¹ See in particular Pollack, Mark A., Creeping Competence: The Expanding Agenda of the European Community, 14(2) Journal of Public Policy 95 (1994); Stephen Weatherill, Competence Creep and and Competence Control, 23 Yearbook of European Law 1, 5–12 (2004).Google Scholar

² Alan Dashwood, The Limits of European Community Powers, 21 European Law Review (ELR) 113, 113 (1996).Google Scholar

³ Id., 128.Google Scholar

⁴ Richard Schütze, From Dual To Cooperative Federalism: The Changing Structure Of European Law 130 (2009).Google Scholar

⁵ The variety of which has been described as an ‘archipelago’ by former Italian Prime Minister and Foreign Minister Lamberto Dini: CONV 1234/02, 19^t June 2002, 6, as cited in Stephen Weatherill, Competence and Legitimacy, in The Outer Limits of European Union Law 19 (C. Barnard & O. Odudu eds., 2009).Google Scholar

⁶ See, e.g. Case 7/71, Commission v. France, 1971 E.C.R. 1003, 1018.Google Scholar

⁷ See Obradovic, D., Repatriation of Powers in the European Community, 34 Common Market Law Review (CMLRev) 59 (1997). Articles 10(4)–(5) of the Protocol on Transitional Provisions to the Lisbon Treaty permit the UK to repudiate existing Third Pillar measures: see Dougan, Michael, The Treaty of Lisbon 2007: Winning Minds, Not Hearts, 45 CMLREV 617, 683 (2008).Google Scholar

⁸ In this article, the term ‘Community’ is used where it is found in existing caselaw and ‘Union’ is used in more general discussion. For the most part, references are to provisions of the European Community Treaty (ECT) (replaced by Lisbon with the Treaty on the Functioning of the European Union or TFEU) and Treaty on European Union (TEU) pre-Lisbon, as the Treaty of Lisbon has only come into effect since 1 December 2009 and so must caselaw pre-date the changes that Lisbon introduced (the Article numbers as amended by Lisbon are also generally given for ease of reference).Google Scholar

⁹ Mayer, Z.C., Competences – Reloaded? The Vertical Division of Powers in the EU and the new European Constitution, 3(2) International Journal of Constitutional Law (IJCL) 493, 493 (2005), noting it is a recurring issue in EU law.Google Scholar

¹⁰ Article 2 TFEU.Google Scholar

¹¹ The Future of the EU: Declaration of Laeken, document of the Belgian presidency, 15 December 2001, part 11A.Google Scholar

¹² Leonor Moral Soriano, Vertical Judicial Disputes over Legal Bases, 30(2) West European Politics 321, 324 (2007).Google Scholar

¹³ See generally J-P. Jacqué, The Principle of Institutional Balance, 41 CMLRev 383, 384 (2004); Alan Dashwood, The Institutional Framework and the Institutional Balance, in 50 Years of the European Treaties: Looking Back and Thinking Forward (Michael Dougan & S. Currie eds., 2009).Google Scholar

¹⁴ The German Federal Constitutional Court has noted that Article 308 ECT could be used to extend competence: Brunner, BVerfGE 89, 155; [1994] 1 CMLRev 57, para. 210.Google Scholar

¹⁵ Opinion 2/94 Re Accession of the Community to the European Convention on Human Rights, 1996 E.C.R. 1–1759.Google Scholar

¹⁶ Id., para. 30.Google Scholar

¹⁷ Gráinne de Búrca & Bruno de Witte, The Delimitation of Powers Between the EU and its Member States, in Accountability and Legitimacy in the European Union 216 (Anthony Arnull & Daniel Wincott eds., 2002).Google Scholar

¹⁸ The Treaty of Lisbon modified this by requiring the consent of the European Parliament. Further, compared to Article 308 ECT, the wording of Article 352 TFEU is broader in referring to the objectives of the Union in toto, not just to the common market. However, as Dougan notes, this may make little practical difference given the broad reading of Article 308: Dougan, supra note 7, 655. Article 352 TFEU also excludes its application to the Common Foreign and Security Policy (CFSP), as well as requiring the Commission to bring proposals to the attention of national parliaments.Google Scholar

