{"id":122953,"date":"2025-07-02T17:10:37","date_gmt":"2025-07-02T15:10:37","guid":{"rendered":"https:\/\/ceadigilaw.org\/blog\/proteger-l-ultraperipherie-l-article-349-tfue-bouclier-juridique-des\/"},"modified":"2025-07-02T17:10:37","modified_gmt":"2025-07-02T15:10:37","slug":"proteger-l-ultraperipherie-l-article-349-tfue-bouclier-juridique-des","status":"publish","type":"post","link":"https:\/\/ceadigilaw.org\/fr\/blog\/proteger-l-ultraperipherie-l-article-349-tfue-bouclier-juridique-des\/","title":{"rendered":"Shielding the outermost regions (ORs): Article 349 TFEU as their legal safeguard against the recentralisation of funds"},"content":{"rendered":"
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By Antonio Tejeda Encinas | Lawyer | PhD in European Union Law<\/p>\n

In the weeks leading up to the presentation of the 2028\u20132034 Multiannual Financial Framework, scheduled by the European Commission for 16 July 2025, a debate has been rekindled whose legal and institutional significance bears directly on the architecture of European cohesion: the possible recentralisation of structural fund management. Behind the technical veneer of \u2018administrative simplification\u2019 or \u2018efficiency in implementation\u2019 lies a proposal to concentrate powers in the hands of the Member States. If it succeeds, it could erode the principle of shared management, blurring the effective participation of the regions and thereby undermining the very logic of Article 349 of the Treaty on the Functioning of the European Union (TFEU).<\/p>\n

The attempt to transfer to the cohesion system the governance model used to implement the Recovery and Resilience Facility cannot be considered neutral. The two contexts differ in substance. NextGenerationEU was conceived in a spirit of urgency and exceptionality, befitting a public health emergency. Cohesion policy, by contrast, is structural, programme-based and long-term, and its effectiveness rests on territorial fit \u2013 on the capacity to adapt to the specific circumstances of each region. To claim that the national scheme can be replicated at regional level without distortion is to ignore \u2013 or deliberately sidestep \u2013 the legal pillars on which cohesion law has been built. Added to this is Article 174 TFEU, which enshrines the reduction of regional disparities as an essential objective of cohesion policy and calls for precisely the kind of differentiated, territorially based approach that some now seek to dilute.<\/p>\n

This is where Article 349 TFEU acquires its instrumental value and its strategic relevance. The provision is not a concession but a mandate. By recognising the permanent structural conditions affecting the outermost regions (ORs) \u2013 remoteness, insularity, small size, dependence on a limited number of sectors and so on \u2013 the Treaty requires differentiated and sustained measures, both economic and administrative. Indeed, the case law of the Court of Justice has steadily reinforced a functional interpretation of this article, holding that any measure affecting these regions must take account of the differentiated impact it may have (judgment of the Court of Justice in Case C-132\/14, European Parliament and Commission v Council, among others).<\/p>\n

The recentralisation proposal, although not yet set out in legislative form, raises questions of a constitutional and statutory nature. From the Spanish perspective, Article 149.1.13 of the Spanish Constitution entrusts the State with coordinating the general planning of economic activity, but does not exclude the participation of the Autonomous Communities in implementing European policies. The \u2018Estatuto de Autonom\u00eda de Canarias\u2019 (EAC, the Statute of Autonomy of the Canary Islands), in both Article 8 and Article 27, enshrines differentiated treatment for the islands\u2019 reality and for the specific features arising from their outermost status. And it does so not merely as a political declaration, but as a mandate for institutional and budgetary design.<\/p>\n

Eliminating or weakening the mechanisms that guarantee this active regional participation \u2013 such as monitoring committees, the regions\u2019 own managing units or direct channels with the Commission \u2013 would therefore be tantamount to stripping of practical substance what Article 349 TFEU establishes as the legal core of the recognition of outermost status.<\/p>\n

This is not, then, a plea for exceptional treatment, but for maintaining a functional and legal balance that is already well established. The outermost regions are not asking for privileges, but for guarantees. Article 3(3) of the Treaty on European Union reinforces this requirement by recognising economic, social and territorial cohesion as one of the Union\u2019s aims, which means that any reform must be interpreted through the prism of genuine solidarity between regions. And the current framework, imperfect as it is, has made it possible \u2013 precisely thanks to Article 349 TFEU \u2013 to build a direct technical and political dialogue between the ORs and the European institutions.<\/p>\n

There is a further, essential consideration: democratic legitimacy. Regional institutions are not administrative branch offices. They are governments with their own legitimacy, with legislative and executive powers and with a direct mandate from their citizens. Reducing their role in the management of European funds means disregarding that legitimacy and undermining the principle of subsidiarity laid down in Article 5 of the Treaty on European Union.<\/p>\n

That is why, faced with the technocratic temptation to simplify what is complex, the legal and political response of the Canary Islands \u2013 and of the ORs as a whole \u2013 must be clear: Article 349 TFEU should not be updated, reinterpreted or made conditional; it must continue to be applied in full, as a guarantee of territorial balance and as a structural clause of a European cohesion policy that, if it is to be real, cannot be uniform.<\/p>\n

Any attempt at recentralisation should be read not as a functional evolution but as an institutional step backwards. Without the direct participation of the regions, cohesion policy ceases to be policy and becomes mere financial distribution. And Europe cannot afford to let its most powerful instrument of territorial integration be weakened precisely when it is most needed.<\/p>\n

The Canary Islands, as an island, outermost, remote and fragile region, are not a problem to be fixed: they are a reality to be respected. And that respect begins with compliance with Article 349 TFEU on its own terms, without reinterpretations that serve as a shortcut to political decisions to recentralise.<\/p>\n

Antonio Tejeda Encinas<\/strong> | Doctor of Juridical Science (SJD) \/ Doctor iuris \u2013 Central European University, summa cum laude (Budapest, 2014): \u2018Instrumentos jur\u00eddicos de armonizaci\u00f3n normativa y soberan\u00eda regulatoria: un estudio aplicado entre la UE, Am\u00e9rica Latina y Turqu\u00eda (2008\u20132014)\u2019<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

By Antonio Tejeda Encinas | Lawyer | PhD in European Union Law In the weeks leading up to the presentation of the 2028\u20132034 Multiannual Financial Framework, scheduled by the European Commission for 16 July 2025, a debate has been rekindled whose legal and institutional significance bears directly on the architecture of European cohesion: the possible […]<\/p>\n","protected":false},"author":2,"featured_media":116347,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"wds_primary_category":0,"wds_primary_cea_women":0,"footnotes":""},"categories":[1113],"tags":[],"cea_women":[],"class_list":["post-122953","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-analisis-y-opinion-fr"],"acf":[],"_links":{"self":[{"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/posts\/122953","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/comments?post=122953"}],"version-history":[{"count":0,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/posts\/122953\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/media\/116347"}],"wp:attachment":[{"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/media?parent=122953"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/categories?post=122953"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/tags?post=122953"},{"taxonomy":"cea_women","embeddable":true,"href":"https:\/\/ceadigilaw.org\/fr\/wp-json\/wp\/v2\/cea_women?post=122953"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}