The concept of institutionalised disintegration: towards a recognition of the EU institutions anew

This layer is expressed by the conflict-based regime. The institution is a kind of reorganisation of powers (based on competences or objectives) – beyond Montesquieu’s separation of powers model.

F Ryszka, O pojęciu polityki (Wydawnictwo Naukowe PWN 1992), 43–44.

The second one is to examine the systemic dimension of the institution and to limit the possibility of undermining the normative architecture of this system. Legal normativity mitigates and legally structures (precises) social objectives and expectations. Recognition of the system is an effect of tension between institutional architecture and constitutionalisation in public international law terms.

A Paulus, ‘Whether Universal Values can Prevail over Bilateralism and Reciprocity’, A Cassese (ed.) Realizing Utopia: The Future of International Law (OUP 2012), 89–104.

The realist layer presents the institution as a place where ideas can turn into an objective claim.

J Habermas, Strukturalne przeobrażenia sfery publicznej (Lipnik W Łukasiewicz M trs, PWN 2008), 110.

The first spectre of disintegration has an exclusively legal dimension and is based on the constitutional courts of Member States’ allowance to express the last word in cases ruled before the Court of Justice of the EU (CJEU). This construction comes from an analysis of the Federal Constitutional Court of Germany (FCC) case law and points to the particular role of constitutional law as a method of appraising the relations between EU law and public international law.

Cf: BVerfG, 2 BvR 987/10 vom 7.09.2011, BVerfG, 2 BvE 4/11 vom 19.6.2012, BVerfG, 2 BvR 1390/12 vom 12.09.2012, BVerfG, BVerfG 2 BvR 859/15, vom 05.05.2020.

The basis for this concept is a constitutional assessment of the supranational law: it shapes a new legal system in the sense of public international law, whether it is a normative updating of binding commitments in line with the EU objectives. A decision of the FCC shall indicate to the German legislature an appropriate procedure for accepting the proposed EU commitments. This practice may be considered controversial in the EU law context.

J Habermas, The Crisis of the European Union: A Response (Ciaran Cronin tr, Polity Press: 2012), 127–138.

The first argument is that the Member States are Masters of the Treaties (Herren der Verträge).

BVerfG, 2 BvR 1390/12 vom 18.03.2014, recital 161–166.

The second argument is called democratic and is based on the concept of civil rights.

Cf: DH Scheuing, ‘Deutsches Verfassungsrecht und europäische Integration’ in Müller PCh Riedel E (ed.), Gemeinsames Verfassungsrecht in der Europäischen Union (Baden-Baden 1998), 186.

Thirdly, the above-mentioned arguments need to be consolidated in the context of an admissible arbitrarity of the CJEU. The concept of arbitrarity is a technical term that indicates the FCC’s recognition of the CJEU’s authority to relax the process of applying EU law within limits that protect the constitutional identity of Member States. The basic elements and premises of this identity are the above two arguments. By contrast, the essence of constitutional identity is to protect the fundamental rights that EU citizens enjoy and that cannot be limited by law, either by the EU institutions or by the Member States. The FCC ruling of May 2020,

BVerfG, 2 BvR 859/15, vom 05.05.2020.

The constitutional court’s autonomous authority to limit the limits of the CJEU arbitrarily is the subject of much criticism. The two leading ones will be reconstructed. Firstly, the FCC should refrain from this type of practice because of the well-established claim to build dialogue between Member State authorities and the EU institutions and to avoid clashes. What is more, the concept of constitutional identity is strictly judicial in nature. During the work on the Lisbon Treaty, Germany suggested a special complaint procedure against EU law before national constitutional courts for violation of fundamental rights.

BVerfG, 2 BvE 2/08 vom 30.6.2009, para 243.

The Dutch Urgenda judgement

Urgenda Foundation v. State of the Netherlands, in which two judgments so far have been delivered: Court of First Instance, The Hague, 24 June 2015, Stichting Urgenda / Staat der Nederlanden, ECLI:NL:RBDHA:2015:7145 (Urgenda, The Hague Court of First Instance); Court of Appeal of The Hague, 9 Oct. 2018, Stichting Urgenda / Staat der Nederlanden, ECLI:NL: GHDHA:2018:2591 (Urgenda, The Hague Court of Appeal).

