Browsing by Author "Jaakkola, Kristella"

The EU integration has been spreading into the area of security. One of the most recent actions by the EU in this area is Directive (EU) 2022/2557 on the resilience of critical entities (the CER Directive). However, the EU’s competence to act in this area has been called into question as the Treaties do not provide an express competence. Similarly to several other security measures, the CER Directive was adopted using Art 114 TFEU as its legal basis. This thesis focuses on the topic of using Art 114 TFEU as a legal basis for security measures. It will be argued that although framed as a market measure, the background, context, and content of the CER Directive point towards a security aim. However, it seems that problems related to other potential legal bases, such as Art 196 TFEU on civil protection, left Art 114 TFEU effectively being the only available option for a measure such as the CER Directive. It is noted that the case law on Art 114 TFEU indicates that there are very few limits to its use, and therefore, it seems that it provides a valid legal basis also for the CER Directive. This thesis argues that while Art 114 TFEU may provide a lucrative shortcut to avoid competence and legal basis problems, its use for security measures is another example of the phenomenon called competence creep and may lead to some negative implications regarding. It will also be argued that the EU’s actions limit Member States' sovereignty, while also noticing that there are signs that the Member States have silently approved this development. In the end, it will be argued that masking security measures as market measures may negatively affect the effectiveness of protection and may send an unfortunate message that markets are regarded as a priority over the well-being of people.