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ACTA & European Union perspectives

Lidgard, Hans Henrik LU (2013) ACTA conference - Nätverket för Europarätt
Abstract (Swedish)
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.

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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? (Less)
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author
organization
publishing date
type
Contribution to conference
publication status
unpublished
subject
keywords
ACTA, internationell privaträtt, private international law
conference name
ACTA conference - Nätverket för Europarätt
language
Swedish
LU publication?
yes
id
8fb1ccb5-3013-4a0b-a0f7-6cc753f953a6 (old id 4001306)
date added to LUP
2013-08-26 13:06:14
date last changed
2016-04-16 10:41:41
@misc{8fb1ccb5-3013-4a0b-a0f7-6cc753f953a6,
  abstract     = {<b>Abstract in Undetermined</b><br/><br>
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. <br/><br>
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?<br/><br>
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?},
  author       = {Lidgard, Hans Henrik},
  keyword      = {ACTA,internationell privaträtt,private international law},
  language     = {swe},
  title        = {ACTA & European Union perspectives},
  year         = {2013},
}