Implied exclusive powers in the ECJ's post-Lisbon jurisprudence : the continued development of the ERTA doctrine

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Abstract

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.
Original languageEnglish
Pages (from-to)1101-1142
JournalCommon Market Law Review
Publication statusPublished - 2018
Externally publishedYes

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