Nicole Scicluna & Stefan Auer – Europe’s Constitutional Unsettlement: Testing the Political Limits of Legal Integration

Abstract

Law is central to what the European Union is and how it works, but the mismatch between the legal and political Eurodimensions of European integration is undermining the EU from within and limiting its ability to project its power beyond its borders. This article aims to explicate the clash between Europe as a community of law, on the one hand, and Europe as a political project, on the other, by focusing on two crises. The first is the crisis that has arisen in relation to Poland’s backsliding when it comes to democracy and the rule of law. The second crisis is the Russian invasion of Ukraine. The two crises are interlinked. An effective response to Russian aggression requires of the EU the kind of solidarity, confidence and unity of purpose that has been undercut by Poland’s rule-of-law crisis and by the inadequacy of European responses to it. Thus, both crises unsettle the EU’s constitutional settlement, revealing the political limits of legal integration. We find that, if Europe’s leaders are to better align the EU’s legal order with its political goals and capacity to act, then they will need to acknowledge, and work within, the constraints the EU faces as a union of nation states.