European Papers (Mar 2023)
The Horizontal Clauses of Arts 8-13 TFEU through the Lens of the Court of Justice
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 1357-1380 | Article | (Table of Contents) I. Introduction. - II. Arts 8-13 TFEU and other similar clauses of EU primary law. - III. The legal value of the horizontal clauses of arts 8-13 TFEU. - III.1. Horizontal clauses and legal obligations. - III.2. Horizontal clauses and the exercise of Union competences in the areas concerned. - III.3. Horizontal clauses and the boundaries of an EU legal basis. - IV. The functions and judicial input of the horizontal clauses of arts 8-13 TFEU. - IV.1. Horizontal clauses and restrictions to fundamental rights. - IV.2. Horizontal clauses and restrictions to free movement. - IV.3. Horizontal clauses and supportive EU law interpretation - IV.4. Judicial review of compliance with the horizontal clauses. - V. Conclusion. | (Abstract) The horizontal clauses of arts 8-13 TFEU address a persistent challenge for the European Union: combining distinct policy objectives across the many areas of Union activity. Whilst they cannot be used as a legal basis for the adoption of EU measures, they legitimize the pursuit of the objectives they set forth, through legal bases that are designed to pursue some other treaty objective. This Article explores case law of the Court of Justice of the European Union (CJEU) on the legal nature of arts 8-13 TFEU, as well as their functions and input to judicial review. The analysis examines whether the horizontal clauses, as construed by the CJEU, create a legal obligation for mainstreaming. It also probes their relationship with the exercise of Union competences in the broader areas that they ad-dress (save for art. 13 TFEU due to the lack of an EU competence for animal welfare) and their implications for the choice of the legal basis of a mainstreaming measure. This Article further sheds light on the CJEU's treatment of the horizontal clauses in cases concerning restrictions of fundamental rights and free movement, it discusses their contribution to the interpretation of EU secondary legislation and examines whether the horizontal clauses may serve to invalidate an EU measure. The analysis overall attests to moderate judicial use of arts 8-13 TFEU but shows that relevant provisions en-rich and corroborate the CJEU's reasoning on different accounts.
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