The EU Flexibility Clause is Dead, Long Live the EU Flexibility Clause

Specifying with absolute precision where the line is between EU and Member States competences has always been difficult. This may have been due to the fact that the legal basis for EU legislation has had an ostentatious history, and while the EU has been in possession of powers beyond those which are specifically conferred, ever so discreetly, in the flexibility clause (hereinafter ‘the clause’), Article 352 of the Treaty on the Functioning of the European Union (TFEU) has provided a means that goes beyond the treaties’ confines. The clause is known by many names: the residual competence clause; a discretionary power; the implied power; the open-ended power; the elastic clause; a constitutional blank cheque; a lacunae-filling provision; the general enabling power; an open provision; the special normative instrument; the catch-all provision; the residual power; the elastic provision; the general authorisation power; the hive of legislative expansion; the competence reservoir; la petite revision; and many more. Whatever its designation or array of aliases, it is a remarkable element of EU law that has to be looked at in full.

One of the prevailing themes on the clause in scholarship is trying to foresee its limits, as opposed to its potential. This is a natural course of contemplation, given that abstractly, the clause is boundless. However, what becomes apparent from observing the clause is its double dynamic: first, the willingness of the EU legislature to make use of it as a basis for EU legislation, before then rolling back; and, second, the degree to which the Court has permitted its use within the confines of the treaties as a whole, before also rolling back. From its wild days of extensive use to its time of slowly becoming more dormant, it has led to a varied legislative and judicial interpretation. In light of this conundrum, this chapters attempts to determine what the future has in store for the EU’s clause, and it is argued that the clause still has a purpose, but only if used fittingly and sparingly.