Article 116 [Distortion of Competition]

The existence of divergent national legislation in the EU MS is neither forbidden per se nor necessarily undesirable. This is a direct consequence of the principle of conferral, which governs “the limits of Union competences” (sentence 1 of Article 5.1 TEU). Moreover, the principle of conferral is significantly reinforced by the Lisbon Treaty for at least two reasons: on the one hand, it is—for the first time—mentioned expressis verbis by Article 5.1 TEU, while, on the other, the provision of Article 5.2 TEU goes even further than the TEC in the definition of its content. Whereas the Community was allowed to “act within the limits of the powers conferred upon it by this Treaty” (ex-Article 5.2 sentence 1 TEC), the Union can “act only within the limits of the competences conferred upon it by the Member States in the Treaties” (Article 5.2 sentence 1 TEU). Even if it may seem that this semantic reinforcement is devoid of practical consequences, it represents an undeniable tendency, supporting the assumption of competence in favour of the MS established by Article 4.1 TEU. The strengthening of the principle of conferral may also be seen as a counterpart of an undeniable extension of EU competences, given that “the overt integration of the Lisbon Treaty […] has also been flanked with covert integration”. It is, however, clear that striking a balance between Union’s and national legal orders requires permanent efforts and “should not rely upon simple casuistic conflict avoiding”.