The Supranational Dual State: The European Union as a Venue for Arbitrary Power?

Dualism has been a defining feature of the EU for a long time. Being both “quasi-federal” and also confederal, the legal and political realities of the Union diverge. Moreover, for more than a decade, the Union has been shaken by various crises. Some might deserve the title more than others, but all have been treated as such. I argue that the combination of these factors has created the potential in the EU for what Ernst Fraenkel described as a dual state. This, in turn, risks turning the EU into a venue for the exercise of arbitrary power. Power can be exercised arbitrarily in different ways; the most important of these is when power wielders are not subject to democratic accountability or regular checks and controls. The EU dual state allows for circumventing both. In a dual state, a normative and a prerogative state coexist. While the normative state operates under the rule of law, it is contingent on non-abrogation and non-suspension by the prerogative state – signifying rule by law. In the normative state of the EU, the intergovernmental will of member state executives and the supranational will of the European people are two ambitions that can counteract and thus temper each other in a system of separation of powers. I analyze whether there is a co-existing prerogative state through which intergovernmentalism can sideline the supranational will of the European people and other constraints. It is argued that the EU prerogative state operates in two different modes. The first of these characterizes itself by the member states’ executives’ decision to operate outside the EU’s legal framework: external intergovernmentalism. By switching “hats,” member state executives can turn themselves from EU institutions into national representatives in a purely intergovernmental setting, thereby leaving EU constraints behind. The second is when member state executives dictate the agenda within the EU legal framework: internal intergovernmentalism. I analyze the process of EU integration since the Treaty of Maastricht, the period of “crisis” from the late 2000’s until today, acts of EU institutions, and case-law of the Court of Justice of the European Union (CJEU) to discern how power balances are shifting in the Union. It is argued that the possibility of external intergovernmentalism conditions and enables member state executives’ capacity to dictate within the EU legal framework. A dual state comes into existence through an encroachment of the political into the legal, a process of redrawing the boundaries of the political. Both modes of EU dual statism represent such processes. However, a Dual State also operates through an encroachment of the legal into the political, which is key in the EU context. Both decisionism and legalism are constitutive of the Dual State’s operations. Combining methods of law and political science, I examine what is considered political, what is legal, the relationship between the two in the EU, and how these boundaries may be shifting.