⇒ Problems of classifying the EU as sui generis:

• Reflects a particular agenda, masking the EU’s international origin
• Misleading – EU has an international origin and it is a sub-species of international law, which has now evolved
• Makes understanding EU harder if there is nothing to compare it to
• Misguided

⇒ International law (coined by Jeremy Bentham) offers two paradigms for understanding the EU: States and international organizations

⇒ No objective answer to what a state is, but there is some guidance from the Montevideo Convention as to the characteristics of statehood:

• A) Permanent population; B) Defined territory; c) Effective government; D) Capacity to enter into legal relations

⇒ Applying this criteria to the EU:

• Does the EU have a population? No, EU population is secondary in nature and EU citizenship is simply a formalistic legal construct
• Does the EU have territory? No, territory belongs to the Member States and the EU simply has power to exercise power over the Member States' territory
• Does the EU have a government? No - as confirmed in the Lisbon Case – the EU shares governmental powers with the national governments
• Is the EU independent? No, the EU relies on Member States to function

⇒ See the German Federal Constitutional Court Case on Lisbon 2009

⇒ In conclusion, the EU is most likely not a state

• However, a few people do claim the EU is a state e.g. Mancini (a former judge) makes the point of European statehood, but really his claims are made as a matter of political aspiration and just wishes it to be one

⇒ No objective definition, but there are 5 general criteria of an international organisation:

• Created by international organisation; at least one autonomous organ (i.e. some independence); directly governed by international law; prescribed field of activity; proscribed field of activity (i.e. have specific powers/purpose); legal personality (although not always)

⇒ Applying this criteria to the EU:

• Created by international agreement? YES, currently the TEU and TFEU
• At least one autonomous organ? YES, it has lots e.g. CJEU, Commission, etc
• Directly governed by international law? YES, the EU clearly acts on the international level and the case of Intertanko [2008] acknowledges that the EU has to apply with any applicable rules of international law
• Prescribed field of activity? YES, treaties state objectives and competence
• Does the EU have legal capacity? YES, see article 47 TEU

⇒ SO YES, THE EU FITS PERFECTLY INTO THIS DEFINITION!

⇒ BUT: the EU is unlike other international organizations: (a) either it is the most advanced organization or (b) it should not be classified as an international organization at all

⇒ Alternative concepts:

• Supranationalism: the idea that the EU is above Member States
• Compound democracy: the idea the EU is a compound consisting of the EU institutions and the Member States, and that government is shared and exercised on democratic lines (Fabbrini came up with idea)
• Multilevel constitutionalism/governance: the idea that the EU is multilevel because there is a state level and European level and has a constitutional structure (Pernice came up with idea)

⇒ Others have described the EU as a federalist entity; prominently, Robert Schütze has described the EU as a ‘federation of States’ (NOT a federal state!) by relying on the American constitutional tradition

⇒ The USA as an entity 'in between‘ the national and the international:

⇒ The American federal tradition thus implied dual government, dual sovereignty, and also dual citizenship

⇒ Schütze argues that the EU is best characterized as a federation of states as it has very similar characteristics as the 3 points mentioned above:

• Started as an international organization founded by an international agreement, but has since become ‘constitutionalized’
• Principal law-making organs represent the European people (European Parliament) and the Member States (Council);
• Division of powers between the EU and the MS along federal lines

⇒ Schütze’s argument has some holes in it:

• Accuracy of the comparison is dubious i.e. does not fit all EU institutions
• Argument seems to have little contemporary relevance as he takes a historical view on US federalism
• Constitutional perspective: fails to appreciate international law is a separate legal system which is capable of providing its own perspective on the EU

⇒ Legal personality: an entity carrying rights and duties and legal capacities within a particular legal system

⇒ Legal capacity: the authority to perform legally valid and meaningful acts within a legal system e.g. a person can marry and a company cannot

⇒ States: their personality and capacities derive from sovereignty

⇒ International organizations: They are secondary subjects of international law created (mostly) by states - they enjoy legal personality and capacities only if conferred upon them by Member States:

• Either expressly e.g. treaty says Member States has legal capacity/personality
• Or by implication
• Reparation for Injuries case (1949) – it was implied by the International Court of Justice that the United Nations is a legal person