¹⁹ Dashwood, supra note 2, 124. Dashwood based his comments on his own experience working in the Council Secretariat.Google Scholar

²⁰ Joseph H.H. Weiler, The Transformation of Europe 100(8) Yale Law Journal (Yale LJ) 2403, 2445–2446 (1991).Google Scholar

²¹ Id., 217. Schütze notes that the extensive use of the provisions runs the risk of subverting the idea of enumerated powers: Schütze, supra note 4, 134.Google Scholar

²² Although Article 308 ECT (now Article 352 TFEU) has hardly ever been articulated officially or in academic discussion as a fallback from lex specialis, Dashwood noted that “There has never been any doubt that the absence of a specific legal basis in the Treaty is a legal condition precedent for recourse to Article 235”, citing Case 242/87, ERASMUS, 1989 E.C.R. 1425: Dashwood, supra note 2, 123.Google Scholar

²³ See de Búrca & de Witte (note 17), 215–216. Unlike Article 308 ECT, Article 95 did not require unanimity in the Council (though as Dashwood, quoted above, indicates, the extent of unanimity as a restraint on Union enterprises of ambition is questionable). See further generally, H.G. Krenzler & C. Pitschas, Progress or Stagnation? The Common Commercial Policy after Nice, 6 European Foreign Affairs Review (EFAR) 291 (2001); Schütze, supra note 4, 143–151.Google Scholar

²⁴ See, e.g. discussion in Schütze, supra note 4, 143, relates ‘establishment’ to the elimination of obstacles to trade and ‘functioning’ to the removal of distortions on competition. Article 114 TFEU now refers to the ‘internal market', instead of common market, though the difference seems slight given the scope of the free movement and competition principles.Google Scholar

²⁵ Case C-350/92, Spain v Council, 1995 E.C.R. I-1985, para. 35. See discussion in Schütze, supra note 4, 144–146.Google Scholar

²⁶ Case C-376/98, Germany v. Parliament and Council, 2000 E.C.R. I-8419.Google Scholar

²⁷ This reasoning is in sharp contrast with that which prevailed in Laval and Viking, discussed further below.Google Scholar

²⁸ Mayer, supra note 9, 501; Dougan, supra note 7, 654; Schütze supra note 4, 144–151. Schütze describes the test in Tobacco Advertising as one of ‘a centre of gravity', 150.Google Scholar

²⁹ As described by Dougan, supra note 7, 654.Google Scholar

³⁰ Article 352 TFEU, which replaces Article 308 ECT, expressly prevents its use to circumvent specific exclusions of harmonization. It provides in paragraph 3 that ‘[m]easures based on this Article shall not entail harmonization of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation”. See Schütze, supra note 4, 150–151, at n. 91.Google Scholar

³¹ Mayer, supra note 9, 501; Dougan, supra note 7, 654.Google Scholar

³² Joined Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat International Foundation v. Council [2008] ECR I-6351,paras. 211, 213, 216, 222–227, 229–230. See generally M. Karayigit, The Yusuf and Kadi Judgments: The Scope of the EC Competence in Respect of Restrictive Measures, 33 Legal Issues of European Integration 379 (2006); Alan Dashwood, Article 308 EC as the Outer Limit of Expressly Conferred Community Competence in Barnard & Odudu (eds.), supra note 5, 41–42. Dashwood suggests that the extension of measures from States, as envisaged in Articles 60 and 301 ECT, to individuals, as provided by the contested measures in Kadi, amounted to the enhancement of an existing mechanism and thus did not go beyond the general framework of the Treaties. Nonetheless, it might be argued that given the punitive effect of the sanctions, their novelty as legal instruments, and the significant qualitative difference with sanctions imposed on States, a stricter approach to construction might have been warranted. The wording of Article 60 ECT has been broadened under Lisbon to include sanctions against natural persons: see Article 75 TFEU.Google Scholar

