EU loyalty after Lisbon: An expectation gap to be filled?

Abstract

Conceived as a cornerstone of the European integration process, the Loyalty Clause (today enshrined in Article 4(3) TEU) has been significantly revisited by the Lisbon Treaty. Aside from repositioning the clause, which has wisely been incorporated into the TEU, the Reform Treaty has introduced other innovations to the pre-Lisbon Loyalty Clause, starting from the express recognition, for the very first time in primary law, of the existence of a general principle of loyal cooperation. In light of the pivotal role of EU loyalty and the innovations introduced by the Lisbon Treaty, the question arises as to whether the new formulation of loyalty can serve as a basis on which to effectively deal with the challenges the Union is facing today. This chapter examines the role loyalty can play in this regard, with a view to assessing whether a further revision of loyalty mechanisms is desirable. The analysis is organised as follows. I first consider the mainstream dimension of loyalty. Then I turn to the position of EU institutional actors as concerns their duties of loyalty, focusing in particular on the mutual nature of these duties and their interaction with the imperative to respect national identities, an imperative that today is set out in the same Treaty provision (Article 4 TEU) which contains the Loyalty Clause. With that done, I discuss the interaction and distinction between loyalty and the legal concept of solidarity, the latter often mentioned in the Lisbon Treaty as a structural feature of the EU constitutional dimension, and it has recently entered EU legal discourse on emergencies (natural, economic, financial, and social).