Extra-treaty changes to treaties: ultra vires actions, creeping competences and decision-making outside the state

The European Union, as any other organisation, has been evolving. It is a natural need of necessary adjustment of a given organisation to current challenges which are never constant. However, in the case of the European Union, this evolution has been intensifying for some time and, moreover, it has been more frequently observed in practice, while treaties have remained relatively stable (the last interference in the primary law was, in fact, in 2009, in the Treaty of Lisbon). In effect, it is not an overstatement to say that the European Union, despite its strong, since treaty-based, framework for operations, is, in a way, an underspecified, in status nascendi, structure. The procedural essence of the Union consists in the pending process of ‘becoming’, which means that in terms of epistemology the Union has not yet been described fully, and the definition and explanation of Union decision making processes fall behind the process of changes happening in the EU. The latter always precede legal regulations, which - as experience suggests - register changes that have occurred in the practice of Union institutions’ operations with a significant delay. In fact, a lot of Union functioning mechanisms are first established in practice and then ‘inserted’ in treaty regulations, taking on the form of binding de lege lata solutions. Therefore, it can be safely said that while analysing the phenomenon of the European Union, each researcher faces a kind of ‘epistemological chasing of the Union’, the actual operating mechanisms of which precede formal grounds of operations. It generates searching for new terms, new concepts that would best reflect the sense of changes and primarily, would balance the functioning of the Union with what is set in book and what is seen in action. Therefore, measures undertaken by Union institutions, which show the dissonance between what the Union can do and what the EU actually does, have been professionally defined as ‘competence creep’ and ‘state bypassing’. Both concepts are, obviously, not reflected in the treaties, yet, they paradoxically precisely describe the functioning of Union institutions by showing the disproportion between formal and actual sides of their operations. In addition, a topic constantly raised in discussions about European Union law is the so-called ultra vires actions. They are also, as indicated, an element shaping the Union as an accommodating structure. This article is devoted to these issues.