³³ Case 22/70, Commission v. Council (Re European Road Transport Agreement) (‘ERTA')), 1971 E.C.R. 263, paras. 17–19, 28–31.Google Scholar

³⁴ Case 8/74, Procureur du Roi v. Dassonville, 1974 E.C.R. 837, paras. 5–9; Case 120/78, Rewe-Zentrale AG (Cassis de Dijon), 1979 E.C.R. 649, paras. 8–14.Google Scholar

³⁵ Dashwood suggests that the term ‘internal market’ should be preferred in Article 235 European Economic Community (EEC) Treaty (as Article 308 ECT was numbered pre-Maastricht) to the “notoriously open-textured concept” of a common market: Dashwood, supra note 2, 123. It might be thought that ‘internal market', for instance, would seem not to obviously include, on the surface, external relations. However, as the European Court of Justice (ECJ) has drawn a link between internal and external powers through the doctrine of parallelism, the drafting change might not make much difference in practice, though it seems worth making in principle. By comparison, Article 352 TFEU, introduced by the Lisbon Treaty, refers to neither the ‘common market’ nor ‘internal market’ and instead simply refers to the ‘policies defined in the Treaties', which is possibly broader still than ‘common market'.Google Scholar

³⁶ Weatherill, supra note 5, 19–20, noting that the likelihood of preventing obstacles to free movement as a basis for legislative competence “is so lacking in precision and predictability that … one may readily regard the Court's stance as now more concerned with ‘competence-enhancing'…”.Google Scholar

³⁷ Gareth Davies, Subsidiarity: The Wrong Idea, In the Wrong Place, At the Wrong Time, 43 CMLRev 63, 63, 65 (2006). See also Paul Craig, Competence and Subsidiarity in EU Administrative Law 40–44 (2006); Armin Von Bogdandy & Jürgen Bast, The Union's Powers: A Question of Competence. The Vertical Order of Competences and Proposals for its Reform, 38 CMLRev 227, 238 (2002); Soriano, supra note 12, 329.Google Scholar

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³⁹ See, e.g. Weatherill, supra note 5, 18.Google Scholar

⁴⁰ Mayer, supra note 9, 511. The Convention on the Future of Europe drew up the text of the un-ratified Treaty Establishing a Constitution for Europe (29th October 2004, CIG 87/2/04 REV), which was the basis nonetheless for much of the Lisbon Treaty.Google Scholar

⁴¹ Suggesting that competence claims will necessarily differ from case to case, see Craig, supra note 37, 404. See also Soriano, supra note 12, 325.Google Scholar

