ACTA & European Union perspectives
Författare
Summary, in English
Abstract in Undetermined
Professor Mylly suggests that the Lisbon Treaty opens a new avenue for the Commission when the internal legislative pathway becomes too complicated, demanding unanimity in decision-making. An alternative route would be to use the competence to enter into international agreements, where qualified majority is enough. The agreements may be phrased in such a way that they have direct effect and thereby introduce the legislation through the back door. Articles 215 – 219 TFEU and the CJEU case law seems to support the position. Even if the Agreement is not self-executing it mandates an interpretation in conformity with its content and thereby affects the legislative environment in the Union.
Professor Mylly abstains from drawing conclusions. The crucial question is if it would be acceptable that the Commission deliberately selects this route to introduce new legislation in the Union?
I think not. Is this not the perfect example of when a Union act could be attacked under the Treaty. Article 263 stipulates the four basis for such an attack – one of them being the “Detournement de povoir”. Would the Commission not misuse its powers if it can be clearly established that the purpose with entering into international an agreement is to evade the procedure established for internal law making. Could a strong argument not be made against such a practice?
Professor Mylly suggests that the Lisbon Treaty opens a new avenue for the Commission when the internal legislative pathway becomes too complicated, demanding unanimity in decision-making. An alternative route would be to use the competence to enter into international agreements, where qualified majority is enough. The agreements may be phrased in such a way that they have direct effect and thereby introduce the legislation through the back door. Articles 215 – 219 TFEU and the CJEU case law seems to support the position. Even if the Agreement is not self-executing it mandates an interpretation in conformity with its content and thereby affects the legislative environment in the Union.
Professor Mylly abstains from drawing conclusions. The crucial question is if it would be acceptable that the Commission deliberately selects this route to introduce new legislation in the Union?
I think not. Is this not the perfect example of when a Union act could be attacked under the Treaty. Article 263 stipulates the four basis for such an attack – one of them being the “Detournement de povoir”. Would the Commission not misuse its powers if it can be clearly established that the purpose with entering into international an agreement is to evade the procedure established for internal law making. Could a strong argument not be made against such a practice?
Avdelning/ar
Publiceringsår
2013
Språk
Svenska
Fulltext
Dokumenttyp
Konferensbidrag
Ämne
- Law
Nyckelord
- ACTA
- internationell privaträtt
- private international law
Conference name
ACTA conference - Nätverket för Europarätt
Conference date
2013-02-26
Status
Unpublished