Challenging EU Legality

This introduction explores what we mean when we talk about contemporary challenges to EU legality. Broadly, these involve actions or activities that cast doubt on the premises, principles, and norms that underpin the EU’s legal order as shaped by the Treaties and the judgments of the European Court. The chapter provides an initial taxonomy based on examples from the sovereign debt crisis and considers how the other contributions in the volume adjust or amplify that taxonomy. It shows that by looking at both ‘standard legality’ and legality exceptionalism in relation to EU legality, we can shed light both on the nature of the EU as a political organization and more specifically on the nature and role of law within it.

Disintegration through Law

The existence of an unconditional right of withdrawal is antithetical to the idea of European integration, which is predicated on an ‘ever closer union’, and the expectation that Union rights become part of the ‘legal heritage’ of individuals. Article 50 TEU fails to take proper account of the Union’s interests, or those of Member States, individuals, and companies, and undermines the stability of treaties which international law seeks to preserve. Article 50 should be amended at the first opportunity. Leaving the jurisdiction of the Court of Justice was identified by the UK government as one of its Brexit objectives. The Court was nonetheless called upon to clarify a number of matters Article 50 left open, notably the right to revoke a withdrawal notification. While the 2020 Withdrawal Agreement preserves the Court’s material jurisdiction to interpret provisions of Union law incorporated into the Agreement, including in the context of dispute settlement procedure, individual access to the Court will be limited after the transition period.

Accession to International Instruments as an EU Legality Constraint

When the EU becomes a party to an international legal instrument, whether bilateral or multilateral, that international agreement is incorporated automatically in the EU legal order and becomes a legality constraint within that legal order, due to the recognition, by EU law itself, of the precedence of those international commitments over secondary EU law. In the multilevel European legal space, agreements concluded by the EU also become a legality constraint for the Member States of the EU, even if they are not parties to the international instrument themselves. Ensuring compliance with the EU’s international obligations sets in motion the adoption of internal legislation to implement those international obligations or to repeal existing EU law measures that are inconsistent with them; and the Court of Justice of the European Union can review the compliance of EU secondary law (and Member State law) with the EU’s international agreements. However, the Court has self-limited this review power through the development of a doctrine on the limited direct effect of international agreements.

Legality in EU Common Foreign and Security Policy

The Common Foreign and Security Policy (CFSP) of the EU finds itself between exceptionalism and normalization. Because of its special position and because the legislative procedure is not applicable to this policy area, questions of legality are not usually raised in the context of CFSP. At the same time, CFSP has become a policy area to which most EU rules and principles simply apply. This chapter assesses questions of (the review of) legality in the context of CFSP. As questions of legality make sense only in the context of legal acts, this chapter will first revisit the nature of CFSP acts as well as their consequences in the light of the ‘normalization’ of CFSP. Second, questions of legality will be assessed in relation to the legal basis of CFSP acts, and in particular, the choice of legal basis and the possibility of combining CFSP and other legal bases to enhance options for legality review.

The Theoretical Foundations of EU Law

This chapter investigates the contribution of legal theory in understanding the distinctiveness of law’s role in the EU. It does so by evaluating which theoretical approach, or approaches, generate the best conception of law’s place in a wider political vision of supranational community. Key candidate conceptions are positivism, culturalism, idealism, and pragmatism. For positivism, the focus is on ‘the authorized law’; for culturalism, ‘the appropriate law’; for idealism, ‘the good law’, and for pragmatism, ‘the law that works’. Whereas EU law lacks the direct democratic resources, the common cultural identity, and the plausible claim to universalism to support robust versions of positivism, culturalism, and idealism, its investment in the security and versatility of law in providing positive-sum policy outputs has instead supported a primarily pragmatic vision of law’s legitimacy. The chapter concludes by examining the fragility of excessive dependence on pragmatism in an environment where various crises increasingly undermine even modest levels of secondary reliance on positivist, culturalist, and idealist justifications, and by addressing the possibilities inherent in an alternative proceduralist model of EU law.

Challenges to EU Legality in the Field of Asylum and Migration Law

‘EU legality’ in EU migration and asylum laws can be considered as a double-edged sword. This chapter describes how, on the one hand, the CJEU, by the mere application of general principles of EU law, offered in its case-law important criteria strengthening the rights and legal protection of third-country nationals while, on the other hand, more recent developments show that the EU legislator, but also the CJEU, almost artificially excludes migration laws or decisions from the legal framework of the EU. It will be argued that developments of ‘re-nationalization’, the application of mutual trust, and the externalization of EU asylum and migration policies, challenge the applicability of general principles of EU legality, including the protection of fundamental rights and the right to effective judicial protection.