EU Law I: Choice of legal basis

What is a legal basis

According to the Principle of attributed competences (Art. 5 EC) the Community has to justify any legal action and reason why this could not have been done on the national level. The legal basis, thus, serves as the Community's legal justification to act.

Based on objective factors amenable to judicial review
- Judging by the aim and content of the legislation
Different aims (twofold purpose)?
- Judge where the main emphasis of the measure is - the main and predominant aspect of the act rests

What happens, if a matter which is settled in form of a Regulation or a Directive (Art.249 EC) could be based on two or more legal bases?
Should be exceptional situation
Requirements
- Twofold purpose inseparately linked
  - only when no different decision-making and law-making procedures are involved (ex. 94 and 95 EC)
- Only when there is no predominant or more specific legal base (see 308 EC general one)
- No hierachy between norms (one more special than the other)
  - Art.37 before Art.95 EC, Art.95 before Art.175 before Art.308 EC (see Case Titanium Dioxide)
  - But Case Titanium Dioxide also seen in the context of 1991, at that time Art. 95 EC gave EP stronger input than Art. 175 EC
    - Choose this legal basis which gives the EP a stronger participatory right

Lecture Slides covering this topic

See also