This master's thesis examines the fundamental constitutional architecture question of the common capital markets union project: whether genuine integration of EU capital markets can be achieved through secondary legislation adopted on the basis of Article 114 TFEU, or whether that objective requires amendment of the founding Treaties.
The free movement of capital under Article 63 TFEU establishes a conditional, not absolute, freedom. The prohibition operates effectively against discriminatory regulatory measures but does not reach the cumulative burden of divergent national tax regimes, insolvency frameworks, and supervisory requirements that lie outside its direct scope. This gap explains why positive harmonisation under Article 114 remains legally necessary to achieve what negative integration under Article 63 cannot.
A substantial portion of the integration agenda remains achievable without Treaty amendment, since the deepening of the single rulebook through the progressive substitution of directives by directly applicable regulations, and the extension of ESMA's convergence powers, both fall within the confirmed reach of Article 114. That framework has, however, a distinct legal ceiling: (i) the Meroni and Romano doctrines, as interpreted through Case C-270/12, preclude the transfer of powers involving original discretionary judgment; (ii) the absence of a Treaty provision comparable to Article 127(6) TFEU is a structural obstacle to centralised supervision modelled on the Single Supervisory Mechanism, since that provision was necessary precisely because Article 114 did not suffice for such supervision; (iii) and tax harmonisation is constrained by both the unanimity requirement of Article 113 and the judicial asymmetry established in Kerckhaert, which secondary legislation cannot remove.
Where Article 114 reaches its legal ceiling, enhanced cooperation under Article 20 TEU, a 28th regime under Article 352 TFEU, and a two-tier supervisory approach remain as alternative mechanisms within or alongside the Treaty framework, each carrying its own limitations. A common capital market without treaty revision is legally achievable, but only within a more limited scope.
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