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Über dieses Buch

This book provides the first comprehensive discussion of conflicts between legal bases in EU law. It fills an important gap in the existing literature on the choice of legal basis in EU law by analysing the structure of legal bases and the resulting legal basis litigation in the European Union, thus identifying areas of conflict produced by overlapping competences, divergent inter-institutional interests, and inconsistencies in the courts’ judgements. While certain cases have been discussed extensively in academic literature (e.g. Tobacco Advertising, ECOWAS), there has been little analysis of the general underlying criteria and principles governing the choice of legal basis on the part of European institutions. Such an analysis has, however, become necessary in order to better understand and possibly predict judicial outcomes, and to identify flaws in the current legislative framework.



Chapter 1. Introduction

Legal bases are treaty provisions which confer powers to the legislative organs of the European Union in order to pass legislation. Every legislative/non-legislative act has to be based on at least one legal basis. The choice of the correct legal basis may sometimes create tensions between the different institutions due to their competing interests and the inevitable competence overlaps inherited in the legal bases. Such competence conflicts often reach the European courts in the form of legal basis litigation. The courts have had to develop general principles to solve these kinds of judicial review cases in order to provide guidance for future case law. This section will provide a brief overview of the main aspects to bear in mind as regards legal bases and legal basis litigation before looking at the outline of the book.
Annegret Engel

Chapter 2. Conflicts Between the Union’s Different Types of Competences

EU law provides a vast variety of different provisions in various policy areas. Unfortunately, the delimitation between these provisions is not always clearly defined. Therefore, in some cases it may happen that a proposed measure could be adopted on two or more legal bases. In general, the legal basis of a measure determines inter alia the type of competence for the actors involved, i.e. who is acting and to which extent. It is thus necessary to look at these differences in competences as they constitute the basis for the courts’ analysis in legal basis litigation, including flaws in the approach taken by the courts and the suggestion for new criteria of legal basis litigation.
Annegret Engel

Chapter 3. The Choice of Legal Instrument: A Choice of Legal Basis?

This Chapter discusses the different instruments of secondary EU law, their legal effects and the choices made by the institutions when giving effect to policies. It aims to provide an analysis of the overlaps and conflicts between the various EU legal instruments and the resulting inter-institutional disputes. It further evaluates the Court’s approach when scrutinising such cases for their correct choice of legal instrument and recommends the application of general criteria of legal basis litigation in order to provide a maximum degree of legal certainty.
Annegret Engel

Chapter 4. The Choice of Legislative Procedure: A Matter of Institutional Preference?

This Chapter discusses the various procedural requirements provided for in the treaty provisions, assigning different degrees of involvement for the key actors in the legislative/non-legislative process. The European institutions have an interest in maximising their own influence as well as restricting those of other institutions involved which may have an impact on the choice of legal basis. The Chapter aims to provide an analysis of the potential conflicts between legal bases due to procedural differences and the resulting inter-institutional disputes. It further evaluates the courts’ approach taken and the criteria developed to reflect such different procedural requirements and institutional interests in legal basis litigation.
Annegret Engel

Chapter 5. The Sui Generis Nature of External Competences

External relations and the respective competences have in the past been divided and distributed over three pillars, which informally continues to be the case in the post-Lisbon era: Despite the integration of the former third pillar into the realm of supranational EU law, the field of external relations is still governed by supranational and intergovernmental provisions at once. On the one hand, the Union is equipped with supranational powers to regulate in the external relations sphere. On the other hand, the area of common foreign and security policy has been established which grants Member States competences in external relations. Despite the codification of different types of competence by the Lisbon Treaty, institutional practices continue to blur the lines in the quest for the correct choice of legal basis. As a result, legal basis litigation in this area may easily receive a cross-pillar dimension, particularly since international agreements rarely fall within one policy area only.
Annegret Engel

Chapter 6. Conclusions

Overall, the above discussions have shown that the choice of legal basis for acts in the EU is not a straightforward undertaking. Quite the opposite is the case. There are several factors which can render the quest for the correct legal basis more (or in some cases less) complicated. In particular, these include the existence of overlaps between the competences available in the treaties and the divergent institutional preferences. Therefore, depending on the differences in the structure of potentially available legal bases (i.e. the nature and scope of the competence, the legal instruments, and the legislative or decision-making procedures), inter-institutional conflicts can easily arise. The resulting legal basis litigation may further contribute to the overall complexity of the choice of legal basis by means of the inherent flaws and inconsistencies in the courts’ judgments and their application of general criteria of legal basis litigation.
Annegret Engel
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