The Constitutional Nature of the EU: International Organization, Federal State or Federation of States?

Question 1

What is an international organization?

Answer 1

• An institution that draws membership from at least 3 states.
• Members of the organizations are held together by a formal agreement and this organization is a body that promoted voluntary cooperation and coordination among its member states
• Based on international treaties or conventions and relationship between member states governed by international law
• Vote of unanimity, respect of the sovereignty of each member state
• Decisions addressed only to the states, and never to citizens except for international humanitarian law

Question 2

What is a confederation?

Answer 2

• An entity that was created before a federal state, built on a system of governance in which 2 or more distinct states keep their separate identity and sovereignty but decide to transfer specific powers to a higher authority for reasons of mutual security and efficiency.
• Arises when neighboring and sovereign states come together and decide to cooperate, usually in matters pertaining to diplomacy or foreign policy. Link between states is very weak, and the confederation institutions have very limited powers.
• Treaty signed by member states by which they transfer the exercise of their powers.
• The sovereign are the confederated states

Question 3

What is a federal state?

Answer 3

• Composed of subnational units which have transferred their sovereignty to the federal state, according to a federal constitution
• The federal state is the sovereign, while its sub-units find their foundation in the constitution of the federal state. (≠ a sovereign state finds its foundation in international law)
• Governments, activities etc organized over a hierarchy, with the parliament composed of two houses, one representing the population as a whole, and the other one represents each state.

Question 4

What are the 4 factors that help determine what an entity is?

Answer 4

Legal foundations
Institutional structures
Competences
Relation with the citizens

Question 5

Define sovereignty

Answer 5

2 key definitions : Jean Bodin et Carré de Malberg supreme character of state power, which means that sovereign is a state which is not under the legal dependence of another state.
Sovereign is a state whose power is original and without limits.
Hans Kelsen : A state which finds its foundation in the international legal order, and not in the constitution of another state, is sovereign.

Question 6

Why could we consider that the EU is an International Organization?

Answer 6

1. Legal foundations: created by treaties, and governed by intergovernemental proceedings
2. Right to withdraw: article 50 of the TEU
3. Unanimity vote: The European Council (heads of states), and the Council of the European Union (ministers), decide according to the unanimity vote, so intergovernemental institution
4. Competences: article 5 of the TEU, the EU doesn’t have the competence of its competence, only the member states can decide the spheres and fields on which the EU can act upon, under the principle of conferral
5. Differentiation: possibility to not participate to a European policy, for example common currency, Schengen, Charter of Fundamental Rights,…
6. Areas of national sovereignty: Security, defense, taxation and penal law + for security and defense under the vote of unanimity.

Question 7

What is the principle of conferral?

Answer 7

the European Union shall act only within the limits of the competences conferred upon it by the Member States, article 5 of the TEU

Question 8

Why could we consider that the EU is a federal state?

Answer 8

1. The intention of the founding fathers: create the United States of Europe
2. The institutional context :
3. The qualified majority vote: a solution between unanimity and majority: vote by 55% of the member states
4. The attribution of competences : Broad scope of competences,
5. An autonomous legal order:
6. An internal set of fundamental rights: The charter of fundamental rights
7. Citizenship : article 20 of TFEU, and Maastricht 1992: European citizenship,
8. Economic and Monetary Union:

Question 9

WHy is it an economic and monetary union?

Answer 9

Maastricht article 119, further the process of economic and political integration with the establishment of a monetary union (=> coordination of economic policy making, coordination

Question 10

Why do EU institutions compare to those of a federation?

Answer 10

• The council : The Union of Ministers (similar to the Bundestrat, Senate) where each minister represents his government
• The Parliament: Represents the citizens, similar to the house of representatives, and the citizens vote for their representatives through universal suffrage.
• The Commission : Executes the acts adopted by the European Legislator, competent to propose an act, send representation to council or parliament
• The European Court of Justice: similar to the Supreme Court, plays the role of a constitutional court, an institution that exists in federal states and can either give an interpretation of the treaty, only competent to judge the validity of a decision.

Question 11

What’s a federation of nation states?

Answer 11

Jacques Delors : Nation state can be united and create a new identity, but this new identity does not have to absorb the nation states, and they can remain sovereign.
Not founded upon a demos, but on a telos, a federal pact that is both a treaty and a constitution.

Question 12

What’s a nation state?

Answer 12

Nation state: a sovereign political unit, with a well defined territory, people that are well organized and consider to be a part of a nation, governance of a state, keeps its cultural and religious identity.

Question 13

What’s the issue with the Van Gend & Loos case?

Answer 13

Dutch authorities have applied an import duty of a product, after the entry in force of the EEC Treaty. Does it constitute an infirngement of Article 12?

Question 14

What was the ruling of the Van Gend & Loos case?

Answer 14

the “Community constitutes a new legal order of international law” and it “not only imposes obligations on individuals but is also intended to confer upon them rights which have become part of their legal heritage.”

Question 15

Issue and question in the Costa v ENEL case?

Answer 15

Nationalisation of Italian company and refusal to pay his taxes, requested the court to apply Community Law.
Which legal regime prevails? National law or community law?

Question 16

Ruing in Costa case

Answer 16

Different from ordinary international treaties, its own legal system, which has become an integral part of the legal systems of the member states, and which their courts are bound to apply.

Question 17

Who wrote a piece on federalism and its evolving nature?

Answer 17

Lenaerts

Question 18

What is the EU a result of for Leanaerts

Answer 18

Balance btw desire to create and retain an efficient central authority that can find its origin in specific considerations, and the concern of the component entities to keep or gain their autonomy so that they can defend their own interests

Question 19

Federal aspect of EU according to Lenaerts?

Answer 19

Central authority of the 5 institutions established by article 4 of hte EC Treaty
Large scope of powers conferred to the EU, community pillar : internal market + social policy + education + vocational training + culture + public health + asylum … under treaty of Amsterdam broadening of the scope

Question 20

Define subsidiarity

Answer 20

The principle of subsidiarity laid down in Article 3b of the EC Treaty provides that the exercise of non-exclusive powers of the Community is dependent on the requirement that the objectives of the intended action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.