⁴² Eugenio Bulygin, On Norms of Competence, 11(3) Law and Philosophy (L. & P.) 201, 201 (1992). See further generally on competence norms: Herbert LA. Hart, The Concept Of Law (2nd ed. 1994); Torben Spaak, The Concept of Competence (1994); Torben Spaak, Norms that Confer Competence, 16(1) Ratio Juris (RJ) 89 (2003), Torben Spaak, Explicating the Concept of Legal Competence, Social Science Research Network Working Paper (2008), available at < http://ssrn.com/abstract=1014402 > (last accessed 31 May 2010). Generally on competence in EU law, see, e.g. Pollack, supra note 1; Dashwood, supra note 2; Obradovic, supra note 7; Krenzler & Pitschas, supra note 23; Von Bogdandy & Bast, supra note 37; de Búrca & de Witte, supra note 17; Gareth Davies, The Post-Laeken Division of Competences, 28 ELR 686 (2003); Alan Dashwood, The Relationship Between the Member States and the European Union, 41 CMLRev 355 (2004); Paul Craig, Competence: Clarity, Conferral, Containment and Consideration, 29 ELR 323–344 (2004); Robin White, Conflicting Competences: Free Movement Rules and Immigration Laws, 29 ELR 385–396 (2004); Weatherill, supra note 1; Stephen Weatherill, Better Competence Monitoring, 30 ELR 23 (2005); Mayer, supra note 9; Derek Wyatt, The Growing Competence of the European Community, 16(3) European Business Law Review (EBLR) 483 (2005); Craig, supra note 37; Karayigit, supra note 32; Soriano, supra note 12; E. Herlin-Karnell, Light Weapons’ and the Dynamics of Art 47 TEU – The EC's Armoury of Ever Expanding Competences, 71(6) Modern Law Review (MLR) 987–1014 (2008); S. Sieberson, Dividing Lines between the European Union AND ITS Member States (2008); D. Eisenhut, Delimitation of EU-Competences under the First and Second Pillar: A View Between ECOWAS and the Treaty of Lisbon, 10(5) German Law Journal (GLJ) 585 (2009); Schütze, supra note 4; Stephen Weatherill, supra note 5; Dashwood, supra note 32; Herwig C.H. Hofmann, Which Limits? Control of Powers in an Integrated Legal System, in C. Barnard & O. Odudu eds., supra note 5.+(last+accessed+31+May+2010).+Generally+on+competence+in+EU+law,+see,+e.g.+Pollack,+supra+note+1;+Dashwood,+supra+note+2;+Obradovic,+supra+note+7;+Krenzler+&+Pitschas,+supra+note+23;+Von+Bogdandy+&+Bast,+supra+note+37;+de+Búrca+&+de+Witte,+supra+note+17;+Gareth+Davies,+The+Post-Laeken+Division+of+Competences,+28+ELR+686+(2003);+Alan+Dashwood,+The+Relationship+Between+the+Member+States+and+the+European+Union,+41+CMLRev+355+(2004);+Paul+Craig,+Competence:+Clarity,+Conferral,+Containment+and+Consideration,+29+ELR+323–344+(2004);+Robin+White,+Conflicting+Competences:+Free+Movement+Rules+and+Immigration+Laws,+29+ELR+385–396+(2004);+Weatherill,+supra+note+1;+Stephen+Weatherill,+Better+Competence+Monitoring,+30+ELR+23+(2005);+Mayer,+supra+note+9;+Derek+Wyatt,+The+Growing+Competence+of+the+European+Community,+16(3)+European+Business+Law+Review+(EBLR)+483+(2005);+Craig,+supra+note+37;+Karayigit,+supra+note+32;+Soriano,+supra+note+12;+E.+Herlin-Karnell,+Light+Weapons’+and+the+Dynamics+of+Art+47+TEU+–+The+EC's+Armoury+of+Ever+Expanding+Competences,+71(6)+Modern+Law+Review+(MLR)+987–1014+(2008);+S.+Sieberson,+Dividing+Lines+between+the+European+Union+AND+ITS+Member+States+(2008);+D.+Eisenhut,+Delimitation+of+EU-Competences+under+the+First+and+Second+Pillar:+A+View+Between+ECOWAS+and+the+Treaty+of+Lisbon,+10(5)+German+Law+Journal+(GLJ)+585+(2009);+Schütze,+supra+note+4;+Stephen+Weatherill,+supra+note+5;+Dashwood,+supra+note+32;+Herwig+C.H.+Hofmann,+Which+Limits?+Control+of+Powers+in+an+Integrated+Legal+System,+in+C.+Barnard+&+O.+Odudu+eds.,+supra+note+5.>Google Scholar

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⁵⁹ More briefly, Soriano makes a similar distinction between enabling (equivalent to competence conferring norms) and standard-setting norms (equivalent to competence norms): Soriano, supra note 12, 323.Google Scholar

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** “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or regional level or local level, but can rather by reason of the scale or effects of the proposed action, be better achieved at Union level”.Google Scholar

** Article 5(3) TEU also refers to Protocol on the Application of the Principles of Subsidiarity and Proportionality. An equivalent clause was included in the Single European Act 1986, inserting Article 130r(4) EEC Treaty, specifically for environmental matters. See Schütze, supra note 4, 248.Google Scholar

