The Unconfined Power of European Union Law

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Table of Contents: I. Introduction. – II. The three puzzles of EU contestation. – III. The three dimensions of EU legal power. – III.1. EU law’s excessive responsibilisation of its subjects. – III.2. The obscure and destabilising features of what the European Union does. – III.3. EU law’s alienating depiction of life. – IV. Unconfined EU legal power? – IV.1. The confines of the Treaties. – IV.2. The casual disregard for EU legal power by the Court of Justice. – IV.3. The impoverished vocabulary of national constitutional courts. – V. The incidence, dynamics and significance of EU legal conflicts. – V.1. The incidence of conflicts: expert and non expert worlds. – V.2. The dynamics of contestation: the dislocation of the familiar and authoritarian overreach. – VI. Conclusion.

Abstract: Certain features condition when most EU law comes into being. EU laws must compete with other laws for authority. They form part of legal regimes which are partial in scope and can cut across national legal regimes. They justify themselves by reference to a vision of political community which values what individuals do together more than simply their living together. These features act as a source of conflict in two ways. They, first, endow EU law with certain qualities which act as a source of stress. These include over-responsibilisation, destabilisation and functionalism. Secondly, the concern to secure authority by legislating better to realise certain shared activities leads to expertise heavily influencing both the content and incidence of EU law and to a disregard of those activities which link daily life experiences to wider processes of identity formation. The failure to address these features is central to the malaise and antipathy currently confronting the European Union.

Keywords: power of EU law – conflicts and EU law – public opinion – culture and EU law – expertise and EU law – solidarity.

European Papers, Vol. 1, 2016, No 2, pp. 405-437
2499-8249 - doi: 10.15166/2499-8249/55

* Professor of European Union Law, National University of Singapore and London School of Economics and Political Science,,



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