Abstract
Article 117 TFEU belongs to the chapter of the Treaty dedicated to law approximation, but—unlike all other four articles (Articles 114, 115, 116 and 118 TFEU) of the same chapter—it does not include any prerogatives whatsoever that would allow the adoption of approximation legislation on the EU level (→ para 2). Moreover, a combined reading of Articles 116 and 117 TFEU (→ Article 116 TFEU para 18) reveals that the latter—even if only by double reference (in both paragraphs) to it – is, in various aspects, subsidiary to the former and, more generally, interdependent with it (→ para 3).
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Notes
- 1.
For a more detailed review of other examples of subsidiarity between different provisions of the EU primary law, see Klamert (2014).
- 2.
For more details concerning the cross-cutting nature of the Union’s law approximation policy, see Ćemalović (2015), pp. 246–251.
- 3.
- 4.
Case 94/74, IGAV v ENCC (ECJ 18 June 1975) para 33–34.
- 5.
For an analysis of the risk of competition distortion in the legislative negotiation related to the services of general economic interest, see Wehlander (2016), pp. 228–240.
- 6.
Case 22/71, Béguelin Import Co. v S.A.G.L. Import Export (ECJ 25 November 1971) para 16.
- 7.
The notion of “change” is to be understood here in a broader sense, in order to encompass both the introduction of a new provision and the modification of an existing one.
- 8.
E.g., in Case C-524/14 P, Commission v Hansestadt Lübeck (Opinion of AG Wahl of 15 September 2016) para 64: “As the Commission has pointed out, it is apparent from the scheme and origin of the Treaties that a distinction must be drawn between general measures of fiscal or economic policy (which now fall within the scope of Articles 113 and 115 to 117 TFEU) and specific measures which lead to the acquisition of advantages by means of State resources (which are, for their part, now covered by Articles 107 to 109 TFEU).”
- 9.
In the EU competition law stricto sensu, “although Article 288(5) TFEU states that soft law does not have any binding force, it still may have an effect on the application of the EU competition rules by national competition authorities and courts”, Lorenz (2013), p. 33; for further analysis, see Sauter (2016), Patel and Schweitzer (2013).
- 10.
Case C-207/01, Altair Chimica v ENEL Distribuzione (ECJ 11 September 2003) para 41 (emphasis added).
- 11.
For a comprehensive overview of the complex and mutating role of the Commission in the EU’s legal order, see Jacqué (2016).
- 12.
For interplay between the law approximation policy and the conditionality in the EU enlargement process, see Ćemalović (2020), p. 186 et seqq.
References
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List of Cases
List of Cases
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ECJ 25.11.1971, 22/71, Béguelin Import Co. v S.A.G.L. Import Export, ECLI:EU:C:1971:113 [cit. in para 7]
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ECJ 18.06.1975, 94/74, IGAV v ENCC, ECLI:EU:C:1975:81 [cit. in para 5]
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ECJ 11.09.2003, C-207/01, Altair Chimica v ENEL Distribuzione, ECLI:EU:C:2003:451 [cit. in para 13]
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