Page - 152 - in Austrian Law Journal, Volume 2/2018

ALJ 2018 Hannes Hofmeister 152 Union, it must be concluded that the establishment of that mechanism falls within the area of economic policy’. 75 b. Attainment of an EU Objective Moreover, the measure must be necessary to attain one of the objectives of the EU. In the case under consideration, the objective to be attained is the establishment of an economic and monetary union whose currency is the euro, Article 3(4) TEU. But is the establishment of a EMF really necessary to attain said objective? This question will be analysed in the next section. c. Necessity The interpretation of the term ‘necessary’ is a more complicated endeavour. Since the establishment of the ESM six years ago, the euro area has been equipped with a stability mechanism to help Member States in crisis and to safeguard stability in the euro area as a whole. Hence, one could argue that the establishment of the EMF by means of an EU Regulation is not ‘necessary’ anymore. Or to put it more generally: Can an EU measure still be considered ‘necessary’, when the Member States have already taken collective measures outside the EU legal framework (e.g. the conclusion of an international treaty) to attain the objective? Some argue that in such cases EU action is no longer ‘necessary’ within the meaning of Article 352 TFEU.76 In support of their view, they point to the radiating effect of the general subsidiarity principle as enshrined in Article 5(3) TEU. This radiating effect needs to be taken into account when interpreting the term ‘necessity’. Such an interpretation leads them to conclude that EU action can no longer be regarded as ‘necessary’ within the meaning of Article 352 TFEU, when the respective objective has already been attained by Member State measures.77 In such a case, there is no longer a discrepancy between the objective and the realisation of the objective.78 Others fundamentally disagree. They argue that collective action by Member States is a clear indication that a uniform regulation is necessary to attain an EU objective.79 Moreover, there is a qualitative difference between the attainment of an objective by Member States on the one hand and by the EU on the other: While EU action ultimately leads to legislation that is characterised by the principle of supremacy and subject to uniform judicial control by the ECJ, collective action by the Member States results in international treaties. The latter, however, lack the above-mentioned characteristics and hence constitute a much weaker form of legal safeguard. Furthermore, states can withdraw from international treaties relatively easy and thereby escape their obligations.80 75 Case C-370/12, supra note 71, para. 60. 76 See e.g., Fritz Behrens, RECHTSGRUNDLAGEN DER UMWELTPOLITIK DER EUROPÄISCHEN GEMEINSCHAFT 278 (1976). 77 Ivo Schwartz, EG-Rechtsetzungsbefugnisse – insbesondere nach Artikel 235 – ausschließlich oder konkurrierend?, EuR 32 (1976). 78 Behrens, supra note 76, at 278. 79 Marcus Geiss, Art. 352 TFEU, in EU KOMMENTAR, 18 (Jürgen Schwarze ed., 2012). 80 Richard H. Lauwaars, Artikel 235 als Grundlage für die flankierenden Politiken im Rahmen der Wirtschafts- und Währungsunion, EuR 104 (1976).