Indeterminacy and Legal Uncertainty in EU Law

Abstract

Successive treaty amendments and legislative developments have led to the increasing formalization of EU law through the express recognition of constitutional rights, the adoption of detailed rules in several spheres, and the concretization of norms and processes through administrative rule-making. EU law has become more specific, more rule-bound, and more process-bound. Nevertheless, as a result of reforms or reactions to successive crises, it has also become more uncertain. This chapter seeks to explore the meaning, the reasons and the effects of uncertainty in EU law. After attempting briefly a taxonomy of uncertainty, it examines constitutional fluidity, authority uncertainty, and uncertainty as to the effects of rules. Constitutional fluidity is generated, inter alia, by frequent treaty revisions, silent constitutional amendments, the plurality of legal sources, and growing asymmetry in the rules applicable to Member States. Uncertainty pertaining to the attribution of authority results, inter alia, from the fusion of EU and State action in many areas, and the remit granted to EU agencies. A distinct feature of contemporary EU law is that in sensitive areas it is difficult to ascertain whether action is attributable to the EU or the Member States which may leave citizens in a precarious state in relation to the protection of their interests. Ambiguity as to the effect of rules is illustrated by the widespread use of soft law instruments or hybrid measures which sometimes appear to obfuscate intentionally the limits of normativity. The end result is a post-crisis legal edifice which increases EU discretion but may imperil individual rights.

Keywords: European Union, Legal Certainty, Crisis Management, Judicial Review