It is common to suggest that there is a need to expand and develop politics within the EU, and to create a more functioning transnational political community. Central to this discussion is often the position and functioning of the European Parliament, and to some extent the Council, and the need for a transnational political community which can support democracy and contestation.
However, politics needs more than debate: it also needs the possibility to actually make choices. Suggestions for politicizing the EU, or enhancing its politics, tend to neglect the degree to which its representative and executive organs are constrained by legal rules. The Treaty does not create an open-ended political organization, but rather a functionally oriented one, constitutionally committed and restricted to certain goals. The legislature’s constitutional position is more akin to a specialist regulator or agency than to a national parliament.
Politics would then be contestation about the meaning of those Treaty goals. However, on such interpretation the Court has the last word. It has a prerogative to pre-empt political choices by offering ‘thick’ Treaty interpretations. In the internal market it has done this to the point that legislation is little more than the execution of the Court’s agenda. In other policy fields there has traditionally been more political freedom. Yet in the last few years we see the Court powerfully entering the fray on questions of the relationship of the EU with other organisations, transatlantic relations, issues of security and fundamental rights, and management of the Euro. If it continues to colonise these, it will become pointless to speak of bringing politics or democracy to the EU: there will be few choices left to be made. The immediate problem of politics in the EU is not social or ideological, but one of constitutional architecture.