¹¹³ See Obradovic, supra note 7, 77–78. A very large body of literature has developed on subsidiarity and the following list refers to the more frequently cited and/or more recent contributions: Theodore Schilling, Subsidiarity as a Rule and a Principle, or: Taking Subsidiarity Seriously, New York University Jean Monnet Working Paper No. 10/1995 (1995); Gráinne de Búrca, The Principle of Subsidiarity and the Court of Justice as an Institutional Actor, 36(2) Journal of Criminal Market Studies 217 (1998); Andreas F⊘llesdal, Subsidiarity and Democratic Deliberation, ARENA Working Papers No. 21/99 (1999); Antonio Estella, The EU Principle of Subsidiarity and ITS Critique (2002); Nick Barber, The Limited Modesty of Subsidiarity, 11(3) ELJ 308 (2005); Matthias Kumm, Constitutionalising Subsidiarity in Integrated Markets: the Case of Tobacco Regulation in the European Union, 12(4) ELJ 503 (2006); Davies, supra note 37; Ester Herlin-Karnell, Subsidiarity in the Area of EU Justice and Home Affairs Law – A Lost Cause?, 15(3) ELJ 351 (2009). See further references in Schütze (2009), 244, n. 7.Google Scholar

¹¹⁴ Case C-233/94, Germany v. European Parliament and Council, 1997 E.C.R. I-2405, paras 26–28.Google Scholar

¹¹⁵ Case C-103/01, Commission v. Germany, 2003 E.C.R. I-5369, paras. 46–47. Similarly, see Case C-491/01, R v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., 2002 E.C.R. 1–11453, paras. 177–185; Case C-154/04, The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd. v. Secretary of State for Health, 2005 E.C.R. I-6451, paras. 106–108.Google Scholar

¹¹⁶ As noted by, e.g. Soriano, supra note 12, 331; Schütze, supra note 4, 254, describing this line of reasoning by the ECJ as an ‘ontological tautology'. This general point was made by the ECJ itself in Tobacco Advertising in relation to the scope of Community competition law, where it observed that if any potential impact on competition was enough to bring a matter within the competence of the Community, its “legislative competence would be practically unlimited”: Case 376/98, Germany v. Parliament, supra note 26, paras. 106–107. Following Case C-300/89 Commission v. Council Titanium Dioxide, 1991 E.C.R. I-2867, para. 23, the ECJ said such an impact must be ‘appreciable': Case 376/98, Germany v. Parliament, id., para. 106. The decision in Kadi seems open to the criticism of not articulating how the appreciable impact standard applied to the inclusion of sanctions against individuals under the First Pillar as an internal market issue: see, Joined Cases C-402/05 P and C-415/05 P, Kadi, supra note 32, paras. 228–231.Google Scholar

¹¹⁷ Estella, supra note 113, 114–115.Google Scholar

¹¹⁸ See, e.g. Craig, supra note 37, 426–427.Google Scholar

¹¹⁹ Kumm, supra note 113. See also Davies, supra note 37, 76–77, noting that the Commission's application of subsidiarity does not give any explicit consideration to national autonomy.Google Scholar

¹²⁰ Kumm, supra note 113, 524.Google Scholar

¹²¹ Id., 520.Google Scholar

¹²² See generally, recently, e.g. Anthony Giddens, Patrick Diamond & Roger Liddle, Global Europe Social Europe (2006); Brian Bercusson, European Labour Law (2^nd ed. 2009), 5–12; Christian Joerges & Florian Rödl, Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval, 15(1) ELJ 1–2 (2009), describing ‘Social Europe’ as “the ensemble of European social and labour law and policy and social rights…. A wide and opaque field…”.Google Scholar

¹²³ See Case 80/70, Defrenne v. Belgian State ('Defrenne I'), 1971 E.C.R. 1-445; Case 43/75, Defrenne v. SABENA (‘Defrenne II'), 1976 E.C.R. 455; Case 149/77, Defrenne v. SABENA, 1978 E.C.R. 1365 ('Defrenne III') interpreting Article 119EEC Treaty (now Article 157 TFEU).Google Scholar

