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Spillover or activist leapfrogging? Criminal Competence and the Sensitiveness of the European Court of Justice
Stockholm University.
2007 (English)Report (Other academic)
Abstract [en]

The law concerning the choice of legal basis represents

an important constitutional development in Community

law. The European Court of Justice (ECJ) has through

its case-law shaped and defined the boundaries between

the European Union and its Member States and between

the actors involved in the lawmaking process of the European

Union. This article is based on three levels of

analysis of this case-law. It argues that a “sensitiveness”

reading of four high-profile cases on the choice of legal

basis and Community internal and external competence

could help explain these cases as well as more recent legal

developments. The four cases, Titanium Dioxide, Waste,

Tobacco Advertising and Environmental Crimes, were ruled

upon in different time periods and exemplify different

types of competence battles. According to this analysis

the Environmental Crimes case from 2005, which highlights

the division of competence between the pillars and

the supranational and intergovernmental elements of the

European Union, is neither a result of spillover, nor activist

leapfrogging between pillars. In contrast, it should

be read in the light of the unison will of the Member

States as pronounced in a Treaty change, not necessarily

yet in force. Arguably, such a rule of sensitive interpretation

falls within the ambit of the current Treaties, although

seeking guidance in changes not necessarily yet in force.

Place, publisher, year, edition, pages
, European Policy Studies, 2: 2007
Keyword [en]
EU-rätt, EG-domstolen, kompetensfördelning, rättslig grund, fördragsändring, ogiltighetsprövning, straffrätt, miljöbrott
National Category
Law and Society
URN: urn:nbn:se:su:diva-12655OAI: diva2:179175
Available from: 2009-02-05 Created: 2009-02-05Bibliographically approved

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Bergström, Maria
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Stockholm University
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