Have the rules of the game changed? Novel legal interpretations and their impact on the EU’s legitimacy communication

ABSTRACT

Scholars have often argued that European Union (EU) policymaking should be less technocratic and more political. However, it remains unclear whether the politicisation of policy-making processes by the European Commission will strengthen its legitimacy. Some authors view the EU and its institutions as its most effective outside of political strife. Others suggest that more politicisation will increase EU legitimacy as it can lead to debates where European Integration objectives can be redefined. This study argues that the impact of politicisation on the Commission’s legitimacy ultimately depends on the endorsement of novel interpretations of an EU law or policy issue. Here, two state aid policy decisions are compared using a claims-making analysis. The study finds that new legal interpretations made by the Commission led to a politicisation surrounded by questions about the EU’s authority. However, if the European Commission follows pre-established rules, then politicisation can strengthen the EU’s legitimacy communication.

KEYWORDS:

• Politicisation
• state aid
• novelty
• European integration
• (de)legitimation
• legitimacy communication

Acknowledgments

The author would like to thank Professor Colin Hay and Professor Dirk De Bièvre for their helpful feedback on earlier drafts of this paper.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

The data that support the findings of this study are openly available in ‘Claims State Aid cases: Apple and Ilva’ at 10.5281/zenodo.6900617.

Additional information

Funding

This article forms part of PLATO (The Post‐crisis Legitimacy of the European Union) project which received funding from the EU’s Framework Programme for Research and Innovation Horizon 2020 under the Marie Skłodowska‐Curie Grant Agreement No. 722581.

Notes on contributors

Elena Escalante-Block

Elena Escalante Block is a postdoctoral researcher at the University of Antwerpen. Her current research forms part of the project ‘The Politicization of European Union Trade Agreement Negotiations’. The project which is funded by the Research Foundation Flanders (FWO) seeks to answer: what are the varying degrees in which trade agreement negotiations have been politicised? And what are some of the necessary conditions for the politicisation of EU trade agreements to occur?

Elena obtained her PhD at SciencesPo, Paris where she was a Marie Sklodowska-Curie fellow. Her PhD was affiliated with the PLATO project, a European training network (H2020-MSCA-ITN) where 15 PhD candidates investigated the legitimacy of the EU’s responses to the financial crisis. Her PhD analysed how state aid cases can become subject to politicisation or depoliticisation as well as how a variety of actors might legitimise or delegitimise the Commission and the EU more broadly.