38
D. Kochenov
reminding me of the absurd official documents issued to a pityful little man
struck by devilish magic by the cat Behemoth in Bulgakov’s The Master and
Margarita in testimony of attendance of a witches’ shabash in a pig form as
a means of aereal transportation. Differently from Bulgakov’s hellish world
of Stalinist Moscow, the EU has been built specifically to curtail states’ ability to improve ‘their’ peoples’ lives at the expense of those across the border.
Questions such as ‘Should a Polish worker be deported from the UK to free
a place for a Scot?’ have been answered with the interests of all in mind,
against state thinking or nationalist visions.
I.
From the very first steps of European integration it was clear that the consequences of the European project for the states participating in it will be far-
reaching. Whether we like it or not, supranationalism and the voluntary conferral
of competences by member states to the EU have led to profound changes of the
legal-political landscape in Europe. Even if the references to la fédération européenne in the 1950 Schuman Declaration are ignored, the initial goals of the
project are undisputed. They included a trade off in which some sovereign powers were exchanged for closer interconnectedness and peace. At the heart of the
project lay the idea of putting a limit to what states can do.
While this logic is probably uncontroversial in the areas where competences have been expressly conferred on the Union, such as the customs
union, the same rationale also affects areas which are not under the control
of the supranational institutions. This is as natural as it was predictable from
the very beginning, since the core of the notion of the Internal Market on
which the contemporary Union is built is teleological in nature. The supranational institutional structure was put in place to enable the achievement of
the Union’s goals, thus putting the teleological rationale at the core of the
whole construct, as Judge Pescatore has explained forty years ago2. A duty
to help and not to hinder supranational integration made its way into the text
in the form of the principle of Union loyalty. Consequently, any national law
at any level, no matter whether it is generally within the exclusive competence of the member states or not, can be squashed, should it stand in the
way of achievement of the goals of the Union interpreted teleologically.
II.
To expect that profound self-imposed limitations which the member states
took up when designing and ratifying the Treaties would not have any consequences outside of the legal field is naïve as much as short-sighted. Legal
2
Miscellanea W.J. Ganshof van der Meersch (1972), Vol. 2, 325. Brussels:
Bruylant.
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