Drawing the line between Circumvention and Gap-Filling: An Exploration of the Conceptual Limits of the Treaty's Flexibiliy Clause

• Autores: Theodore Konstadinides
• Localización: Yearbook of European Law, ISSN 0263-3264, Vol. 31, Nº. 1, 2012, págs. 227-262
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • Contrary to the ethos of attribution of powers governing the limits of EU competences, the flexibility dause now included in Artide 352 TFEU has demonstrated that the EU has always possessed more powers than those which were specifically conferred on it by me Treaties. The EU has held competences that were necessary for ir to attain its objectives through resort to what some critics have referred to as a means of self-conferral. This chapter will provide an overview of the interpretation and inherent limits of the Treaty's flexibility provision.The analysis provided will help identify the controversy surrounding the historical advance of EU competence beyond conferral. In doing so, the chapter will provide a critical review of the limitations established in the relevant case-law and will discuss the density of legislation emanating from the Treaty's fexibility dause. The discussion will help identify the subsidiary role of current Artide 352 TFEU as a gap-filling or doser cooperation provision within the context of me exercise of competences between the EU and the Member States as well as the difficult lines of demarcation between the TFEU and TEU (former cross-Pillar situations). Finally this chapter will consider the reforms to the flexibility dause introduced by the Treaty of Lisbon. It is argued that political consensus is the driving force behind the flexibility dause. Yet, although in theory Article 352 TFEU allows the application of implied powers in relation to all policies defined in me Treaties, in practice such competence has been superseded by its inherent limitations and the multitude of new legal bases inserted in the Treaty. As such, it falls short of fostering constitutional change outside the remit of the existing terms of the Treaties.