- The European Union has been set up by intergovernmental treaties that balance supranational integration with the protection of national identities and interests. However, the supranational institutions created by the treaties have systematically pushed for continuous integration and centralisation, and they have resorted to competence creep to circumvent treaty limitations. This has upset the balance the states wanted.
- The European Court of Justice (CJEU) plays a particularly important role in this and has a long track record of centralisation bias. It developed a number of judicial doctrines that severely limit the effectiveness of fundamental treaty principles – first and foremost, that of conferral, which is the EU’s most basic building block. In doing so, the Court as well as the European Commission contribute to the declining functionality, acceptance and legitimacy of the EU as a whole, as has become evident especially with Brexit.
- The Council, for its part, has not only been unsuccessful in its attempts to install backstops against competence creep at treaty level but also contributes to it by prioritising political communication over decision. T he steady repetition of the ‘ever-closer union’ phrase has been turned into a judicial dogma by the CJEU, with effects beyond the Council’s aims; and the Council’s more recent tendency to delegate decisions to the Commission instead of negotiating a compromise itself increases the problem of competence creep.
- In the medium term, possible remedies to this situation include limiting supranational competence creep by adding appropriate protocols to the European Treaties, stopping the CJEU from reshaping the treaties by placing its corresponding rulings under the proviso of the Council, and strictly reducing the use of administrative procedures that create ersatz legislation.
- In the long term, treaty reform is unavoidable, its only alternatives being further national ‘exits’ or an overall unravelling of the EU. Such treaty reform has to recalibrate the EU’s multi-level governance system by fundamentally curtailing the supranational institutions’ reach, (re-)placing interstate cooperation at the heart of it, and rebooting the entire EU legal system in the way that France (1804) and Germany (1900) did at their national levels.
Executive Summary: EMPIRE OF LAW: Pushing supranationalism beyond democratic legitimacy
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