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EU constitutional dismantling through strategic informalisation : soft readmission governance as concerted dis-integration
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1725-6739
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EUI; LAW; Working Paper; 2023/03
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MORENO LAX, Violeta, EU constitutional dismantling through strategic informalisation : soft readmission governance as concerted dis-integration, EUI, LAW, Working Paper, 2023/03 - https://hdl.handle.net/1814/75959
Abstract
This paper takes issue with what I have called the process of ‘constitutional dismantling’ that can be observed in the field of external migration policy through the tactical informalisation of readmission cooperation. It maps out the strategic use of soft law to secure expulsion agreements with third countries, mediating the tacit approval or active involvement of the EU institutions and the Member States. The strategy is perceived by its proponents to increase the efficacy of policy and improve its intended outcomes, but at the expense of foundational principles of EU law. The principles of conferral, institutional balance, and sincere/loyal cooperation impose key constraints on EU and Member State action that the choice for soft law mechanisms ignores. My main contention is that this is not an unintended consequence, but a deliberate result with noxious effects for the entire EU legal order. The disregard for core rule of law standards that this approach demonstrates amounts to a form of ‘concerted disintegration’ pursued by the very actors supposed to guard the EU integration project and oversee its realisation in line with Treaty provisions. Rather than furthering the ‘integration through law’ model, at work since van Gend & Loos, the informalisation trend negates the force and function of legal norms as both the object and agent of Europeanisation. The soft law route denotes the instrumentalisation of legal mechanisms for the advancement of policy objectives, the fulfilment of which is elevated above and beyond constitutional rules (that apparently can be dispensed with at will), embracing instead a regulation-without-legitimation paradigm that unravels the EU’s constitutional framework. The approach signals a perilous deviation towards the tactical weakening of key foundations of the EU system, de-naturalising the external dimension of EU integration for strategic gain in the migration field, eliminating democratic oversight, impeding judicial review, preventing human rights enforcement, and corroding competence attribution, institutional balance, sincere cooperation, and EU values overall. The most alarming is the reverse competence creep that this move involves, operated (by stealth) without Treaty amendment, and that it is orchestrated from within the Union. The intentional subversion of the Community method strays towards a new ends-driven kind of discretionary governance, where founding principles can be disregarded for policy convenience. The paper problematises this development against the background of the rule of law crisis unfolding in the Union, not only in the Member States, as others have documented, but crucially at the EU level as well. The ramifications of this phenomenon, although yet unknown in their full extent, are significant across the board for the EU regime as a whole.