Crisis, Reinterpretation, and the Rule of Law: Repurposing ‘Cohesion’ as a General EU Spending Power

The EU Treaties contain no provision akin to the clause in the United States Constitution empowering spending in the ‘general Welfare’, i.e., for the general public good. Nonetheless, supporters of a broad reading of the cohesion flexibility clause, Article 175(3) TFEU, now claim that the EU, in effect, already has that power. The claim is inspired by that clause serving as the sole legal basis for the Recovery and Resilience Facility (RRF). This is the cornerstone of the NextGenerationEU (NGEU) Programme, the EU’s massive borrowing and spending initiative that has directed a large amount of money to national priorities to address not just economic consequences of Covid but also longer-term issues of climate change, energy transition, and digitalization. This contribution critically assesses whether Article 175(3) TFEU can serve as the basis for general spending authority in the EU, particularly at the expense of its traditional role in regional development in Europe’s economic periphery. The analysis draws on the historic purposes of cohesion policy, the existing case law on the limited scope of the cohesion flexibility clause, as well as legal opinions of the Council Legal Service on the same question. This contribution concludes that the crisis-driven reinterpretation of Article 175(3) TFEU not only undermines cohesion as developmental tool for the periphery, but it also raises serious concerns about democratic legitimacy and the rule of law at Europe’s core. The EU may well need a general spending power, but the way to achieve it is not through institutional lawyers engaging in strained crisis reinterpretation outside of public scrutiny. Instead, what is needed is democratic politics pure and simple, i.e., Treaty change.