17 Colum. J. Eur. L. 477 (2010)
Amedeo Arena, Postdoctoral Research Fellow in European Union Law at the University of Naples ‘Federico II’, Ph.D. in International Law (University of Naples ‘Federico II’), LL.M. in International Legal Studies (New York University), LL.M. in European Law (King’s College London).
The introduction by the Treaty of Lisbon of a catalogue of competencies into the TFEU eliminated the overlap between the preclusion of national lawmaking powers resulting from the exclusive character of E. U. competences and that attributable to the enactment of E. U. legislation. This opened the door for scholarly investigation of Union Preemption as a general theory of the effects of E. U. legislation in non-exclusive competence areas. The first aim of this work is to describe what the doctrine of Union Preemption is (“Sein”) in the context of the E. U. internal market. In particular, this work will seek to establish whether it is possible to determine the preemptive scope of an item of E. U. legislation by reference to certain “markers,” such as its legal form and the harmonization model it embodies. In view of the obscurity and unpredictability of the doctrine of Union Preemption as it currently stands, this work further aims to formulate recommendations as to what that doctrine ought to be (“Sollen”) in order to meet the current needs of European integration, taking into account the diversity of situations where preemption issues arise and the changes in the legal, political, and economic context that have occurred in the internal market since 1957.
