Quotation Klamert, Marcus, Maydell, Niklas. 2008. Lost in Exclusivity – Implied Non-exclusive External Competences in Community law. European Foreign Affairs Review 4 (13): 493-513.




Implied non-exclusive competences empower the Community to conclude international agreements and, if such power is used, forestall Member States from acting. With the focus in this field rather on the more momentous category of implied exclusive competences, the very existence of such competences has either been disputed or has been confirmed without further specification. The authors show that, after inconsistent early case law, matters have been clarified by the Lugano Opinion of the ECJ. As a consequence, it is argued for the facilitation test as criterion for the coming into existence of implied non-exclusive competences and yardsticks for its application are suggested. In this context, the authors observe striking analogies to the case law on the delimitation of competences between the pillars. Finally, past and future implications for treaty making practice are explored, among others by topical example of the Minimum Platform on Investment.


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Publication's profile

Status of publication Published
Affiliation WU
Type of publication Journal article
Journal European Foreign Affairs Review
Language English
Title Lost in Exclusivity – Implied Non-exclusive External Competences in Community law
Volume 4
Number 13
Year 2008
Page from 493
Page to 513
Reviewed? Y


Klamert, Marcus (Former researcher)
Maydell, Niklas (Former researcher)
Europainstitut (Nf. Griller) (Former organization)
Research areas (ÖSTAT Classification 'Statistik Austria')
5115 European integration (Details)
5240 European law (Details)
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