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.

Speaker

Floris de Witte is Associate Professor at LSE Law School. His research focuses on the interaction between EU law and politics, as well as on EU legal geography. Floris sits on the board of editors of the European Law Journal and the German Law Journal.