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Abstract:
The law concerning the choice of legal basis represents
an important constitutional development in Community
law. The European Court of Justice (ECJ) has through
its case-law shaped and defined the boundaries between
the European Union and its Member States and between
the actors involved in the lawmaking process of the European Union. This article is based on three levels of
analysis of this case-law. It argues that a “sensitiveness”
reading of four high-profile cases on the choice of legal
basis and Community internal and external competence
could help explain these cases as well as more recent legal
developments. The four cases, Titanium Dioxide, Waste,
Tobacco Advertising and Environmental Crimes, were ruled
upon in different time periods and exemplify different
types of competence battles. According to this analysis
the Environmental Crimes case from 2005, which highlights
the division of competence between the pillars and
the supranational and intergovernmental elements of the
European Union, is neither a result of spillover, nor activist leapfrogging between pillars. In contrast, it should be read in the light of the unison will of the Member States as pronounced in a Treaty change, not necessarily yet in force. Arguably, such a rule of sensitive interpretation falls within the ambit of the current Treaties, although seeking guidance in changes not necessarily yet in force.
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