¹²⁴ Case C-438/05, The International Transport Workers’ Federation and The Finnish Seamen's Union v. Viking Line ABP and Oil Viking Line Eesti, 2007 E.C.R. I-10779. The facts concerned collective action taken by a Finnish trade union and by the International transport Workers’ Federation against a Finnish ferry operator, which reflagged a vessel from Finland to Estonia in order to reduce labour costs. The ECJ held that whether such a restriction on the freedom to provide services could be justified in the circumstances was matter for the national court (id., para. 81 onwards) according to the test established in previous caselaw for such restrictions (id., para. 75).Google Scholar

¹²⁵ Case C-341/05, Laval un Partneri Ltd. v. Svenska Byggnadsarbetareföbundet, 2007 E.C.R. I-11767. The facts concerned collective action taken by a Swedish trade union against a Latvian company, which had a Swedish subsidiary to which workers were posted to provide a building service in Sweden, in an attempt by the trade union to enforce the provision of a Swedish collective agreement concerning minimum pay. For academic discussion of Viking and Laval, see, e.g. Anne C.L. Davies, One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ, 37(2) Industrial Law Journal 126 (2008); Alicia Hinarejos, Laval and Viking: The Right to Collective Action versus EU Fundamental Freedoms, 8(4) Human Rights Law Review 714 (2008); Norbert Reich, Free Movement v. Social Rights in an Enlarged Union – The Laval and Viking Case before the ECJ, 9(2) GLJ 125–161 (2008); Rebecca Zahn, The Viking and Laval Cases in the Context of European Enlargement, 3 Web Journal of Current Legal Issues (2008); and from a constitutional perspective, Joerges & Rödl, supra note 122.Google Scholar

¹²⁶ The scope of free movement has also recently become a point of contention in the context of the rights of spouses of EU citizens from third countries: see, e.g. Steve Peers, Free Movement, Immigration Control and Constitutional Conflict, 5(2) European Constitutional Law Review 173 (2009).Google Scholar

¹²⁷ Case C-438/05, Viking, supra note 124, paras. 39–40. See also the Opinion of Advocate General Maduro in Viking, at paras. 23–28; Case C-341/05, Laval, supra note 125, paras. 87–88.Google Scholar

¹²⁸ Case 376/98, Germany v. Parliament, supra note 26, paras. 106–107. See, e.g. Dougan, supra note 7, 654, referring to the ‘new judicial wind’ on competence issues in light of Tobacco Advertising. Google Scholar

¹²⁹ Case C-376/98, Germany v. Parliament and Council, supra note 26, para. 66.Google Scholar

¹³⁰ Criticising the vagueness of the ECJ criteria in Laval and Viking, see Zahn, supra note 124.Google Scholar

¹³¹ Case C-341/05, Laval, supra note 125, para. 70.Google Scholar

¹³² Case C-341/05, Laval, id, the EG held that free movement principles might legitimately be restricted by the fundamental right to strike (para. 57), but that “… however, as regards the specific obligations, linked to signature of the collective agreement for the building sector, which the trade unions seek to impose on undertakings established in other Member States by way of collective action such as that at issue in the case in the main proceedings, the obstacle which that collective actions forms cannot be justified with regard to such an objective” (para 108). When such an objective could have justifying force is unclear. Compared to Viking, the ECJ decision in Laval seems to leave national courts with less autonomy or discretion in balancing the free movement principle with legitimate exceptions (e.g. compare para. 65 in Viking). Google Scholar

¹³³ Case C-67/96, Albany, 1999 E.C.R. I-5751, paras. 59–64. The facts concerned a collective agreement between organisations representing employers and workers setting up a sectoral pension fund to which affiliation was made compulsory.Google Scholar

¹³⁴ See para. 27 of the Opinion of Advocate General Maduro.Google Scholar

¹³⁵ For a broad view as to the scope of Article 81 EC Treaty, suggesting that factors other than purely economic in the narrow sense should be considered relevant, see Whish, Richard, Competition Law (5^th ed. 2003), 152–155.Google Scholar

¹³⁶ See, e. g. Joerges & Rödl, supra note 122, 17–18, criticising the decision on this ground and noting that Advocate General Mengozzi negated too the effects of Article 137(5) ECT.Google Scholar

