Golem Seminar Series – EU law as constitutional balance

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 or the challenges of the complex new policy domains in which the EU acts. It is our contention in this paper, however, that such interpretations risk missing the bigger story of the evolution of EU law. That bigger story is not adequately captured by existing theoretical accounts of EU law and remains invisible when we zoom in too closely on specific cases, legal developments, or policy areas.

This paper argues 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: the EU’s expertise, to bolster the credibility of their cross-border commitments, to tackle collective action problems, and to attain political legitimacy. 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: the EU relies on its Member States to ensure operational capacity, credibility of governance, enforcement of its obligations, and legitimacy. In doing so, the EU would prefer to retain as much control over the Member States as possible. 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: they cannot fully control the other institution without damaging that institutions’ ability to meet the shared objectives; and they cannot maximise the attainment of the objectives without damaging their ability to control the other institution. Too much control, in short, 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. It is through EU law, in other words, that the inherently precarious balance between control and capacity is stabilized.

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.

Speaker: Floris De-Witte

Chair: Mike Wilkinson

This event will be on a first-come, first-serve basis.