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Unlocking the potential of the EU Treaties: An article-by-article analysis of the scope for action

Written by Etienne Bassot,

© European Union, 2020

The Treaty of Lisbon is the current legal foundation for the work of the European Union and its institutions. Although there has recently been no general debate within the EU institutions on the revision of the Treaties, some suggest this as a means of facilitating the recovery from the coronavirus pandemic, although others see the crisis as a reason not to discuss Treaty changes. Nonetheless, senior EU politicians have in recent months hinted at the possibility of expanding Parliament’s powers. That said, given that the ordinary procedure for revision of the Treaties is cumbersome and lengthy, and that the simplified procedure cannot be used to broaden EU competences, it makes sense to explore possibilities for unlocking the full potential of the existing Treaties as they stand.

Characteristically, European citizens are less concerned about how precisely the EU institutions operate, than whether the Union is capable of delivering on specific policy issues of importance to them, such as consumer protection, free movement of citizens, irregular migration and combatting transnational crime and terrorism, and now of course health too. Even in matters which lie at the heart of state sovereignty as traditionally conceived – such as the broad domain of the Area of Freedom, Security and Justice – large proportions of EU citizens would like to see more EU action. The expectations of the European public therefore represent an important guideline for the European institutions, and delivering upon such expectations, within the Treaty framework, contributes to enhancing the EU’s democratic legitimacy. In this vein, the present study explores the possibilities for unlocking the full potential of the legal bases already available to the Union, with a view to better delivering on citizens’ expectations. 

The European Union is a community of law, and therefore any action or measure undertaken by the Union institutions – whether legislative or non-legislative – no matter how much it is needed or how much citizens demand it, must have a solid legal basis in the Treaties. This is in line with the well-established principle of legality, which is a key component of the ‘rule of law’ principle. In the EU context of multilevel governance, the principle of legality is connected with the principle of conferral, meaning that the EU enjoys only such competences as have been explicitly conferred upon it by the Member States in the Treaties. Therefore, the EU co-legislators – the European Parliament and the Council of the EU – are bound by the will of the Member States, expressed in the Treaties, laying down the precise fields of potential EU legislative activity. Such rules are referred to, especially when it comes to enacting EU legislation, as legal bases. For the purposes of this paper, EPRS policy analysts have identified and analysed those legal bases which can be described as either unused or under-used. However, it must be remembered that the Treaties should not be read independent of their changing context. A ‘static interpretation’, sticking to the ‘original’ intent of the drafters, would quickly find itself out of touch with the changed context, both within the EU and in the wider world. The Treaties, including the legal bases for EU action, should therefore be interpreted dynamically, in order for the EU to be able to address new challenges.

The study is based on legal analysis of the relevant Treaty articles and on policy analysis focused on current challenges, and how they could be addressed through more EU action. Obviously, it is up to policy-makers to decide which legal basis should be used to further action and what kind of EU action is needed. Our intention has been to demonstrate that there are still unused or under-used possibilities for the EU institutions to deliver even more in terms of citizens’ expectations and meeting current challenges. The outcome of the project, in the form of a systematic overview of the 50 under-used, or even unused, legal bases should be seen as a kind of toolbox for political decision-makers. The possible forms of EU action that have been identified might take not only the most obvious one of legislation (i.e. adoption of directives or regulations), but also improving procedural mechanisms (e.g. moving beyond unanimity and unlocking the ordinary legislative procedure though the use of passerelle clauses), enforcing delivery of legislation which already exists but the potential of which remains to be fully tapped, enhancing complementary administrative capacity at EU level (e.g. a European Anti-Fraud Corps), and finally, increasing financing in a given policy area.

Read the complete study on ‘Unlocking the potential of the EU Treaties: An article-by-article analysis of the scope for action‘ on the Think Tank pages of the European Parliament.

Read the previous version of this study.

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