MES / 4 MESES POST-TRATAMIENTO CON

The first Chapter has provided an intense discussion on the structure of legal bases and legal basis litigation under supranational EU law, i.e. the former first pillar. It has identified the differences between legal bases which lead to legal basis litigation before the European courts. First, the nature of the competence can be of various forms, i.e. exclusive, concurrent, shared, complementary, coordinating, parallel, or joint between the EU and the Member States. Second, different legal instruments entail different legal effects, i.e. directly effective, indirectly effective, or without direct effect. Third, legislative procedures can have an influence on the institutional balance and the voting requirements – qualified majority or unanimity – in the Council. These differences between the legal bases lead to divergent outcomes in the choice of legal basis by the EU as compared to the Member States or between the various EU institutions. Thus, legal basis litigation has occurred and the European courts had to solve situations of ambiguous or insufficient delimitation provided for within the treaties.

The first Chapter has also analysed the general criteria which have been developed by the courts to provide guidance in legal basis conflicts, most prominently the ‘centre of

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gravity’ theory and the lex specialis derogat legi generali principle. While these criteria of legal basis litigation were aimed at increasing legal certainty in such cases, the courts have failed to apply these principles in a consistent manner: Over time, the courts have created exceptions as well as conflicting criteria which would undermine previous ones. In particular, this was illustrated with the courts’ zig-zag course between the single- legal-basis and the dual-legal-basis approach, but also the ‘centre of gravity’ theory has not consistently followed the ‘aim-and-content approach’ and occasionally diverted to a ‘content-only’ test. Such inconsistencies in the judgements can be attributed to numerous competing competences available in the treaties and to the fact that choices of legal basis may therefore often have an arbitrary character.

While the Treaty of Lisbon may have remedied some areas of legal basis conflicts, it has at the same time created new problems which the courts will have to address sooner or later. In particular, this includes the codification of the types of competences which may cause ‘competence cocktails’ in some areas, as well as the newly introduced hierarchy of legal instruments. The latter may lead to inter-institutional disputes concerning the distinction and correct application between Articles 290 and 291 TFEU. Thus, legal basis litigation will continue to exist under the supranational provisions of the TFEU, requiring a consistent application of previously established criteria and maybe even the establishment of new principles and criteria in order to ensure legal certainty in new legal basis conflicts.

The second Chapter has discussed external relations under the supranational EU law of the former first pillar, and intergovernmental law under the area of common foreign and security policy, as well as the cross-pillar dimension of external relations. These aspects have been analysed with regard to the general criteria established under the internal sphere of the former first pillar. As has been observed, external relations under supranational EU law has continuously been expanded with the help of the ‘doctrine of implied powers’, thus extending the exclusive powers of the EU to the detriment of Member States’ competences. In addition, the overlapping of different competences even within the same policy area has created intra legal basis litigation. Another peculiarity of supranational external relations law is the existence of mixed agreements. In contrast, external relations law under the intergovernmental sphere has always remained distinct from supranational law. Most prominently, the area of common foreign and security policy preserved its remoteness from judicial scrutiny and its specific decision-making procedures.

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The second Chapter has also examined the delimitation between supranational and intergovernmental competences previously provided for in the old Article 47 (Amsterdam) TEU. This provision has allowed for a constant encroachment upon Member States’ powers. After Lisbon, the intergovernmental policy areas have been strengthened with the changes introduced by the new Article 40 TEU. Nevertheless, the new provision does not bring an end to cross-pillar legal basis litigation in external relations. Instead, it raises new questions as regards the possibility of applying general criteria of legal basis litigation, such as the ‘centre of gravity’ theory, in inter-pillar matters. As has been suggested, however, the best solution would be a splitting of such measures which have supranational as well as intergovernmental objectives, linking them with the introduction of cross-references. This would avoid an encroachment of competences and enhance legal certainty in an already politically sensitive and complex area of law.

The third Chapter has examined the area of freedom, security and justice under the various forms of legislative frameworks. The former third pillar has initially been intergovernmental in character which is evident from a similar structure of legal bases as under the former second pillar. However, a different, i.e. more supranationally influenced, judicial interpretation has led to a diminishing of intergovernmental competences in this area: Prominent examples are the attribution of indirect effect for former third pillar instruments, the introduction of loyal cooperation, the passerelle clause, as well as the diversion from the courts’ otherwise lack of judicial control in intergovernmental matters. This subtle supranationalisation under the former third pillar significantly weakened its intergovernmental character already prior to the introduction of the Reform Treaty.

Over the years, the former intergovernmental third pillar has thus suffered from an increased diminishing of its powers until the final integration into the realm of supranational EU law under the Treaty of Lisbon. Nevertheless, this does not render legal basis litigation in this area obsolete. Rather, the previous inter-pillar litigation has now become intra-pillar conflicts. Indeed, most of the previous legal basis conflicts remain on the grounds that Title V of Part Three has preserved a special status within the TFEU, such as the application of the ‘special legislative procedure’, the involvement of national parliaments, Member States’ rights of initiative, emergency brakes, and opt- outs. The formal integration, of course, now facilitates the application of general criteria of legal basis litigation, such as the ‘centre of gravity’ theory or the lex specialis

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derogat legi generali principle. However, as has been argued, it would also be plausible to introduce a protection mechanism for Title-V provisions in the form of a non- affection rule, similar to Article 40 TEU. This would ensure a better delimitation of competences for the area of freedom, security and justice as well as their proper functioning within supranational EU law. Unfortunately, such a solution was not found in Case 130/10 which has therefore not brought about the expected and also necessary clarification in this area.