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The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

Published online by Cambridge University Press:  27 October 2017


The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

Research Article
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2013

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1 Teleological or purposive interpretation means in this context interpretation in accordance with the rationale of the provision or the policy aim underlying the rule. See Hesselink, M, ‘A Toolbox for European Judges’ (2011) 17 European Law Journal 441 CrossRefGoogle Scholar.

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12 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council and UK v Yassin Abdullah Kadi, Advocate General Opinion Bot, 19 March 2013, unreported. AG Bot opined that the principle of judicial review laid down by the CJEU in Kadi I requires further clarification.

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26 See, eg, Press Release, ‘Cooperation in Disaster Management: The European Union and the United States Take a Major Step Forward’, IP/11/1365.

27 Viking (n 13); Case C-341/05 Laval [2007] ECR I-11767.

28 European Commission, ‘Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services’ COM (2012) 130 final. The proposal was halted by national parliaments, which utilised the so-called ‘yellow card’ procedure. Article 12 TEU and Protocol 2 of the Lisbon Treaty provide that a third of national chambers can raise such an objection on the basis of the violation of the principle of subsidiarity. Therefore, the Proposal must now be reviewed by the Commission.

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42 Case 22/70 Commission v Council [1971] ECR 263.

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56 A Faber, ‘Theoretical Approaches to EU Deepening and Widening: A Multi-disciplinary Overview and Some Tentative (Hypo)theses’ (EU-CONSENT Project Publications, 2006). Available at: See also Shaw, J, ‘Flexibility in a Reorganized and Simplified Treaty’ (2003) 40 CML Rev 279 Google Scholar.

57 J Shaw, ‘Relating Constitutionalism and Flexibility in the European Union’ in de Búrca and Scott (n 53) 353.

58 Other forms of differentiated integration include the CSDP-oriented structured cooperation, found in arts 42(6) and 46 TEU (and Protocol 10), which gives the opportunity to a group of Member States entrusted under art 44 TEU to unilaterally implement the so-called Petersberg tasks concerning humanitarian and rescue assignments, peacekeeping and combat tasks in crisis management.

59 See generally Rosas, A and Armati, L, EU Constitutional Law (Oxford, Hart Publishing, 2010) ch 7 Google Scholar; Piris, JC, The Future of Europe, Towards a Two-Speed Europe (Cambridge, Cambridge University Press, 2012) ch 1 Google Scholar.

60 See also Weatherill (n 51) 21–40.

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63 In all areas except criminal law, which is discussed below.

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65 Joined Cases C-274/11 and C-295/11 Spain and Italy v Council (ECJ, 16 April 2013).

66 Council Decision 2011/167/EU authorising enhanced cooperation in the area of the creation of unitary patent protection [2011] OJ L76/53.

67 Enhanced cooperation is traditionally considered to lie in the same pathway as EU subsidiarity as it accepts that there is room for action outside the EU model. See also Weatherill (n 51) 21.

68 Spain and Italy v Council (n 65) [66].

69 See, eg, Case C-210/03 Swedish Match [2004] ECR I-11893. The CJEU stressed that while mere disparities between national rules cannot justify recourse to art 114 TFEU, it is sufficient where there are differences between the laws, regulations or administrative provisions of the Member States which could obstruct fundamental freedoms and thus have a direct effect on the functioning and establishment of the internal market.

70 Press Release ‘A First in EU History: Enhanced Cooperation to Help International Couples is in Force’, IP/10/1035. Available at: See also Council Decision of 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L189/12.

71 Member States who wish to establish enhanced cooperation between themselves in one of the areas covered by the treaties, but for fields of EU exclusive competence and the CFSP shall address a request to the Commission, specifying the scope and objectives of the enhanced cooperation in question. Authorisation to proceed with such enhanced cooperation shall be granted by the Council (acting by qualified majority), on a proposal from the Commission and after obtaining the consent of the European Parliament.

72 Council Decision (n 70). See also Peers, S, ‘Divorce, European Style: The First Authorisation of Enhanced Cooperation’ (2010) 6(3) European Constitutional Law Review 339 CrossRefGoogle Scholar. It should perhaps be mentioned that a second authorisation of enhanced cooperation was adopted in March 2011 ([2011] OJ L76/53) and concerns a non-Justice and Home Affairs area (Unitary Patent Protection). On this, see Peers, S, ‘Mission Accomplished? EU Justice and Home Affairs Law After the Treaty of Lisbon’ (2011) 48(3) CML Rev 661 Google Scholar.

73 Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection [2011] OJ L76/53. There is currently a case pending for the annulment of this decision: Case C-295/11 Italian Republic v Council of the European Union [2011] OJ C232/21. Italy argues, inter alia, that the enhanced cooperation procedure was authorised by the Council outside the limits provided for in the first subparagraph of art 20(1) TEU, according to which such a procedure is to be allowed only within the framework of the EU’s non-exclusive competences. Italy argues that the EU has an exclusive competence to create ‘European rules’ which have art 118 TFEU as their legal basis.

74 Weatherill (n 51).

75 Convention between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria, signed in Prüm, Germany on 27 May 2005.

76 The Schengen Agreement of 1985. See generally Peers, S, EU Justice and Home Affairs (Oxford, Oxford University Press, 2006) ch 1 Google Scholar.

77 See generally European Union Committee, Prüm: An Effective Weapon Against Terrorism and Crime? (HL 2006-07, 90-I). Available at:

78 See, eg, Peers (n 76) ch 9.

79 See, eg, Herlin-Karnell, E, ‘Enhanced Cooperation and Conflicting Values: Are New Forms of Governance the Same as Good Governance?’ in Trybus, M and Rubini, L (eds), After Lisbon: The Impact of the New Treaty on European Union (Cheltenham, Edward Elgar, 2012) ch 8 Google Scholar.

80 Title V TFEU. See especially Arts 82–86 TFEU.

81 Curtin (n 52).

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86 Spain and Italy v Council (n 65).

87 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1.

88 Ibid. For a detailed account of the transitional rules, see Peers (n 76) 82–83.

89 Travis, A, ‘EU Policing and Justice Opt-Out Would Endanger Internal Security, Lords WarnThe Guardian (London, 23 April 2013)Google Scholar.

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91 Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (Third Money Laundering Directive) [2005] OJ L309/15.

92 Case C-77/05 UK v Council ECR I-11459; Case C-137/05 UK v Council [2007] ECR I-11593.

93 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1. See also E Fahey, ‘Jagged-Edged Jigsaw: The Limits of Multi-speed Integration and Policy Choices of Ireland and the UK’ in Trybus and Rubini (n 79).

94 Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States [2004] OJ L385/1.

95 Above n 92.

96 See also M O’Neil, ‘EU Cross-border Policing Provisions, the View from One of the Schengen Opt Out States’ (2009) European Journal of Crime, Criminal Law and Criminal Justice. Available at:

97 Wessel, R, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1135 Google Scholar; Van Elsuwege, P, ‘EU External Action After the Collapse of the Pillar Structure: In Search of a New Balance Between Delimitation and Consistency’ (2010) 47 CML Rev 987 Google Scholar.

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99 Case C-482/08 UK and Ireland v Council (ECJ, 26 October 2010). See also Faber (n 56); Shaw, J, ‘Flexibility in a “Reorganised” and Simplified Treaty’ (2003) 40(2) CML Rev 279 Google Scholar.

100 See also Harlow, C, ‘A Common European Law of Remedies?’ in Kilpatrick, C et al (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 69 Google Scholar.

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