EU Competences In An Age Of Complexity And Crisis: Challenges And Tensions In The System Of Attributed Powers

Abstract

This article argues that the Union’s experience of tackling increasingly complex socio-economic and geopolitical problems has revealed certain limitations in our well-established legal understanding of the principle of conferral. Our current legal approach to verifying the existence of Union competence focuses almost entirely on the relationship between each and every discrete and individual Union measure, on the one hand, and its purported legal basis or bases under the Treaties, on the other hand. That approach offers only limited recognition to the particular demands imposed on Union policymaking by challenges of formidable scale, complexity and often urgency – demanding solutions based on multi-faceted, multi-component, and highly integrated regulatory packages. Such legal diffidence can generate a range of tensions: further complicating an already difficult negotiating process; interfering in or even altogether unpicking delicate political compromises; forcing the Union institutions towards suboptimal policy responses or exposing them to allegations of “competence creep”; and raising difficult questions about the estranged legitimacy claims of robust constitutional law versus effective public governance. That analysis invites us to reflect critically on the performance, merits and limits of the current Treaty frameworkgoverning attributed Union powers, not least by suggesting some potential adaptations and reforms that might help ameliorate such tensions.