learning and development - consultancy - research EIPA 2011©

European Institute of Public Administration - Institut européen d’administration publique

DEFINING THE EU AS A PECULIAR LEGAL ENTITY:Aims, founding values and legal nature

Tomasz KramerLecturer

European Centre for Judges and Lawyers, EIPA LuxembourgAnkara, 10 - 12 May 2011

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INTRODUCTION

Ø HOW TO DEFINE THE EUROPEAN UNION?

Ø WHAT ARE THE SPECIFIC FEATURES OF THE EU?

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DEFINING THE EU:Is the EU a State? (1)

§ The State, and its three constituent elements:- Territory- Population- Sovereignty

§ Does the EU posses these three elements?- EU Territory? Art. 52 TEU & Art. 355 TFEU- EU population? EU citizenship, Arts. 20 – 25 TFEU- EU sovereignty? Does the EU posses original

competences?

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DEFINING THE EU:Is the EU a State? (2)

§ Do the Treaties on European Union and on the Functioning of the European Union have a constitutional value?

§ Contents of every constitutional text§ Material vs. formal constitution

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DEFINING THE EU:Is the EU an International Organisation? (1)

§ Points of similarity:- EU is a voluntary association of States- Limited own resources and taxing capacities- Reduced enforcement powers

§ Points of difference:- Catalogue of EU competencies- Autonomous decision making powers leading to the production of

legally binding instruments- European Law overrides conflicting national law (Supremacy)- Individuals are also subject to European Law & Direct Effect- Enforcement of EU policies through the jurisdiction of the Court of

Justice of the EU

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§Autonomy§Direct effect§Primacy of EU law

It is not a “classic” international organization:

Implementation through national measure

DEFINING THE EU:Is the EU an International Organisation? (2)

National legal framework

International instrument

National implementation act)

EU law

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DEFINING THE EU:The EU, an original entity (1)

§ The EU, a sui generis political and legal entity§ Decision of the German Constitutional Court,

Staatenverbund, 12/9/93EU = Association of States

“Association within which a number of Member States have decided to put together a number of competencies, accepting that in these fields, decisions can be taken on the basis of majority, and that these decisions are absorbed into national legal systems without further formality, and taking precedence over potentially contradicting national measures”

§ Dynamism of the EU: ‘ever closer Union’(Art. 1, 2 TEU)

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DEFINING THE EU:The EU, an original entity (2)

§ The EU is unique§ The countries that make up the EU (its ‘member states’

or MS) remain independent but they have pooled sovereignty in order to:- achieve efficient policy outputs- gain strength and influence in the world scene

§ Pooling sovereignty means, in practice, that MS delegate some of their decision-making powers to shared institutions they have created, so that decisions on specific matters of joint interest can be made democratically at EU level

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Aims of EU

PESC

TreviEC

EURATOM

E

C

S

C

Pillar 2

CFSP

Pillar 3

JHA/

PCCM

Community ApproachFounding Values and Common Provisions

EC-Law

DEFINING THE EU: THE EU BEFORE THE LISBON TREATY

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DEFINING THE EU:The EU after the Lisbon Treaty (1)

Ø Major changes brought by the Lisbon treaty*:

Legal personality

Before Lisbon After Lisbon

• EC possesses legal personality

• EU does not have legal personality

• EC ceases to exist

• EU replaces and succeeds the EC

•EU gains full legal personality

*http://europa.eu/lisbon_treaty/glance/index_en.htm

Pillar structure

Before Lisbon After Lisbon

3 pillar structure introduced by Maastricht Treaty

Abolition of the pillar structure –pillars are now consolidated

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DEFINING THE EU:The EU after the Lisbon Treaty (2)

§ The EC Treaty is renamed “Treaty on the Functioning of the European Union”

§ The EU shall be founded on the present Treaty (on European Union) and on the Treaty on the Functioning of the European Union) (Art. 1 TEU)

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DEFINING THE EU:The EU after the Lisbon Treaty (3)

§ Three fundamental texts of equal value:- Treaty on the European Union (TEU)- Treaty on the Functioning of the European Union (TFEU)

These “two Treaties shall have the same legal value” (Art. 1 EU)

- PLUS the Charter of Fundamental Rights which “shall have the same legal value as the Treaties” (Art. 6 EU)

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DEFINING THE EU:The EU after the Lisbon Treaty (4)