⇒ Transfer of competences to EU considerably limits the Member States' freedom of action

⇒ Member States fear there is an unclear delimitation of power transferred to the EU and creeping competence (i.e. the EU is increasingly gettting more power)

⇒ Public opinion: concern over loss of sovereignty and lack of accountability

⇒ EU institutions: ambivalent (mixed feelings) position

• While EU institutions benefit from creeping competence, they recognise a balance must be kept to ensure public calm

⇒ Does the EU enjoy competence expressly? Yes, many instances in treaties

⇒ Does the EU enjoy competence by implication? Yes, doctrine of implied powers accepted by ECJ in Federation Charbonniere v High Authority [1956]

⇒ Implied powers played major role in external relations of the European Community: Commission v. Council (ERTA) [1971]

• ERTA was an international agreement drawn up by a number of Member States themselves, to regulate road transport system within Europe
• BUT the Commission brought proceedings before the European Court of Justice (ECJ) on the basis ERTA (internal piece of legislation by the Member States adopting certain rules for transport) is contrary to the EEC’s own express power to adopt measures internally
• So an expressed power to adopt measures internally must imply a power to adopt measures externally too
• The ECJ said the Community has the power to adopt decisions on transport internally, so that must imply that they can conclude decisions on the international level because otherwise the EU could not be as effective as it is on the international level

⇒ States may confer competences onto international organizations

• Either by retaining the right to exercise their own corresponding capacities (non-exclusive); i.e, parallel powers they share
• OR by agreeing not exercise their own corresponding capacities (exclusive) i.e. a transfer of power

⇒ Both of these are used in the European context

⇒ More precise delimitation of competences was one of the major objectives of the Lisbon Treaty (one reason for this was to stop creeping competence)

⇒ The Lisbon Treaty tries to do this in a number of ways:

• Stresses principle of conferral (only act where powers conferred)
• Lists different type of EU competence
• Accepts that a reduction of EU competence is possible and that shared competence may be clawed back
• Limits use of flexibility clause (see below)

⇒ The principle of conferral: Art 5(2) TEU: the EU can only act in areas where the Member States have conferred power (the same point is reiterated in Article 1 TEU and Art 4(1) TEU)

⇒ Limits and safeguards: Art 4 TEU: this reiterates the principle of conferral (Art 4(1)) AND gives some more substantive limits on what the EU can do (Art 4(2))

⇒ Exclusive Competence (Art 3 TFEU: only the EU can act in these areas)

⇒ Shared Competence

• Art 4 TFEU = the EU and Member States may both act, except where the EU has already acted
• When the EU adopts a legislative measure falling under Art 4 the Member States can’t adopt measures in that particular area themselves

⇒ Support, coordinate, and supplement

• Art 6 TFEU: the EU may act to support, coordinate and supplement actions of the Member States but may not enact harmonizing legislation
• So the EU can adopt measures here, but Member States do not have to adopt the legislation if they don’t want to!

⇒ Flexibility Clauses

• Art 352 TFEU: the flexibility clauses allows the Council to enact legislation to obtain the treaty objectives even if the EU has no explicit or implied power to act
• It has been interpreted restrictively by the ECJ: Commission v. Council (General Tariff Preferences) [1987]
• Lisbon Treaty imposes further restraints on the article’s use e.g. now need European Parliament consent to use the article

⇒ Subsidiarity: Art 5(3) TEU: the EU should only use its powers if it’s necessary to achieve the objective and if that objective can’t be obtained more efficiently by the Member States themselves

⇒ Operation of Subsidiarity:

• The Lisbon Treaty gave a clear definition of subsidiarity in Article 5(3) TEU:
• Sufficiency
 = action at EU level must be necessary
• Benefit
 = action must bring added value
• Closeness to citizen
• Principle of subsidiarity does not apply to the exclusive competences
• ECJ: does not apply strict standard of review
• UK v Council – court believes subsidiarity is a legal principle which is subject to judicial review, but the level/standards of Judicial Review is very low

⇒ Art 5 TFEU: say says EU must only adopt measures which are necessary in order to achieve the objective i.e. EU should not use power excessively

• Stricter standard of judicial review in applying proportionality
• Spain v Council [2006] - If the legislation/measures taken are not necessary to obtain the objective it will be annulled