Legal Bases in the European Union: An Analysis of pre- and post-Lisbon conflicts across the pillars

Abstract

This thesis explores the structure of legal bases according to competences, instruments, and procedures; as well as legal basis litigation in the European Union before and after the introduction of the Treaty of Lisbon. Its main contribution lies in the analysis of general criteria for legal basis litigation as they have been developed under supranational EU law. It discovers several flaws inherited in the quest for the correct legal basis on the grounds of overlapping competences, divergent inter-institutional interests, and inconsistencies in the courts’ judgements. In addition, the previous pillar structure of the EU has also led to cross-pillar litigation which is particularly the case in the area of external relations.

With the introduction of the Treaty of Lisbon, the previous pillar structure has been abolished and the former third pillar has been integrated into the realm of supranational EU law. While the intergovernmental sphere is thus minimised to the area of common foreign and security policy, legal basis conflicts will continue to occur between this area and the TFEU as well as within the TFEU itself. In addition, the Lisbon Treaty has even created new problems concerning the choice of the correct legal basis, most notably as regards the newly codified competence categories as well as the new hierarchy of legal instruments. This may require the development of new criteria for legal basis litigation in order to guarantee legal certainty in these areas for future cases.