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In this final chapter, we revisit some of the central tensions that run through the whole book and ask ourselves the question: what is the future of the EU? And what is the role of law and politics in its governance? We will start by examining the main routes by which reform of the EU order occurs, beginning with formal Treaty change before discussing 'integration through stealth' and 'dis-integration'. In the remainder of the chapter, will discuss four key choices facing the EU in the near future: substantive choices (over which policies to prioritise), political choices (over how to respond to populism and contestation), constitutional choices (about how autonomous the legal order should be) and global choices (regarding how Europe should define itself in the wider world). The concluding chapter is meant to guide an advanced discussion on what the EU can and should like in the medium-term future.
The chapter begins by examining why the EU regulates, beginning with how the EU attempts to justify its regulatory power before exploring the main principles underlying EU regulation. We will then focus on who regulates in the EU, that is, the institutions, such as agencies and committees, that assist the EU in achieving its regulatory goals. The remaining sections will focus on the questions of how the EU regulates, distinguishing between the main legal and non-legal tools by which the EU regulates, and the judicial routes available to enforce or challenge the validity of such regulatory choices. Throughout, the focus will lie on the tension between efficiency and diversity that drives EU regulatory choices.
This chapter explores whether we can (and should) think of the EU as a unitary system or as one that allows for internal differentiation and layering, both in terms of the horizontal relationship between the EU Member States and the one between the EU and non-EU states. The chapter highlights the legal methods of differentiation, such as enhanced cooperation and opt-in and outs, and analyses the limits and pathologies of differentiating EU obligations. It also looks at the different models of differentiation that are available, beginning with the process of joining and leaving the EU, before moving on to think about the interaction between the EU and the EEA, the United Kingdom and the role of Free Trade Agreements. As we will see, the question of which model of cooperation to choose, or of how differentiated the EU should be, once again poses fundamental trade-offs between sovereignty and unity that ultimately depend on how we understand the EU’s purpose.
This chapter sets out to analyse to what extent the role of the individual citizen in Europe, and the rights attached to that status, inform us about the nature of the EU. What does it mean, legally speaking, for someone to be an EU citizen? This chapter distinguishes between different types of citizenship. First, we can trace the emergence of an incipient form of supranational or federal citizenship. Second, we analyse the much more significant transnational citizenship that has been formed. This form of citizenship becomes stronger where the mobile European is economically active, and weaker where the mobile European is economically inactive. The reason for this fragmentation is simple: it aims to protect the national welfare systems. Third, we will look at the legal position of those individuals who find themselves on the EU’s territory without being European citizens, such as British nationals, refugees or third-country national spouses of EU citizens.
To understand ‘Europe as a bureaucracy’, this chapter lays down a central principle underlying the EU’s bureaucracy – the notion of ‘institutional balance’. What is the EU’s institutional structure trying to balance? Answering this question is important to understanding how different institutions in the EU inter-relate. It also outlines the composition and powers of the main EU institutions and examines how these institutions produce law, examining the EU’s central decision-making process. As we will see, the practice of EU decision-making is often untransparent and complex. Yet these very features are difficult to avoid given the need to balance the different interests that have to be brought on board for EU policy to be both effective and legitimate. The EU’s bureaucracy creates inevitable trade-offs, the resolution of which depend on one’s normative view of what Europe is for.
We can distinguish at least three different ‘ways of thinking’ about democracy in the EU. In the first camp we find the statists, who argue that the EU exercises real power in highly salient policy domains and should be held to the same democratic standards as the nation state. The second camp is composed by those arguing that the EU should be thought of as a demoicracy. This is a variation on the statist account of democracy, seeing the EU as an institution that consists of Member States with common objectives but separate interests. Its institutional configuration should reflect this. The third camp is one that centres on consociational democracy. This model focuses on forging consensus between different interest groups in society rather than seeking to structure politics (at whichever level) to forge majoritarian rule. As we will see in this chapter, the question whether the EU is, or can be, a true political union, can be answered (equally convincingly) in many different ways.
It is an understatement to say that law is important in the process of European integration. Understanding the EU without understanding the particular (and peculiar) role that law has assumed in the first decades of European integration is impossible. By making it legally impossible for Member States to resist the application of both specific norms of EU law and the general objectives of European integration, EU law gets European integration ‘done’. The CJEU’s understanding of the EU legal order as something that is hierarchically superior and autonomous from national legal systems, however, irritates national legal systems, which are increasingly articulating limits to the process of ‘integration through law’. This tension has become more pronounced as the EU moves into policy domains that are politically more salient and touch on Member States’ core powersThis indicates a fragility at the core of an EU that is, fundamentally, a legal order.
What is the EU for? In light of the current state of European integration, EU law cannot meaningfully be appreciated without understanding the political, social and cultural context within which it operates. This textbook proposes a fresh, accessible and interdisciplinary take on the subject that is suitable for one-semester and introductory courses wishing to engage the reader with the wider context of the EU project. It situates the institutions, legal order and central policy domains of the EU in their context and offer students the tools to critically analyse and reflect on European integration and its consequences. With pedagogical features such as further reading, class questions and essay/exams questions to support learning, this textbook enables students to form their own informed opinion on whether the EU offers an appropriate answer to the many questions that it is asked.
We will explore the EU’s relationship to values in three main steps. First we look at the content of the values: where do these values come from, which fundamental rights exist, and who do they protect? The chapter also assesses how values inform and influence EU law and governance. What are the main mechanisms by which norms like human rights shape the way EU institutions and policies develop? Finally, we will consider the limits of EU values, both in terms of their application vis-à-vis national understandings of fundamental rights and in vis-à-vis other objectives of the EU, paying particular attention to the rule of law crisis of the 2020s.
The creation of an internal market that transcends all Member States has without doubt been the EU’s priority in the last sixty years. Conceptualising Europe as a market, however, requires a careful appreciation of how its economic objectives and its political objectives intersect. This chapter will focus on exactly this. We analyse what the different available methods of market integration, and their subsequent implications, tell us about the nature of the EU’s market. Which institutions have power, and why? What is the balance between economic interests and other values, and is that balance appropriate? In this chapter, we analyse the many parts to the puzzle that is the internal market. We will then focus on the two main regulatory techniques of the internal market: positive integration, through which the EU re-regulates the European market by the creation of new legislation and negative integration, which takes place where national rules governing the market are declared inapplicable as they impede the functioning of the internal market. Each of these regulatory techniques, as we will see, comes with its own assumptions, problems and implications.
EU law has increasingly become entangled in difficult and sensitive political questions, which means that studying EU law without appreciating the political context within which it operates risks missing the point. The message of this book, then, is that in studying EU law, the law itself matters as much as context; and context also matters as much as law. This first chapter tackles a question that is at the core of this book: what is the EU for? We will look at four theories that have different answers to the question what the ‘point’ of the EU is: intergovernmentalism, neo-functionalism, supranationalism and post-functionalism. These four theories offer heuristic models to think about the nature of the EU and the choices that are implicit in EU law. As we will see, the tensions, problems and questions discussed in this chapter will resurface throughout the book.