Drawing the line between Circumvention and Gap-Filling: An Exploration of the Conceptual Limits of the Treaty’s Flexibility Clause

Summary:

This article will provide an overview of the interpretation and inherent limits of the flexibility clause in Article 352 of the Treaty on the Functioning of the European Union (TFEU).

The analysis provided will help identify the controversy surrounding the historical advance of EU competence beyond conferral. In doing so, the article will provide a critical review of the limitations established in the relevant case-law and will discuss the density of legislation emanating from the Treaty’s flexibility clause. The discussion will help identify the subsidiary role of current Article 352 TFEU as a gap-filling or closer cooperation provision within the context of the exercise of competences between the EU and the Member States as well as the difficult lines of demarcation between the TFEU and TEU. Finally this chapter will consider the reforms to the flexibility clause introduced by the Treaty of Lisbon.