EU law is over-constitutionalized. Advanced a decade ago by Dieter Grimm, this thesis seems like a truism that requires neither proof nor refutation. This Article follows a different intuition: What if Grimm was wrong? Breaking with an orthodoxy of EU law, the article puts the over-constitutionalization thesis to the test. It reveals that Grimm’s claims are questionable at a theoretical, analytical, and normative level. Grimm departs from the premise that any constitution faces the task of striking a balance between stability and flexibility at the level of the constitutional text and between law and politics on the institutional plane. According to Grimm, this balance is disturbed at the EU level, an analysis which appears plausible at first sight. However, in both respects—Treaty text and institutional practice—there is a mismatch between Grimm’s theory and reality. While he overestimates the Treaties’ rigidity in substance and procedure, he underestimates the rise of judicial responsiveness and legislative activity. These analytical shortcomings taint Grimm’s normative proposal. Disregarding the institutional practice, he suggests scaling back the Treaties to their genuinely constitutional contents. Drawing on Luxembourg’s increasing responsiveness to the Union legislature this Article advances an alternative way forward by further calibrating the Court’s jurisprudence.

This article analyses the European Union's competences in the energy sector. It focuses on Article 194(2) of the Treaty on the Functioning of the European Union, which affords EU Member States the right to determine the conditions for exploiting their energy resources, the choice between different energy sources and the general structure of their energy supply. This article traces the constitutional development of EU competences in the energy sector to demonstrate the relevance of Article 194(2) TFEU in the current constitutional, international and sector-specific contexts of EU energy law. It analyses the recent case law of the Court of Justice of the European Union, which shows that the scope of Article 194(2) TFEU is considerably narrower in practice than its wording implies. The article concludes by evaluating the implications of this narrow interpretation on the future development of EU energy law and, in a broader context, on the reach of EU energy and climate policy.