In the institutionalised disintegration context, the national court’s usage of the argument from the ECHR is particularly important. The EU’s accession to this Convention requires reinstitutionalisation of the EU legal system,

CJEU - Opinion 2/13 of the Court (Full Court), (18 Dec. 2014), para 38,158, 178.

The mixed spectre of disintegration combines both legal and political arguments. Indeed, social facts can be assessed in both political and legal terms. However, in this approach, legal actions are taken to strengthen the political rejection of the integration. Methodologically, the ways of understanding international commitments will be validated. Technically, the constitutional rules, which discredit public international law, will be shown.

Public international law is not subject to a consistent methodological assessment.

Cf: A Gourgourinis, General/Particular International Law and Primary/Secondary Rules: Unitary Terminology of a Fragmented System (2011) 22/4 European Journal of International Law, 993–1026.

The equality of entities under public international law implies equality in relation to reciprocal commitments. Methodologically, the state chooses a way of validation and commitments’ relation to domestic law.

Cf: A von Bogdandy, Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law (2008) 6 (3–4) International Journal of Constitutional Law, 397–413.

The constitutional rules will be reconstructed as a technical approach. The proposal for amendments to the Constitution of the Russian Federation is a good and to-date example of this phenomenon that will be a case study here.

Y Ioffe, ‘The Amendments to the Russian Constitution: Putin’s Attempt to Reinforce Russia’s Isolationist Views on International Law?’ (2020) Blog of the European Journal of International Law <https://www.ejiltalk.org/the-amendments-to-the-russian-constitution-putins-attempt-to-reinforce-russias-isolationist-views-on-international-law/> accessed 20 August 2020.

The view that national constitutions should set the limits of the commitments to be accepted is common in the context of assessing the binding force of international treaties. However, such an assessment should take place before the State is bound (in a good faith) by the Treaty. Proposals for amendments that allow for political decisions at the national level on the need to apply norms derived from international legal commitments and on the subsequent interpretation of legal decisions issued by international bodies undermine the essence of public international law. In such a situation, it must be considered that any commitments of the State would be signed and ratified in blanco. Methodologically, such a commitment does not imply the need for a norm. Disintegration is an inconsistency between formal law and legal policy. The conception of in blanco commitments comes from and is justified in Scandinavian constitutionalism as a legislative practice.

M Wind, ‘Do Scandinavian Care about international law? A Study of Scandinavian Judges’ Citation Practice to International Law and Courts’ (2016) 85(4) Nordic Journal of International Law, 281–302.

The Russian postulate de lege ferenda introduces legal uncertainty for others (parties of treaties) and reverses the paradigm of the general principles of public international law, which would dictate the a priori assumption of unwillingness to meet one’s commitments and respect for the law, briefly – bad faith. This case shows that constitutional rules do not cut the state off from the process of integrating international law. These rules are aimed at the appropriation of the interpretation of public international law and political disintegration of international legal regimes by states.

Populism is a political spectre of disintegration and a phenomenon that reconstructs current political discourse. The populist method undermines the recognition of norms, projects changes and creates a system of evaluation of social actions.

JW Müller, Co to jest populizm? (Sutowski M tr, Wyd. Krytyki Politycznej 2017), 10–15.

The first aspect distinguishes the above-mentioned state-centric and the merely societal

Cf: the concept of societal constitutionalism in: G Teubner, Constitutional Fragments. Societal Constitutionalism and Globalisation (OUP 2012).

Emancipation is to define, achieve and strengthen one’s rights. Disintegration should foster the disintegration of normative systems that restrict rights. The concept of roguery derives from the Derridean rogue states and exposes threats to democracy from the state.

J Derrida, ‘The Last of the Rogue States: The “Democracy to Come” Opening in Two Turns’ (2004) 103 (2–3) South Atlantic Quarterly, 323–341.

Despite the populist narrative, disintegration is not the essence of public international law. The state-centric populism recognises the weakness of European integration as a legally incomplete process and opposes the extension of legal integration at the same time. On the other hand, societal populism aims at disintegrating the social institutions that led to social and civic regress.

The first legislative method within the EU legal framework, which aims at formalising the concept of institutionalised disintegration, is based on the so-called EU international agreements. The essence of the method is the appropriateness of the system of EU institutions to shape commitments in accordance with public international law, which are differentia specifica of the EU legal system at the same time.

The pedigree of international agreements binding on the EU, which derive from the EU’s external competences, is the so-called ERTA doctrine.

