How Cohesion Became the EU's Vehicle for Economic Policy: Tracing the Hidden History of Article 175(3) TFEU

Verfassungsblog, 2023

9 Pages Posted: 28 Aug 2023

See all articles by Päivi Leino

Päivi Leino

University of Helsinki - Faculty of Law

Peter L. Lindseth

University of Connecticut School of Law

Date Written: August 14, 2023

Abstract

This piece explores the roots of a revolutionary transformation in EU law. Cohesion policy—which had heretofore been a policy backwater, aimed at addressing regional disparities—has emerged as the EU’s primary vehicle for reshaping economic and related fiscal policies in the Member States. As a result, any economic or fiscal policy measure that can be plausibly described as a structural reform (primarily an area of Member State competence, subject to Union coordination) can now be reframed as a measure of EU cohesion policy (a shared competence) that can be supported by EU funds to incentivize compliance. How did this happen? One might respond ‘Covid’ and hence NextGenerationEU (NGEU) but that actually would not be exactly right. The revolutionary reinterpretation of Article 175(3) TFEU in fact predated NGEU and was undertaken by the legal services of the EU institutions largely outside of public scrutiny. This post seeks to make this hidden legal evolution visible, by examining previously undisclosed legal analyses of the Council Legal Service (CLS) on this crucial question. These analyses raise considerable concerns regarding whether or how Article 175(3) TFEU, outside the emergency context of NGEU, might ever possibly serve as the basis of a more permanent fiscal and economic-policy capacity in the EU. While the institutional legal services routinely claim that ensuring the quality and objectivity of their advice demands that they remain confidential, the opposite might in fact be true. These opinions need to be exposed to public debate and critique lest they undertake fundamental transformations without the requisite democratic and constitutional legitimation.

Keywords: Cohesion, Council, European Economic and Monetary Union, EMU, Legal Service, NGEU, NextGenerationEU

Suggested Citation

Leino-Sandberg, Päivi and Lindseth, Peter L., How Cohesion Became the EU's Vehicle for Economic Policy: Tracing the Hidden History of Article 175(3) TFEU (August 14, 2023). Verfassungsblog, 2023, Available at SSRN: https://ssrn.com/abstract=4545351 or http://dx.doi.org/10.2139/ssrn.4545351

Päivi Leino-Sandberg (Contact Author)

University of Helsinki - Faculty of Law ( email )

Porthania 5th Floor
P.O. Box 4
Helsinki, FIN-0001 4
Finland

Peter L. Lindseth

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5392 (Phone)
860-570-5242 (Fax)

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