¹³⁷ Joerges & Rödl, supra note 122, 18.Google Scholar

¹³⁸ Currently, Article 153(5) TFEU (ex Article 137(5) ECT) states that “The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.”Google Scholar

¹³⁹ Joerges & Rödl, supra note 122, 15, and referring to “European usurpation of Member States’ labour constitutions”.Google Scholar

¹⁴⁰ Another significant effect of Laval and Viking was to extend horizontal direct effect to trade unions: see ibid, 13–15; Hinarejos, supra note 125, 722.Google Scholar

¹⁴¹ This section is concerned with external relations arising from what was previously the Community Pillar, rather than with the CFSP. For recent discussion of the boundary line between the CFSP and general external relations pursuant to the common market, see e.g. Eisenhut, supra note 42; Herlin-Karnell, supra note 113.Google Scholar

¹⁴² Case 22/70, ERTA, supra note 33, paras. 17–19, 28–31. The Court also held in ERTA that the implied external competence entailed by the doctrine of parallelism could arise where the Community had not yet exercised any internal competence if Member State action could place in jeopardy or undermine the Community objective sought to be attained, although it seemed to place more weight on the latter requirement in Opinion 1/94 Re WTO Agreement, 1994 E.C.R. I 5267.Google Scholar

¹⁴³ Case 22/70, ERTA, supra note 33, paras. 12,17.Google Scholar

¹⁴⁴ Id., para. 11.Google Scholar

¹⁴⁵ See, e.g. the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Stanislav Galic, IT-98-29-T, Trial Chamber I, 5th December 2003, para. 91. See also Brunno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, 17(3) European Journal of International Law 483, 505, 507 (2006).Google Scholar

¹⁴⁶ Mitchelde S.-O.-L'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy 103–115 (2004).Google Scholar

¹⁴⁷ See, e.g. Dashwood, supra note 42, 357.Google Scholar

¹⁴⁸ See generally Bruno de Witte, Rules of Change in International Law: How Special is the European Community?, 25 Netherlands Yearbook of International Law 299 (1994).Google Scholar

¹⁴⁹ Cases 3, 4 & 6/76, Kramer, 1976 E.C.R. 1279.Google Scholar

¹⁵⁰ Opinion 1/76Re Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels, 1977 E.C.R. 741.Google Scholar

¹⁵¹ Opinion 1/94 Re WTO Agreement, supra note 142, at paras. 85–86.Google Scholar

¹⁵² Opinion 2/91 Re Convention No. 170 International Labour Organisation on Safety in the Use of Chemicals at Work, 1993 E.C.R. I-1061, para. 25.Google Scholar

¹⁵³ See, e.g. Craig, supra note 37, 412.Google Scholar

¹⁵⁴ Case C-467/98, Commission v. Germany, 2002 E.C.R. I-9855. See Craig, supra note 37, 414–415.Google Scholar

¹⁵⁵ Opinion 1/91 Re European Economic Area Agreement I, 1991 E.C.R. 6079.Google Scholar

¹⁵⁶ Id., at 6081–6082.Google Scholar

¹⁵⁷ Jo Shaw, European Union Legal Studies in Crisis? Towards a New Dynamic, 16(2) OJLS 231, 239 (1996).Google Scholar

¹⁵⁸ Valentin Constantinesco, The ECJ as Law-maker: Praeter aut Contra Legem?, in Judicial Review in European Law: Essays in Honour of Lord Slynn, 79 (David O'Keeffe & Antonio Bavasso eds., 2001).Google Scholar

¹⁵⁹ See generally Karen Alter, Who are “Masters of the Treaties”? European Governments and the European Court of Justice, 52(1) International Oraganization 121 (1998).Google Scholar

¹⁶⁰ Opinion 1/03 Re Lugano Convention, 2006 E.C.R. I–1145, paras. 124–126.Google Scholar

