The principle of conferral and express and implied external competences

Abstract

This chapter offers some reflections on the relationship between the Union’s express and implied external competences by examining them in the light of the principle of conferral of powers, one of the most fundamental of the principles which structure the EU’s external relations. Since the landmark decision in Commission v Council (AETR), the evolution of implied powers has been one of the defining features of EU exter¬nal relations law. The consolidation of the AETR line of case law in the Treaty of Lisbon, in particular in Articles 3(2) and 216(1) TFEU, as well as the development of practice and law since the Treaty of Lisbon came into force invite us to rethink the relationship between express and implied powers. If we examine the reality of practice over the last few years we can identify a trend towards a consolidation of EU external action and international treaty-making practice on the basis of a number of key express external competences of broad scope. This trend invites us to reconsider the rationale for implied powers in the light of the principle of conferral.