"[T]heory is somewhat lagging behind the facts and developing only in reaction to these facts," argues C.W.A. Timmermans regarding the European Community's (the EC or the Community) legal basis for extending its external power. The Community tends to extend its external competence before having a clear authority for doing so and only later provides a post hoc rationale. This observation suggests that the justification, not the propriety, of a newly acquired external competence is the question. Nowhere is this modus operandi better illustrated, or more sorely tested, than by the Community's growing involvement with and pursuit of international intellectual property issues. Indeed, not only has the EC begun to act before having an obvious or agreed upon legal basis, but it also does so in the face of argument that it cannot.
A. D. Demiray,
Intellectual Property and the External Power of the European Community: The New Extension,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol16/iss1/3