LECTURE 12
Constitutions establish the main institutions of a state. The Constitution regulates the state and its
bodies. How the three powers work it’s established by the constitution. Apart from sovereignty,
community, and territory, the constitution is another element that creates a state.
Limitations to sovereignty are agreed by the state usually through international agreements.
International agreements are agreements as the contracts signed by private citizens.
Another kind of limitation is the participation in international organizations (created by
international agreements). Those organizations are meant to be permanent.
THE EUROPEAN UNION
How should we consider the European Union? The expression European Union is quite recent
(Treaty of Lisbon, 2007) Before that there was the Economic European Community, and then the
European Community.
Formally the European Union is an international organization since it has been created following
a Treaty (Treaty of Rome, 1957). 11 European States decided to regulate some external
relationships they had together in a permanent organization, an organization meant to last for a
long time.
Could we consider the EU a state? Let’s analyze following the three characteristics of a state.
Sovereignty: possibility to use supreme power and establish legal rules on citizens. The EU has
this kind of characteristic, because differently from any other international organization the EU is
capable of establishing legal rules. The EU can rule-make, make legal rules. This is because
the member states decided to partially delegate, in certain matters, to the EU the task of making
legal rules on that point. According to the European Treaties EU legal rules are stronger than
those ones established by the member states in those matters in which the sovereignty was
transferred to the EU. Legal rules that are established by the European Parliament have the same
value for citizens as the ones established by their state’s parliament.
There is a partial transfer of sovereignty. No other organization has this kind of characteristic.
This circumstance of a state transferring sovereign power to a wider organization is an absolute
peculiarity of the EU. Usually, we find this characteristic in Federal States (e.g., the USA, and
Germany) which are not international organizations but states. In Germany, there are competences
that are of the Federal State – Germany – and others that are left to the landers.
In the same way, some sovereignty is transferred to the EU even though it is an international
organization.
Community: a state has a community that shares the same values. Do we have shared values?
The Treaty of Maastricht talks about shared values (the EU is founded on common values). On
top of that, there are values and purposes that have penetrated European society, since younger
generations consider themselves both state citizens and European citizens. So, the EU can be
considered to have a community. The Treaty of Maastricht talks about values and fundamental
purposes, that are widely shared. Our passports have European Union written on it.
Territory: a state has territory on which it can exercise power. The European Union has tasks
related to territory and territorial protection. There are some competencies of the EU that are
closely related to territorial matters. For instance, internal borders have no frontiers. The Frontex
Program is a program established by the EU in order to protect the external frontiers of the EU.
For example, to control immigration, patrols are established, which usually is a competency of a
state (the protection and patrol of a territory). The protection of a territory (not only military but also
economically) is usually the competency of a state. Economic protection is the taxation of goods
coming from states outside the EU.
Apparently, we may see all the elements to define the EU as a state. So, can we consider the EU a
state? No, we cannot consider the EU a fully sovereign state, and it is not comparable to a federal
state. We have not reached a full agreement on the transformation of the EU into a state.
THE EUROPEAN CONSTITUTION
A subtle attempt to create a new EU state was made 20 years ago (2003-2004), by the same
member states, and after long negotiations issued a treaty to establish the European Constitution
(Treaty establishing a constitution for Europe). This treaty was supposed to unify all the existing
treaties and create the European Constitution. If the European Constitution had passed, we would
have had another important element for the creation of a European State.
However, if a federal state is created, Italy, France, Germany, etc. will cease having an
international legal personality. We are talking about states with thousands of years of history.
The EU is an international organization that has been recognized as an independent
international actor that is separate from the member states. So, should the EU have a seat in the
UN general assembly? That would mean recognizing the EU as a full state; it is also a political
debate. Steps forward are being made to create a federal state, but the political debate is still going
on.
An international treaty needs to be ratified by the states’ parliaments. Parliaments need to ratify a
treaty with an act of primary legislation. How many states need to ratify a treaty in order to be
effective? In the EU unanimity is needed, so each member state needs to ratify the treaty. This
rule was established in the Treaty of Rome. The processes of ratification for the European
Constitution were very different for each state. For the European Constitution Treaty, 18
ratifications (there were 25 member states) were reached, some states ratified without asking to
the population (e.g., Italy), and others made referendums. Referendums were held in 4 countries,
with positive results in Spain and Austria/Luxembourg, and negative results in France and the
Netherlands; so, unanimity was not reached, and the ratification process was aborted.
Negations had to start over, and in 2007 another agreement was reached, what later became the
Treaty of Lisbon (the Treaty on the Functioning of the European Union). For some, this Treaty
could be considered the constitution of the EU, but it is not.
SOURCES OF EUROPEAN LAW
The EU is sovereign in the fields the treaties allow it since it is able to establish legal rules. The EU
has binding and non-binding sources of law.
The main sources of law are the treaties - the highest sources of law -, and directives and
regulations - acts of primary legislation issued by the European institutions according to the
treaties.
Regulations are applied directly to all European citizens and legal entities; they have the same
force as statutory law. Normally, regulations provide precise legal rules. Regulations give no
degree of flexibility.
Directives are a more flexible source of law because directives need to be first transposed in an
act of primary legislation in order to be effective. A directive impedes a member state to regulate a
topic autonomously. However, the adaptation of the directive can pass through a degree of
flexibility in order to adapt to specific situations. Directives are used to coordinate legislation at
a national level. Directives are the most iconic way to coordinate member states, they are binding
rules: if a member state does not adopt the directive, it will face consequences.
The main purpose of the EU is to coordinate member states and create homogeneity between
them.
EUROPEAN UNION BODIES AND INSTITUTIONS
For each constitutional power (legislative, executive, judiciary) bodies and institutions (parliament,
governments, and courts) are created that are established in the constitution. The EU, even though
it doesn’t have a constitution, regulates its powers in its treaties and establishes the respective
bodies and institutions that oversee the three constitutional powers. This highlights the ambiguity
of the EU configuration.
The EU has a parliament capable of producing legal rules (legislative power). The UN simply
has an assembly that doesn’t have legislative power.
The EU has also the European Commission, which replicates the same scheme of traditional
government (executive power). The European Commission is composed of several members in
charge of specific affairs that reflect the competencies of the EU. However, we won’t find
commissioners for defense and internal affairs because those affairs are a competence of the
single member states. Hence, the European Commission could be seen as the government of
the European Union.
The EU also has a proper judiciary system. The Treaty of Lisbon provides a double-tier judicial
system. We have the Tribunal of the EU, which is the first-tier court (lower tier), and the Court of
Justice of the EU (second-tier court). The UN doesn’t have a judiciary system.
The double-layer judiciary system works if a citizen makes a claim against an act of the EU
system. But if I make a claim against EU law it is a competence of the national judiciary system,
that however is dependent on the Court of Justice of the EU.
The EU was created not following a fully democratic procedure (typical of international
organizations), since citizens are not members of the EU, but states are. We can vote for the
parliament, but we cannot vote for the commissioner, since the EU parliament members do not
appoint the Commissioners, who are in fact appointed by the majority of member states.
The European Council, composed of the member states’ prime ministers (or depending on the
matter by affairs ministers), has a fundamental task in the rulemaking process. This is
representative of the state, not of the citizens.
This lack of democracy is one of the main obstacles to creating a European state. For instance,
no one ever proposed a European referendum to create a European state.