EU Law: Balance or Bind? (GOLEM and Transnational Hub Seminar)

In this GOLEM double-bill we have two papers which offer competing interpretations of the current state of play in the EU constitutional debate, and of the past, present and future of EU law in light of the many challenges it faces.

Speakers:

  Guillaume Gregoire (University of Liege)

 Commentator:

 Joana Mendes (Luxembourg)

 Chair:

 Mike Wilkinson (LSE)

Abstracts

 EU Law as Constitutional Balance (Floris de Witte)

Over the past decades, EU law has been increasingly contested, fragmented and displaced as the main form of governance of the integration project. Legal integration is uneven: it has moved forward inexorably in certain fields, while in other domains it has stagnated. This evolution may seem haphazard, or it may seem a consequence of the EU’s many diverse crises. It is our contention in this paper, on the contrary, that EU law should be understood as an instrument through which the constitutional balance of the EU is mediated, contested and stabilized.

The EU is a complex institutional structure in which Member States cede power to the EU because they require certain capacities. But in doing so, Member States would prefer to retain as much control as possible over the EU. The opposite, however, is true as well. This means that both the Member States and the EU are faced with a dilemma. They need to strike a balance between capacity and control: too much control risks bad policy outcomes; whereas too little control risks policy drift.

This dilemma is central to how the EU and its Member States interact. It is also central to explaining the evolution of EU law. EU law is the instrument through which the dilemma is contested or problematized, through which it is mediated and negotiated, and, ultimately, through which the constitutional balance of the EU is secured. This new theoretical framework to think about the authority of EU law can be applied to explain many of the anomalies in EU legal integration. It explains sites and types of legal contestation between the EU and its Member States; it explains the unevenness of EU law, wherein its power is increasing in some domains and dissipating in others; and it offers a framework through which to analyse and compare diverse areas of EU law as well as understand the limits of legal integration.

The EU’s Neoliberal Constitutionalism (Guillaume Gregoire)

Beyond their differences, the various currents of neo-liberalism share a common legal programme: economic constitutionalism. From ordoliberal Ordnungspolitik to New Classical Macroeconomics and  Public Choice School, from Hayek’s ‘constitution of liberty’ to Vanberg’s ‘constitutional political economy’, an institutional agenda has emerged around a number of key tenets: enhancing the competition between jurisdictions through (state and international) federalism; safeguarding the competitive functioning of the market through supra-legislative rules; limiting fiscal policies and disciplining public spending through balanced budget rules; neutralising of monetary policy through independent and price stability-oriented central banks.

These key tenets of neoliberal constitutionalism infuse the three layers of the European Economic Constitution: the fundamental freedoms of movement pave the way to normative competition between national legislations (Microeconomic Constitution); competition law guarantees the competitive structure of the market (Mesoeconomic Constitution); EMU implements the rules of budgetary discipline and monetary stability (Macroeconomic Constitution). This does not imply that the EU is a solely a neoliberal project or that the EU’s current neoliberal path is irreversible. But it does raise questions about the actual room for manoeuvre left by this rigid ‘economic constitution’ to public institutions in dealing with the various current crises.

Please note that this event will be on a first-come, first, served basis.