Conflicts of Legal Basis: No Legality and No Basis but a Bright Future under the Lisbon Treaty?

Marcus Klamert

Publication: Scientific journalJournal articleResearchpeer-review


This article's focus is on the two main issues governing the choice of the correct legal basis against the background of changes introduced by the Lisbon Treaty. The first part addresses the Court's over-reliance on preambles in determining the predominant aim of a Union measure in recent case law. In the second part of this article it is examined which procedure should apply when a Union instrument must be based on two or more incompatible legal bases. Contrary to the prevailing opinion, it is argued that neither case law nor considerations of institutional balance can be invoked to claim that the legal basis giving greater rights of participation to the European Parliament must be chosen.
Original languageEnglish
Pages (from-to)497 - 515
JournalEuropean Law Review
Issue number4
Publication statusPublished - 1 Sept 2010

Austrian Classification of Fields of Science and Technology (ÖFOS)

  • 505003 European law
  • 505026 Constitutional law

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