Cf: Cases C-22/70 Commission of the European Communities v Council of the European Communities (31 March 1971)

The institutions may adopt a legislative act of the EU which may generate a non-treaty-based

The legal basis for such actions in the Article 3(2) of TFEU.

Neither the direct effect nor the obligation to implement the norm in absolute terms may be considered in the context of the use of the above techniques. This means that a competence contained in both primary and secondary EU law cannot be the basis for requiring EU institutions and Member States (in the case of non-exclusive competences

This concept describes all competences that are not indicated in the Article 3 of TFEU and it is not necessary to be literally indicated in Articles 5 and 6 of TFEU.

Potentially, a legislative act (in particular a regulation), which, subject to an international agreement, guarantees a wide range of EU citizens’ participation and new subjective rights related to the idea of democracy, can be imagined and reconstructed. Such a solution would give the EU exclusive competence to create such a regime. Only a potential international agreement would be the basis for the direct effect of the rights identified in the above-reconstructed piece of EU secondary law. The way it has been presented could involve the EU institutions in developing subjective rights under the new international regimes. This would be a way of democratising and strengthening public international law through legislative acts of the EU.

The second legislative method is based on the doctrine of parallelism. The notion of parallelism indicates the existence of at least two normative systems of norms which remain independent of each other and form a structure of equally binding norms for entities within systems.

R Schütze, ‘Parallel external powers in the European Union’ in Schütze R (ed) Part II - Foreignaffairs and the EU Constitution: vertical aspects (CUP 2014), 237–286.

The Schengen Agreement is an example of the implementation of the doctrine of parallelism. The Agreement was the foundation for the free movement of persons without internal border controls. It was a systemic response to areas insufficiently regulated by Community law and a normative instrument that contributed to the realisation of fundamental freedoms. The doctrine of parallelism has influenced the development of the principle of a single institutional framework, which in turn has evolved towards the recognition and development of the acquis communautaire. This meant that the Schengen Agreement created independent norms within the regulatory area and that changes to the content of the agreement depended exclusively on the parties. Ultimately, in 1999, the Schengen acquis was included into the EU legal order.

OJ L 239, 22.9.2000, p. 13–18

Parallelism-based law-making is linked to the complexity of the EU as a legal system. However, the postulate to create a single system based on the acquis communautaire is connected with doubts about the possibility of coherent integration of different areas of law. The paradigm of EU law is the principle of uniform (consistent) application of the law. On the other hand, lawmaking can be differentiated in accordance with the principle of efficiency.

See more: J Barcz, Konwencja z Prüm. Eksperyment prawotwórczy w Unii Europejskiej (2007) no. 3 Kozminski Law School Papers

Systemically, the Prüm was an element of the third pillar of the EU, whereas since the Lisbon reform it has concerned the so-called shared competences of the EU. Therefore, a change of approach to the protection of personal data was particularly important. The third pillar was not subject to the Data Protection Directive.

Directive of the European Parliament and of the Council 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281, recital 13.

The third method of institutionalised disintegration is a proposal for a complete legal system which is based on the EU institutions and corresponds to the norms of the Treaties. This normative situation refers to the reconstruction of EU law by the CJEU in the context of consideration of the legality of the Treaty Establishing the European Stability Mechanism by a part of Member States.

C-370/12, see more: Case C-370/12, Pringle v. Government of Ireland, Ireland and the Attorney General (27 Nov. 2012)

The legal basis has been introduced in the TFEU. The European Council adopted a Decision in accordance with a simplified procedure (the so-called footbridge procedure).

European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro [2011] OJ L 91, 13.

The adoption of such a free interpretation by the CJEU and the light criticism of Member States’ formalism also make it possible to assume that it is possible to use the EU institutions under the new legal systems. The potential inclusion of the CJEU as an organ of a new international organisation stems from the personal (Member States), formal (compromis) and substantive (relation to EU law) aspects.

C-370/12, para 171–175.

The formal parallelism of the EU institutions allows for a new legal system. The relation to EU law does not have to be based on the texts of the Treaties and secondary EU law. The pursuit of values and objectives, the protection of fundamental rights and freedoms and the promotion of policies within the framework of non-exclusive competences are sufficient grounds here. Associated, but still controversial, is that the EU institutions may have new powers conferred under a new legal system. The condition is that these powers do not affect the EU conferred powers and do not interfere with the EU institutions’ achievement of their objectives.

