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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

Abstract

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.

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

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References

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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.

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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.

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74 Weatherill (n 51).

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

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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.

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81 Curtin (n 52).

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

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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: http://uaces.org/documents/papers/0901/o_neill.pdf.

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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