The Rising Dominance of EU Law and the Disappearing Competition Between National Legal Orders

The Rising Dominance of EU Law and the Disappearing Competition Between National Legal Orders Presented by: Dr. Sehnálek Date: 21 March 2024 EU - United in Diversity? - Brexit should be perceived as a warning (one of the least integrated MS left the EU) - Current EU is not united nor uniform - legally it is possible to further strengthen & extend EU competences, it is however politically extremely unpopular and potentially dangerous (it is 17 (15) years since the last major reform) - MS are often willing to cooperate but often lack enthusiasm for EU involvement, EU on the contrary has plenty of enthusiasm, enough to spare - “More Europe” is not the solution - Both MS and EU should change their approach: - intergovernmental cooperation, can be a good answer (it should not be understand as return to "pillars", but to a simple international treaty) - EU should adopt more restrictive approach when it comes to its competences MS Perspective: Intergovernmentalism As A Preferred Trend - - Intergovernmentalism is nothing new in European integration: • subsidiary treaties (former Article 293 TEC) • Schengen Agreement Its advantages: • It can be utilized outside the EU's scope of powers, anywhere • It is less formalized - easier to react on new challenges • Solution to the problem of democratic deficit • possibility of reservations, greater individualization (unified in diversity) • Complementary solutions to the EU, if successful, the EU may step in (IPL) • Bicycle theory - even a small step forward is better than nothing EU Perspective: Starting Points - Art. 114 TFEU: „EU shall adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in MS which have as their object the establishment and functioning of the internal market." - C-376/98 - Germany v Parliament and Council: „a measure adopted on the basis of Art. 114 TFEU must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. Although recourse to Article 114 as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them." - Art. 5/3 TEU: „Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States" - Real practice is very different - “unified in diversity” or “unified, no diversity”? Lessons From Biology: Evolution Of (National) Laws - Differences in national legal orders may be perceived as obstacles to trade and integration (negative approach) - These differences however have potential to contribute to the development of national laws (positive approach) - EU law (principle of mutual recognition) allows competition between national laws (presence of variations) - People „vote with their feet" (selection) - national law in order to stay competitive reacts and copies more attractive regulation (inheritance) - State (legal order) is interactor, legal norms and institutes replicators Evolution In Social Sciences - Law As A “Living Creature” - Hodgson & Knudsen - Darwin's conjecture (social sciences) - Less attention in Europe: Zamboni, (Savigny), more in USA • Social theory of legal evolution (Savigny) - • Doctrinal theories of legal evolution • Economic theories of legal evolution • Sociobiological theories of legal evolution Non of these theories can explain the role of EU law as they focus either on (gradual or historical) developments of the law and thus are descriptive (1) or within the law (2) or human factors on development of law (3 and 4) which makes them too general (4) or applicable only to US legal system due to their focus on the role of judiciary (3) - None theory has applied the evolutionary principles on EU or similar organization - Only within the EU evolutionary theory truly makes sense as only there the national legal orders compete (there are no doubts about the process of selection) - If we federalize the EU, we will not lose this unique opportunity for competition between legal orders?