§ Structure of the EU Treaty after Lisbon

Title I Common Provisions

Title II Provision on democratic principles

Title III Provisions on the Institutions

Title IV Provisions on enhanced cooperation

Title V Provisions on the Union’s external action and specific provisions on CFSP

Title VI Final Provisions

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DEFINING THE EU:The EU after the Lisbon Treaty (5)

§ Structure of the TFEU after LisbonPart One Principles

Part Two Non-discrimination and citizenship of the EU

Part Three Union’s policies and internal actions

Part Four Association of the overseas countries and territories

Part Five External action by the Union

Part Six Institutional and budgetary provisions

Part Seven Final Provisions

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DEFINING THE EU:The EU after the Lisbon Treaty (6)

CHARTER

TFEU

TEUEUROPEAN UNION

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THE SPECIFIC FEATURES OF THE EU:Legal Personality

§ Up to Lisbon:- The EC had express legal personality- The EU did not, but had treaty-making capacities

§ Under the Lisbon Treaty:- The EU obtains express legal personality (Art. 47 EU)- Hence:

- It can continue to conclude international agreeements (new arts 216, 217 & 218 TFEU)

- It will be able to join international organisations- And take, and be subject to, proceedings in international

tribunals.

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THE SPECIFIC FEATURES OF THE EU:Founding values (1)

§ Art. 2 TEU“The Union is founded on the values of respect of human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the MS in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

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THE SPECIFIC FEATURES OF THE EU:Founding values (2)

§ Impact on enlargement ⇒ the compliance with these values, a prerequisite for the opening of accession negotiations

§ Art. 49, 1 TEU:“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the EU”

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THE SPECIFIC FEATURES OF THE EU:Aims

§ Art. 3 EU

SpecificObjectives

Area of freedom,security

and justiceArt. 3(2) EU

Internal marketArt. 3(3) EU

Economic andMonetary Union

Art.3(4) EU

Union values andinterests in the

wider worldArt.3(5) EU

Overarching aim of the Union:Art 3 (1) EU: to promote peace, its values and the well-being of its peoples

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THE SPECIFIC FEATURES OF THE EU:Competences (1)

§ What are the principles of competence sharing?- The EU enjoys competences conferred on it by

MS – Principe of Conferral(Art. 5, points 1 & 2 TEU)

- The competences not given to the EU remain with the MS (Arts. 4,1 & 5,2 TEU)

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THE SPECIFIC FEATURES OF THE EU:Competences (2)

§ Art. 2 TEUIn the Lisbon Treaty the distribution of competences in various policy areas between Member States and the Union is explicitly stated in the following three categories:

The Union has exclusive competence to legislate and adopt legally binding acts, when provided for in the Treaties or in a Union legislative act.

Exclusive competence

Member States cannot exercise competence in areas where the Union has done so.

Shared competence

Exclusive competence of Member States. In these areas, the Union can carry out actions to support, coordinate or supplement Member States' actions.

Supporting competence

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LIST OF COMPETENCES (Arts. 3, 4 & 6 TFEU)

EXCLUSIVE COMPETENCES

Customs Union CompetitionMonetaryMarine resourcesCommercial policyInternational agreements (AETR)

SHARED COMPETENCES

q Internal market q economic, social &

territorial cohesionq agriculture and fisheries

(except where exclusive)q environment

q consumer protectionq transport

q trans-European networks

q energyq Freedom, security andjusticeq public healthq research and technologicaldevelopmentq spaceq development cooperationq humanitarian aid

SUPPORT ACTIONS

Human HealthIndustryCulture

TourismEducation,

vocational training, youth and sportCivil protectionAdministrative

cooperation

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THE SPECIFIC FEATURES OF THE EU:Single Institutional Framework

Part Six of the Treaty on the Functioning of the European Union entirely dedicated to “Institutional and Financial provisions”Ø There are 7 European institutions (Art. 13 TEU):

-European Parliament-European Council-Council-Commission-Court of Justice of the European Union-European Central Bank-Court of Auditors

Ø Budget of the EU: the financial provisions

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We would be happy to help.

Do You Have Any Questions?

learning and development - consultancy - research EIPA 2011©

European Institute of Public Administration - Institut européen d’administration publique

Tomasz KRAMER Lecturer

Tel: +352 426 230 209Fax: +352 426237

Email: t.kramer@eipa.eu