The Good, the Bad, or the Ugly? The Choice of Legal Basis in EU Digital Finance

This article analyses the choice of legal basis for measures under the EU’s digital finance strategy. In this area, a new regulation has recently been introduced concerning markets in crypto- assets (MiCA). The package for a digital finance strategy also includes a Digital Operational Resilience Act (DORA) as well as a regulation on distributed ledger technology (DLT). All these measures are adopted on Article 114 TFEU as a single legal base, despite having a clear finance- related angle. Potential alternatives to Article 114 TFEU could be found in either the economic or the monetary policy area. Even more so, a digital competence is entirely missing from the treaties, and thus from EU competences. This article analyses the procedural and structural advantages of some provisions over others, which render them more suitable as legal basis in the Digital Single Market. In particular, the quasi-monopolistic role of Article 114 TFEU due to institutional preferences and the resulting pre-emption of other competences has to be criticised. The article suggests a revival of Article 352 TFEU as legal base in order to fill the digital gap in EU competences.