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Scope of Article 308 of the EC Treaty
Reference:  DOC/07/4    Date:  26/06/2007
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D/07/4

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EUROPEAN COUNCIL

Brussels, 22 June 2007


11198/07


JUR 261


OPINION OF THE LEGAL SERVICE

Scope of Article 308 of the EC Treaty

1) It results from the practice of the Institutions that, for the implementation of Article 308 of the EC Treaty ("flexibility clause"), the reference to "the objectives of the Community" has been interpreted widely by the Institutions, in order to cover all purposes and objectives coming within the general framework of the Treaty, and not only to cover those listed in Article 3. A recent example of this practice is the adoption of the Regulation establishing the Agency on Fundamental Rights[1]. This corresponds to the case law of the Court of Justice[2]: the Court of Justice has said that Article 235 of the EC Treaty (now Article 308) "cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community".

2) The fact that, in a future Treaty, Article 3 listing the objectives of the Union would not contain a specific reference to "a system ensuring that competition in the internal market is not distorted" would not, therefore, prevent the EU legislator to act in order:

  • to "establish an internal market" (future Article 3, paragraph 3), and

  • that the activities of the Union "shall include (...) the adoption of an economic policy which is based (...) on the internal market (...) and conducted in accordance with the principle of an open market economy with free competition" (future Article 4).

3) The future IGC may deem it appropriate, for reasons of transparency, to accompany the text of the future Treaty by a Declaration stating that "with regard to the establishment of the internal market as set out in article 3 TEU, the Conference confirms that the Union will, if necessary, take action under Article 308 to ensure that competition is not distorted".

4) The future IGC might also choose to add a Protocol to the future Treaty, in order to confirm the above. Such a Protocol would be in conformity with the Treaty but legally superfluous.

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[1] Regulation No 168/2007 of 15 February 2007, OJ L53, 22.2.2007, p. 1.

[2] See Opinion of the Court of Justice of 23 March 1996, Opinion 2/94 [1996] ECR, p. I-1759.