Commerce Clause vs. Harmonisation Clause – Ideal Tool for Expanding Powers in the Field of Market Regulation?

Abstract

The European Union, like the United States, is creating an internal market within its Member States, which it is adopting the necessary coherent framework of measures to ensure the functioning of that market. In both cases, the measures derive their legal basis from provisions of supreme legal force in the form of the Treaty on the Functioning of the European Union or the Constitution of the United States of America. The paper focuses on a comparison of the provisions of Article 114 of the Treaty on the Functioning of the European Union, the so-called Harmonization Clause, and Article 1, Section 8 (3) of the United States Constitution, the Commerce Clause, the application of which poses a problem in some cases and raises several jurisdictional issues. The aim of this paper is to analyse and compare the limits of the legislator’s powers in relation to the use of internal market regulatory instruments.