Chapter 2: EU competence in the internal market
Article 114(1) TFEU enables the EU legislature to adopt approximation measures for the realisation of the internal market. It is important to consider the legislative impetus offered by this paragraph in some detail before the remaining clauses within Article 114 TFEU may be analysed and the significance of the derogation mechanism contained therein can be determined. Thus, this section first outlines, especially in the light of the emphasis on negative harmonisation within the process of European integration described in Chapter 1, the potential for legislative advancement under Article 114 TFEU, exploring in particular the scope of Article 114 TFEU in view of the limitations enunciated by the Court of Justice in the First Tobacco Advertising Case1 and the underlying principle of attribution of powers. The breadth of the legislative agenda can be evaluated against the background of the interpretation adopted of the different components of the competence formula, such as the expression ‘measures for the approximation’, as well as the treatment of the subsidiarity and proportionality principles within the context of this provision. Analysing the interaction between the trade integration premise in Article 114(1) TFEU and the concern for welfare protection in Article 114(3) TFEU will help determine the extent to which the market furtherance rationale inherent in Article 114 TFEU has been adapted to cater for non-trade-related interests.
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