Indeterminacy and Legal Uncertainty in EU Law

Takis Tridimas, Indeterminacy and legal uncertainty in EU law in Joana Mendes (Ed), EU Executive Discretion and the Limits of the Law, OUP, 2019

23 Pages Posted: 4 Feb 2019

See all articles by P. Takis Tridimas

P. Takis Tridimas

Queen Mary University of London, School of Law; King's College London – The Dickson Poon School of Law; Pennsylvania State University, Penn State Law

Date Written: January 21, 2019

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

Suggested Citation

Tridimas, P. Takis, Indeterminacy and Legal Uncertainty in EU Law (January 21, 2019). Takis Tridimas, Indeterminacy and legal uncertainty in EU law in Joana Mendes (Ed), EU Executive Discretion and the Limits of the Law, OUP, 2019. Available at SSRN: https://ssrn.com/abstract=3319870

P. Takis Tridimas (Contact Author)

Queen Mary University of London, School of Law ( email )

United Kingdom

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States
814-865-8975 (Phone)

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