Suchergebnisse

This Article compares the implementation of EMU law with the framework governing the implementation of EU law in general to determine whether that general framework has been complemented, adapted or transformed by the developments in the area of EMU Law. This Article finds that the legal framework governing the implementation of EMU law indeed deviates from the default framework. However, part of the sui generis framework for implementing EMU law is constitutionally mandated. On the other hand, it is less clear whether the ECB is entitled to supplement legislation or whether in fact it can only implement legislation. A second problematic aspect that this Article identifies is the significant role that the Council takes in implementing EMU law. Finally, it is in the area of EMU law that the Court identified a distinct type implementing power that is not covered by art. 291 TFEU or by other explicit legal bases in the Treaties that directly confer an executive power on the Council. The new type of power is not necessarily restricted to EMU law and can in principle be identified in other areas of EU law, showing the ramifications that the development of EMU law has on other areas of EU law.

This Article gives an overview of the legal framework governing the exercise of the delegated and implementing powers foreseen in Articles 290 and 291 TFEU in light of the most recent jurisprudence of the EU Courts in this field. It clarifies what essential elements are under Article 290 TFEU, how the Courts test this requirement and how it relates to the requirement under Article 290 TFEU that a delegation must also be specific. The article subsequently discusses and compares the control regimes in place under Articles 290 and 291 TFEU, noting that in post-Lisbon institutional practice they have evolved towards each other. Linked to this is the question how delegated and implementing powers differ. In light of the Court's jurisprudence the article concludes that it is up to the legislature to make this distinction and that the legislature can also create executive powers outside the framework of Articles 290 and 291 TFEU and grant them to EU agencies. The article concludes by flagging some open questions which the Court has not resolved yet.

Abstract
Provisional application has become a quasi-automatic corollary to the signature of mixed bilateral European Union (EU) agreements. Resort to provisional application is thereby informed by a rationale hitherto unknown in international law: it allows federal polities where the federal level does not have exclusive treaty making powers to develop an effective external action that is not hindered by that polity's complex internal division of competences. This article argues that the EU has also developed a rather consistent practice in relation to provisional application. The EU thereby distinguishes between its treaty partners whereby some of them simply agree that the EU unilaterally determines the scope of provisional application. Because of the reference to the EU's internal division of competence, the internal law of the parties, something that is typically not relevant under international law, acquires legal significance. The EU's practice is found to be largely in line with the Draft Guidelines on Provisional Application that are being elaborated by the International Law Commission, although clearly it is also more refined on some points. Lastly, the article identifies one pressing issue which requires clarification, and which is not properly addressed in the Draft Guidelines. That is the question on the fate of the provisional application by the EU of part of a mixed agreement where one individual EU member state has decided not to ratify that agreement.

Provisional application has become a quasi-automatic corollary to the signature of mixed bilateral European Union (EU) agreements. Resort to provisional application is thereby informed by a rationale hitherto unknown in international law: it allows federal polities where the federal level does not have exclusive treaty making powers to develop an effective external action that is not hindered by that polity's complex internal division of competences. This article argues that the EU has also developed a rather consistent practice in relation to provisional application. The EU thereby distinguishes between its treaty partners whereby some of them simply agree that the EU unilaterally determines the scope of provisional application. Because of the reference to the EU's internal division of competence, the internal law of the parties, something that is typically not relevant under international law, acquires legal significance. The EU's practice is found to be largely in line with the Draft Guidelines on Provisional Application that are being elaborated by the International Law Commission, although clearly it is also more refined on some points. Lastly, the article identifies one pressing issue which requires clarification, and which is not properly addressed in the Draft Guidelines. That is the question on the fate of the provisional application by the EU of part of a mixed agreement where one individual EU member state has decided not to ratify that agreement.

Even though EU agencies are poorly embedded in the EU's constitutional framework their proliferation continues. If and when these agencies establish relations with international counterparts, they sometimes also conclude arrangements or agreement with those counterparts. This brings together two constitutionally problematic issues: the EU's external action and the limits to the empowerment of EU agencies. This article aims to identify the constitutional and positive law frameworks applying to EU agencies' external action, and looks at a number of examples. It is shown how the positive law framework does not properly reflect the requirements of EU constitutional law, resulting in legal ambiguity and accountability problems. Some EU agencies seem to go beyond what is allowed under the positive and constitutional law frameworks.

Already early on in the EU integration process the ECJ accepted the idea of implied exclusive powers: in ERTA, it ruled that Member States may lose the power to conclude international agreements if and when the EU has acted internally on the matter. This idea of "supervening exclusivity" was further developed in subsequent ECJ case law and finally recognized in primary law through codification in Article 3(2) TFEU. The present article reconstructs the Court's pre-Lisbon jurisprudence using different building blocks: the telos and nature of supervening exclusivity, the species of "common rules" and the notion of "affecting". Reconceptualizing the ERTA doctrine, the article argues that the ERTA effect is a form of obstacle pre-emption. In a second part, the article looks at the (dis)continuity of the application of the ERTA doctrine in the Court's post-Lisbon case law, finding that there is coherence in the sense that obstacle pre-emption is still a valid prism through which to look at the ERTA doctrine but at the same time the threshold for finding an EU exclusive competence has been lowered.

The question of the extent to which EU institutions can grant powers to EU decentralised agencies has been the subject of inter-institutional and academic debate for decades. Only in 2014 did the Court of Justice itself settle the issue, confirming the constitutionality of ongoing agencification and allowing for its future development. The present article identifies a number of lessons which the EU legislature should draw from the Court's Short-selling ruling. In addition a number of issues which have not yet been resolved by the Court but which may pose themselves in the future are identified. These relate to the nature of the discretion afforded to EU agencies, the nature of the acts which they adopt (in light of Articles 290 and 291 TFEU) and the new trend of allowing for direct delegations of power between national authorities and their EU counterparts.