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EU Powers Under External PressureHow the EU's External Actions Alter its Internal Structures$
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Christina Eckes

Print publication date: 2019

Print ISBN-13: 9780198785545

Published to Oxford Scholarship Online: March 2019

DOI: 10.1093/oso/9780198785545.001.0001

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Consequences of Choosing an External Legal Basis

Consequences of Choosing an External Legal Basis

(p.113) 4 Consequences of Choosing an External Legal Basis
EU Powers Under External Pressure

Christina Eckes

Oxford University Press

Chapter 4 discusses the constitutional consequences of the choice of legal basis in the context of external relations. The Union and its Member States are interlocked in a tight embrace, which leads to a far more complicated power division than may appear from a straightforward reading of the Treaty provisions on competences. The choice of the appropriate legal basis is the legal emanation of political power struggles between the Member States and the Union and among the EU institutions. The chapter identifies situations, in which the fact that law-making moves from the internal EU sphere to the external (i.e. international) sphere places more far-reaching restrictions on the Member States’ exercise of powers than would apply internally. It also argues that clarity in attributing responsibilities is a foundational requirement for bonding structures in a divided representative democracy, in which individuals are represented as EU citizens and national citizens. An adequate level of clarity on who is responsible for what is a necessary, albeit insufficient, condition for feeling represented and for limiting the ability of representatives to deny responsibilities. Finally, the chapter illustrates how the international obligations of the Member States are vested with the particular bite (i.e. effectiveness) of EU law when the question of who should take action, which is at the centre of the choice of legal basis, is avoided by concluding a mixed agreement. This limits the scope of manoeuvre of Member States as international actors.

Keywords:   external legal basis, choice of legal basis, cross-Treaty legal basis, mixed agreements, centre of gravity test, dual legal basis, parallel competences, pre-emption, geographical scope, bonding structures

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