The ‘Retained Powers’ Formula in the Case Law of the European Court of Justice: EU Law as Total Law? - Archive ouverte HAL Access content directly
Journal Articles European Journal of Legal Studies Year : 2011

The ‘Retained Powers’ Formula in the Case Law of the European Court of Justice: EU Law as Total Law?

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Loïc Azoulai

Abstract

[Abstract editor: The case-law of the European Court of Justice is full of standard formulas. This articleanalyses one such formula, the so-called ‘formula on retained powers’ according to which the scope of application of EU law extends to subject areas over which Member States are supposed to have retained powers. It attempts to trace it back through the line of ECJ decisions, to analyse the specific components and arguments encapsulated in it, and to identify its justifications and effects. It is argued that the recurrence of this judicial formula amounts to the emergence of a new doctrine in EU law called the ‘total law doctrine’ based on both the recognition of the essential own capacities of the Member States within the integrated European space and on the requirement to include certain under-protected interests and situations in the manner national authorities usually use to think and to act.]
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Dates and versions

hal-03585974 , version 1 (23-02-2022)

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Loïc Azoulai. The ‘Retained Powers’ Formula in the Case Law of the European Court of Justice: EU Law as Total Law?. European Journal of Legal Studies, 2011, 4 (2), pp.192 - 219. ⟨hal-03585974⟩
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