation_joining_forces_to_make_better_laws_en_0.pdf>.

54 Beate Kohler-Koch and Barbara Finke, ‘The Institutional Shaping of EU–Society Relations: A Contribution to Democracy via Participation?’ (2007) 3(3) Journal of Civil Society 205–21 206 <http://dx.doi.org/10.1080/17448680701775630>.

55 In particular, workshops were organised covering the DMA’s ban on self-preferencing (5 December 2022) <https://digital-markets-act.ec.europa.eu/events/dma-workshop-applying-dmas-ban-self-preferencing-how-do-it-practice-2022-12-05_en>; interoperability between messaging services (27 February 2023) <https://digital-markets-act.ec.europa.eu/events/dma-workshop-dma-and-interoperability-between-messaging-services-2023-02-27_en>; app store related provisions (6 March 2023) <https://digital-markets-act.ec.europa.eu/events/dma-and-app-store-related-provisions-2023-03-06_en>, and data-related obligations (5 May 2023) <https://digital-markets-act.ec.europa.eu/events/dma-and-data-related-obligations-2023-05-05_en>.

56 Commission Implementing Regulation (EU) 2023/814 of 14 April 2023 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council, C/2023/2530, OJL 102, 17 April 2023.

57 Article 1, DMA’s first implementing Regulation. This concerns rules on the format and maximum length of documents (Annex II of the Implementing Regulation), the use of languages and the procedure for transmitting and receiving documents.

58 Annex I, DMA’s first implementing Regulation.

59 Available here: <https://digital-markets-act.ec.europa.eu/system/files/2023-09/power_of_attorney_template.pdf>.

60 This template specifies the minimum information that gatekeepers should provide in the Compliance Report <https://digital-markets-act.ec.europa.eu/system/files/2023-10/Article%2011%20DMA%20-%20Compliance%20Report%20Template%20Form.pdf>.

61 This template contains the minimum information that gatekeepers are required to provide when submitting information to the Commission <https://digital-markets-act.ec.europa.eu/system/files/2023-07/Article%2014%20DMA%20Template%20%28information%20on%20transactions%29%20-%2013-07-2023.pdf>.

62 This template specifies the information required by the Commission to assess a request to engage in the procedure <https://digital-markets-act.ec.europa.eu/system/files/2023-10/Article%208%283%29%20DMA%20Template%20%28request%20for%20specification%20dialogue%29_1.pdf>.

63 This template sets out the information required by the Commission to assess a reasoned request submitted by a gatekeeper under Article 9 of the DMA <https://digital-markets-act.ec.europa.eu/system/files/2023-10/Article%209%20DMA%20Template%20%28suspension%20request%29.pdf>.

64 This template sets out the information required by the Commission to assess a reasoned request submitted by a gatekeeper under Article 10 of the DMA <https://digital-markets-act.ec.europa.eu/system/files/2023-10/Article%2010%20DMA%20Template%20%28exemption%20request%29.pdf>.

65 On the particular uncertainty regarding the concept of “good administration”, see, eg Joana Mendes, ‘Good Administration in EU Law and the European Code of Good Administrative Behaviour’ (2010) EUI Working Papers Law No. 2009/09 and SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.1554907>.

66 Rec. 65, 88 and Article 8(3), Digital Markets Act.

67 According to some authors, government-like conditions are needed for civil society participation to be successful – Eva G Heidbreder, ‘Governance in the European Union: A Policy Analysis of the Attempts to Raise Legitimacy through Civil Society Participation’ (2015) 17(4) Journal of Comparative Policy Analysis: Research and Practice 359–77 <https://doi.org/10.1080/13876988.2014.921056>.

68 Lotte Drieghe and others, ‘Participation of Civil Society in EU Trade Policy Making: How Inclusive is Inclusion?’ (2022) 27(4) New Political Economy 581–96 <https://doi.org/10.1080/13563467.2021.1879763>.

69 As regards the advantages of “participative antitrust” in terms of legal certainty – see, Jean Tirole, Economics for the Common Good (2019). Also, Christophe Carugati, ‘Policy Brief: A Model for a Participative Approach to Digital Competition Regulation’ (2023) <https://www.bruegel.org/policy-brief/model-participative-approach-digital-competition-regulation>, and Vikas Kathuria, ‘The Rise of Participative Regulation in Digital Markets’ (2022) 13(8) Journal of European Competition Law & Practice 537–48 <https://doi.org/10.1093/jeclap/lpac046>.

70 On the benefits of representative public deliberation as a “regular part of democratic governance” – see OECD, ‘Public Governance Policy Paper Eight Ways to Institutionalise Deliberative Democracy’ (2021) <https://www.oecd.org/gov/open-government/eight-ways-to-institutionalise-deliberative-democracy.htm>.

71 Articles 47 and 48, Digital Markets Act.

72 This does not negate the fact that there will be issues specifically focused on gatekeepers regarding, for instance, the terms and conditions of their intervention as participants, the protection of business secrets and other confidential information, liability for DMA infringements, and damages inflicted on third parties due to experimentation.

73 According to the Court of Justice of the European Union, “while measures designed to produce external effects, such as guidelines directed at economic operators, cannot be regarded as rules of law which the administration is required in all cases to comply with, they nevertheless lay down rules of conduct indicating the approach to be adopted from which the administration cannot depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment. By adopting such rules and announcing by publishing them that it will apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules, without being found, in some circumstances, in breach of general principles of law, such as the principles of equal treatment or of the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects” – see, eg. Case C-439/11 P Ziegler SA v European Commission [2013] ECLI:EU:C:2013:513, para 60. See also Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paras 209 to 211.

74 On deliberation as a form of participation available to policymakers and legislators seeking to hear the voices of citizens and as a way of giving agency to otherwise unheard voices – see Council of Europe – European Committee on Democracy and Governance (CDDG), ‘Report on Deliberative Democracy’ (2023) <https://rm.coe.int/report-on-deliberative-democracy-eng/1680aaf76f>.

75 On inclusive dialogue and people as “constitutional actors” – see, eg C Ignacio Giuffré, ‘Pushing the Boundaries of Deliberative Constitutionalism - From Judicial Dialogue to Inclusive Dialogue’ (2023) 50 (Open issue) Varia Revus: Journal for Constitutional Theory and Philosophy of Law / Revija za ustavno teorijo infilozofijo prava <https://doi.org/10.4000/revus.9695>.

76 For a detailed overview of these conditions, see, eg Jane Suiter and Min Reuchamps, ‘A Constitutional Turn for Deliberative Democracy in Europe?’ in Min Reuchamps and Jane Suiter (eds), Constitutional Deliberative Democracy in Europe (ECPR Press 2016) and Brigitte Geissel and Sergiu Gherghina, ‘Constitutional Deliberative Democracy and Democratic Innovations’ in Min Reuchamps and Jane Suiter (eds), Constitutional Deliberative Democracy in Europe (ECPR Press 2016).

77 Referring to pressure from governments as one of the causes of deliberate under-enforcement of the law – see R. Daniel Kelemen and Tommaso Pavone, ‘Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union’ (2022) SSRN Electronic Journal <http://dx.doi.org/10.2139/ssrn.3994918>.