¹⁶¹ 1950, ETS no. 05.Google Scholar

¹⁶² Opinion 2/94, supra note 15, para. 30.Google Scholar

¹⁶³ Schütze, supra note 4, 142.Google Scholar

¹⁶⁴ Stephen Weatherill, Activism and Restraint in the European Court of Justice, in Asserting Jurisdiction: International and European Legal Perspectives, 255, 271 (Patrick Capps, Malcolm Evans & Stratos Konstadinidis eds., 2003).Google Scholar

¹⁶⁵ Craig, supra note 37, 408. The question has been superseded by Treaty amendment, with Article 6(2) TEU (post-Lisbon) providing for EU accession to the ECHR.Google Scholar

¹⁶⁶ Opinion 1/94 Re WTO Agreement, supra note 142.Google Scholar

¹⁶⁷ Id., para. 46.Google Scholar

¹⁶⁸ Schütze, supra note 4, 172.Google Scholar

¹⁶⁹ 2001 E.C.R. I–9713. On the facts, the EG in effect applied lex specialis, holding that the environmental provisions of the EC Treaty related to the primary purpose of the international treaty in dispute and thus (ex) Article 175 ECT was the correct legal basis.Google Scholar

¹⁷⁰ Id., para. 23.Google Scholar

¹⁷¹ Case C-459/03, European Commission v. Ireland (‘MOX Plant'), 2006 E.C.R. 1–4635. For discussion, see Cardwell, Paul James, Who Decides? The ECJ Judgment on Jurisdiction in the MOX Plant Dispute, 19(1) Journal of Environmental Law 121 (2006); Nicholas Lavranos, The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?, 19(1) Leiden Journal of International Law 223 (2006); Cesare PR. Romano, ‘(Case Note) Case C-459/03, Commission of the European Communities v. Ireland', 101(1) American Journal of International Law 171 (2007).Google Scholar

¹⁷² December 1982, 1833 UNTS 396.Google Scholar

¹⁷³ Case C-459/03, MOXPIant, supra note 171, para. 154.Google Scholar

¹⁷⁴ See id., para. 130.Google Scholar

¹⁷⁵ In response to Ireland's argument that recourse to UNCLOS could be construed as a method of settlement within the scope of Article 292, the EG simply observed “an international agreement such as the Convention cannot affect the exclusive jurisdiction of the Court”: id., para. 132.Google Scholar

¹⁷⁶ See Soriano, supra note 12, 331, noting with reference to the overall approach of the ECJ to competence (in its interpretation of Articles 95 and 308 ECT and of the subsidiarity principle), “The consequences for member states’ defence of their political interest could not be more negative…”.Google Scholar

¹⁷⁷ The ECJ simply declared the risk to the Community order to be ‘manifest’ even though Ireland had offered an assurance that it would not seek to litigate any provisions of Community law in an arbitral tribunal: Case C-459/03, MOX Plant, supra note 171, para. 154–156. On the latter point, the Advocate General offered somewhat more explicit reasoning, suggesting the fact that provisions of Community law coincided with international rules that Ireland had asked to be adjudicated by a tribunal was enough to breach Article 292 ECT: see Opinion of Advocate General Maduro, 18^th January 2006, para. 51. This line of reasoning, however, has potentially very extensive implications on a broad reading: any rule of international law that coincides with EU law cannot be litigated by a Member State before an international court or tribunal.Google Scholar

¹⁷⁸ Opinion 1/03Re Lugano Convention, supra note 157.Google Scholar

¹⁷⁹ Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988, 28 ILM 620 (1989).Google Scholar

¹⁸⁰ Opinion 1/03, supra note 157, paras. 150–173.Google Scholar

¹⁸¹ Thalia Kruger, Opinion 1/03, Competence of the Community to conclude the new Lugano Convention on the Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 12 Columbia Journal of European Law 189, 198–199 (2006–2007).Google Scholar

¹⁸² Obradovic, supra note 7, 84–85; Soriano, supra note 12, 333.Google Scholar

¹⁸³ On the application of Article 308 ECT in this more specific sense, see Schütze, supra note 4, 136–137.Google Scholar

¹⁸⁴ Dashwood (2004), supra note 42, 380.Google Scholar