Full text: Legal Study

10 TFEU. However, it needs to be kept in mind that a European Citizen Initiative would only require the Commission to consider such a proposal and could not force the Commission to actually make such a proposal. 3.2. IMPLIED POWERS DOCTRINE The doctrine of implied powers enables EU organs to take measures even if no expressed legal basis exists in the treaties. Whereas implied powers have long been accepted in principle in EU law, their exact contours and prerequisites remain contested. The doctrine has been particularly relevant in external relations where it was used to establish EU external competences which would allow the EU to enter into international agreements.25 However, implied powers have also been accepted in internal legislation.26 The ECJ even accepted that the EU may adopt criminal sanctions in an area where it is competent even if the general competence for criminal matters remains with the Member States.27 According to EU law doctrine, a narrow and a broad approach towards implied powers can be distinguished:28 The narrow approach concerns a competence which has been explicitly given to the EU organs but which cannot usefully be exercised without an additional competence. A broader approach requires only a specific objective which implies the competence to enact measures to achieve that goal. The scope of the implied powers doctrine in the broader sense remains contested. Though case law seems to indicate that the ECJ was from time to time willing to accept a broader understanding, no clear approach can be derived from this.29 It should also be noted that Article 352 TFEU contains a specific legal basis for measures which are aimed at achieving one of the EU’s objectives for which the treaties did not provide specific competences. However, the doctrine of implied powers in its narrow sense could be used to complement the competence given to the EU in Article 298 (2) TFEU. As stated above, this provision explicitly only covers the regulation of open and independent administration, but not legislation or general policy-making. However, lobbying activities vis-?-vis staff of the European Commission or of the European Parliament who are engaged in administrative tasks cannot be usefully regulated without also regulating lobbying activities targeted at legislative or policy-making activities. The doctrine of implied powers in its narrow sense and used in connection with Article 298 (2) TFEU would therefore allow the regulation of all lobbying activities, because the regulation of lobbying activities targeted at administrative only is not possible. A regulation based on the doctrine of implied powers in connection 25 ECJ, Case 22/70 (Commission / Council – AETR), ECR 1971, p. 263 (274), para 16. 26 Martin Nettesheim, Kompetenzen, in: Armin von Bogdandy / Jürgen Bast (eds), Europäisches Verfassungsrecht, 2nd ed.,Heidelberg 2009, p. 412-413. 27 ECJ, Case C-176/03 (Commission / Council), ECR 2005, p. I-7879, para. 48. 28 P. Craig and G. de Burca, EU law, Fourth Edition, Oxford 2008, p. 90. 29 Nettesheim, above note 26, p. 413.

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