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
    Number of pages42
    JournalCommon Market Law Review
    Volume55
    Issue number4
    Publication statusPublished - 2018

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