CF: L Ehrlich, Prawo międzynarodowe (Wydawnictwo Prawnicze 1958), para 2–12.

The last thesis legally expresses the concept of institutionalised disintegration. However, this concept needs to be examined in up-to-date scientific debates on legal phenomena.

Firstly, the concept of cross-currents will be recognised.

Cf: L Ehrlich (n 58) para 81–86.

Historically, abstract legal norms in public international law and the apolitical nature of the institution were supposed to detach the processes of creating new legal systems from the influence of public opinion.

L Ehrlich (n 58), para 12, 84.

The original conception of conflict-of-law meta-rules describes a method of determining the role of public international law within the EU legal framework. EU law has emerged from public international law, established the self-contained regime and limited the scope of Member States’ sovereignty. Thus, EU law has rejected a fundamental principle of public international law. At the same time, it strengthened the effet utile as a basis for the explanation of legal doubts. The view, which indicated a kind of specialisation of treaty regimes, expressed the probable direction of changes in public international law. This legal construction stays in strong relation to a new trend and technical proposal for the institutionalised disintegration. EU law becomes the basis for creating new legal systems within public international law. Moreover, the paradox of public international law shall be recognised here. On the one hand, public international law is legally assessed as a global legal phenomenon; on the other hand, it is a point of authority for this kind of assessment. The concept of conflict-of-law meta-rules allows to map relations between EU law and public international law. In this way, it will be possible to determine that a treaty-based system is more significant for the jurisprudence. Furthermore, the conflict-of-law autonomy of meta-rules makes it possible to determine whether it is possible to methodologically describe a new system-type of law that combines the dichotomies of EU law and public international law.

The conflict-of-law meta-rules show the weaknesses of the formal understanding of the law and are a response to the understanding of international norms as ineffective inside the system. The theoretical disintegration of supranational relations creates a meta-rules-based system. This system is the basis for the recognition of legal phenomena that shape institution-based supranational relations.

The second phenomenon will be presented in the light of the COVID-19 pandemic. The need for a rapid political response has shown the weaknesses of the adopted international or supranational solutions. Moreover, Member States’ responsibilities

F Paddeu, F Jephcott, ‘COVID-19 and Defences in the Law of State Responsibility: Part I & II’ (2020) Blog of the European Journal of International Law <https://www.ejiltalk.org/covid-19-and-defencesin-the-law-of-state-responsibility-part-i/ accessed 20 August 2020, <https://www.ejiltalk.org/covid-19-and-defences-in-the-law-of-state-responsibility-part-ii/> accessed 20 August 2020.

The conflictual character of laws is an effect of an exclusively systemic reflection. The recognition of the law is based on values. However, laws have an appraisive character.

The main thesis recognises the law as an essentially contested concept, it presupposes appraisive character of law. See more: WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society, 167–198.

However, EU law is more complex. The rationale for the Treaties can be sought in the sovereignty of the Member States, democracy at the EU level, the inevitability of the integration process, values and so on. It is important to reconstruct the absolute validity of EU law, which understands the law as a necessity to implement an accepted ontology. The ontology of EU law is supranational relations. The complexity of these relations was highlighted by the outbreak of the COVID-19 pandemic.

Coronavirus disease 2019 is an ongoing pandemic. The World Health Organization firstly declared it to be a Public Health Emergency of International Concern and nextly, recognised it as a pandemic on 11 March 2020. As of 3 September 2020, more than 26 million cases have been reported across 188 countries and territories, resulting in more than 864,000 deaths.

The form and assessment by the European Parliament of the European Council conclusions on the Post-COVID-19 Recovery Plan

European Parliament resolution B9-0229/2020 of 23 July 2020 on the conclusions of the extraordinary European Council meeting of 17–21 July 2020 [2020] P9_TA(2020)0206 <https://www.europarl.europa.eu/doceo/document/TA-9-2020-0206_EN.html> accessed 18 Dec. 2020.

The last phenomenon is based on the inefficiency of legal realism and communicative actions in law. In accord with Habermasian critique, the legal realism can only abstract social phenomena and shall be replaced by communication.

J Habermas, The Crisis of the European Union: A Response (Ciaran Cronin tr, Polity Press: 2012), 119–126.

The main challenge for EU law theory is to identify a new systemic interpretation that rejects the state-centric approach.

Cf: the criticism of Hegelian civil society theory in: Ch Mouffe, For a Left Populism (Verso 2018), 44–50.