ABSTRACT
The most notable expression of conferral is the requirement that all EU action requires a legal basis in the EU treaties. 1 Adding to the importance of the choice of legal basis is the fact that although the ordinary legislative procedure is prescribed for many policy areas (294 TFEU), different institutional and procedural confi gurations exist depending on the fi eld at issue. For example, trade in certain sensitive services is subject to unanimity rather than qualifi ed majority voting (208.4 TFEU), the role of the Commission and High Representative in treaty negotiations differs depending on whether CFSP is included or not, and Parliament may be excluded (CFSP), consulted or its consent obtained as a necessity, depending on the nature of the international agreement to be concluded by the Union (218.6 TFEU). Flowing from the principle of conferral, the Court of Justice has thus stated that the legal basis requirement is not merely procedural but is of ‘constitutional signifi - cance’ and ‘to proceed on an incorrect legal basis is therefore liable to invalidate the act’ adopted by the Community ex ante or ex post. 2 However, the correct legal base determines the degree of infl uence a Member State or EU Institution may have on a given measure. What is more, this chapter will show that the legal basis disputes may refl ect deeper disagreement over the
nature of European integration in EU external relations itself. As a consequence, the choice of legal base is regularly the result of political negotiation and compromise, 3 yet the Court of Justice is to apply an objective legal methodology in resolving such disputes.
