Does the Emperor Really Have New Clothes? A Critical Assessment of the Post-Lisbon Regime of Division of Competences

Abstract

This article argues that the reform of competences introduced by the Lisbon Treaty can be regarded neither a real revolution nor even a considerable evolution, since it is of a strong conservative nature. That being said, the transformation of the legal framework of the vertical division of powers did not establish a qualitatively new regime. It only systematized and codified the achievements of the earlier case law of the European Court of Justice and some former treaty provisions. However, the real achievement of the changes is the introduction of a federal attitude and vocabulary. The text of both the Treaty on the European Union and Treaty on the Functioning of the European Union relies on essential terms rooted in federalism such as for instance ‘exclusive’, ‘shared’ or ‘member state’ competences. Therefore, the distribution of powers between the Union and the member state is articulated in a clear federal way. Indeed, it can be regarded a real novelty compared with the prior-Lisbon regime evolving in the context of delicate and sophisticated political and judicial compromises. Lastly, although the new regime was obviously inspired by a federal mindset, it cannot be equated with a real federative government. The supranational level is incomparably ‘weaker’ and less powerful in substantive terms than the central governmental level of real federations. Many important competences that would make the EU a real and functioning federal state are still lacking.

Keywords: European Union, Constitutional Law of the European Union, Competences, Division of Competences, Reform of Competences