Implied exclusive powers in the ECJ’S post-Lisbon jurisprudence: The continued development of the ERTA doctrine

Abstract

Already early on in the EU integration process the ECJ accepted the idea of implied exclusive powers: in ERTA, it ruled that Member States may lose the power to conclude international agreements if and when the EU has acted internally on the matter. This idea of “supervening exclusivity” was further developed in subsequent ECJ case law and finally recognized in primary law through codification in Article 3(2) TFEU. The present article reconstructs the Court’s pre-Lisbon jurisprudence using different building blocks: the telos and nature of supervening exclusivity, the species of “common rules” and the notion of “affecting”. Reconceptualizing the ERTA doctrine, the article argues that the ERTA effect is a form of obstacle pre-emption. In a second part, the article looks at the (dis)continuity of the application of the ERTA doctrine in the Court’s post-Lisbon case law, finding that there is coherence in the sense that obstacle pre-emption is still a valid prism through which to look at the ERTA doctrine but at the same time the threshold for finding an EU exclusive competence has been lowered.