On the scope of EU’s exclusive competence after the Lisbon Treaty. Comment of the Opinion 1/13 of the Court (Grand Chamber) of 14 October 2014 on Convention on the Civil Aspects of International Child Abduction

Abstract

This case comment focuses on the scope of the EU’s exclusive competence after its codification in article 3 (2) TFEU in light of Opinion 1/13. More precisely, it analyses how the case-law on implied exclusive powers prior to the entry into force of the Lisbon Treaty continues to apply and to what degree in relation to the 1980 Hague Convention on Child abduction. The case comment examines to what extent the declaration of acceptance issued by certain EU Member States in relation the acts of accession of third countries can be considered an international agreement that falls within an EU implied exclusive competence in the sense of the ERTA principle. First, the case comment shows how the CJEU’s broad non-formalistic concept of international agreement continues to apply after Lisbon. Secondly, it analyses how the CJEU’s continues to embrace a broad view of the ERTA principle as established in Opinion 1/03. Finally, the case comment questions the way the Court conducted its analysis of the ERTA Principle in Opinion 1/13 showing that its unpredictable application continues to persist after its codification.