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The CJEU’s Centre of Gravity Theory in Legal Basis Litigation: A Flawed Concept

Engel, Annegret LU (2026) p.234-249
Abstract
This chapter provides a normative analysis of the CJEU’s centre of gravity theory in legal basis litigation, exposing a number of flaws in its application and presenting suggestions for improvement. The chapter discusses the difficulties in the delimitation of competences under the current constitutional setup, the CJEU’s inconsistencies in applying the criteria of aim and content under the centre of gravity theory, and the resulting competence creep of generic legal bases, such as Article 114 TFEU, to the detriment of more specific legal bases and their pre-emption. Specifically, it is argued that the application of the centre of gravity theory has fostered procedural formalism in legal basis litigation at the expense of more substantive... (More)
This chapter provides a normative analysis of the CJEU’s centre of gravity theory in legal basis litigation, exposing a number of flaws in its application and presenting suggestions for improvement. The chapter discusses the difficulties in the delimitation of competences under the current constitutional setup, the CJEU’s inconsistencies in applying the criteria of aim and content under the centre of gravity theory, and the resulting competence creep of generic legal bases, such as Article 114 TFEU, to the detriment of more specific legal bases and their pre-emption. Specifically, it is argued that the application of the centre of gravity theory has fostered procedural formalism in legal basis litigation at the expense of more substantive aspects thereof, including due consideration of the principle of conferral. It is suggested that a more holistic approach to legal basis litigation would remedy this focus on procedural compatibility of legal bases and provide a more sustainable solution for the application of the centre of gravity theory. Other solutions include the more frequent use of multiple legal bases as well as a broader application of the lex specialis derogat legi generali principle. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
EU law, EU-rätt
host publication
The Reasoning of the Court of Justice of the EU : A Normative Assessment - A Normative Assessment
pages
16 pages
publisher
Oxford University Press
ISBN
9780198982982
DOI
10.1093/9780198983002.003.0013
language
English
LU publication?
yes
id
fec2ba70-e664-47a6-b663-a06a01da0f8e
date added to LUP
2026-04-07 20:15:36
date last changed
2026-04-08 08:42:10
@inbook{fec2ba70-e664-47a6-b663-a06a01da0f8e,
  abstract     = {{This chapter provides a normative analysis of the CJEU’s centre of gravity theory in legal basis litigation, exposing a number of flaws in its application and presenting suggestions for improvement. The chapter discusses the difficulties in the delimitation of competences under the current constitutional setup, the CJEU’s inconsistencies in applying the criteria of aim and content under the centre of gravity theory, and the resulting competence creep of generic legal bases, such as Article 114 TFEU, to the detriment of more specific legal bases and their pre-emption. Specifically, it is argued that the application of the centre of gravity theory has fostered procedural formalism in legal basis litigation at the expense of more substantive aspects thereof, including due consideration of the principle of conferral. It is suggested that a more holistic approach to legal basis litigation would remedy this focus on procedural compatibility of legal bases and provide a more sustainable solution for the application of the centre of gravity theory. Other solutions include the more frequent use of multiple legal bases as well as a broader application of the lex specialis derogat legi generali principle.}},
  author       = {{Engel, Annegret}},
  booktitle    = {{The Reasoning of the Court of Justice of the EU : A Normative Assessment}},
  isbn         = {{9780198982982}},
  keywords     = {{EU law; EU-rätt}},
  language     = {{eng}},
  month        = {{04}},
  pages        = {{234--249}},
  publisher    = {{Oxford University Press}},
  title        = {{The CJEU’s Centre of Gravity Theory in Legal Basis Litigation: A Flawed Concept}},
  url          = {{http://dx.doi.org/10.1093/9780198983002.003.0013}},
  doi          = {{10.1093/9780198983002.003.0013}},
  year         = {{2026}},
}