European Union and European Communities - The Jean
Transcript Of European Union and European Communities - The Jean
THE JEAN MONNET PROGRAM
Professor J.H.H. Weiler
European Union Jean Monnet Chair in cooperation with the
MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW
Professor Armin von Bogdandy
Director of the Max Planck Institute for Comparative Public Law and International Law
EUROPEAN INTEGRATION: THE NEW GERMAN SCHOLARSHIP
Jean Monnet Working Paper 9/03 Werner Schroeder
European Union and European Communities
Max Planck Institute for Comparative Public Law and International Law Heidelberg, 24-27 February 2003
All rights reserved. No part of this paper may be reproduced in any form
without permission of the author.
This project was funded by the Fritz Thyssen Foundation.
ISSN 1087-2221 © Werner Schroeder 2003 New York University School of Law and Max Planck Institute for Comparative Public Law and International Law
Abstract
As long as a formal merger of the EU and the EC to one single legal body has not taken place, a multitude of questions arises from the relationship between EC and EU law. Some of these questions are related to the problem whether the EU possesses legal personality or not. In this context, the concept of dédoublement fonctionnel of the EC institutions is of fundamental importance. However, the ECJ, as a general rule, lacks extensive competences within the framework of the EU Treaty. This is the decisive obstacle for the creation of legal unity of EU and EC. Nevertheless, not only from the political but also from the legal point of view, the borderline between Community and Union law begins to fade. This phenomenon is furthermore underlined by the frequent use of references from one treaty to the other(s), thus establishing legal points of contact between the two systems.
European Union and European Communities
Werner Schroeder*
I. II. III.
1. 2. 3. 4. 5. 6. IV. 1. 2. a) b) 3. a) b) c) d) V. 1. a) b) c) 2. a) b) c) 3. a) b) VI. 1. 2. a) b) c) VII.
Introduction............................................................................................................................................... 2 The institutional development of the EU .................................................................................................. 4 The state of research ................................................................................................................................. 6 The Temple Model.................................................................................................................................... 7 The Union as a link between intergovernmental and supranational policies ............................................ 7 The Union and the Communities as separate organisations...................................................................... 8 The Union as a ”layered” organisation ..................................................................................................... 9 The merger of Union and Communities.................................................................................................. 10 Provisional results ................................................................................................................................... 10 Autonomy of the Union in public international law................................................................................ 11 The reconstruction of the Union in the light of the theory of the state.................................................... 12 Usefulness of the concept of international legal personality................................................................... 13
Elements of the legal emancipation of a public authority .................................................................. 14 The normative function of international legal personality ................................................................. 15 The international legal personality of the Union..................................................................................... 16 The intention of the Member States ................................................................................................... 16 Autonomous competences of the Union ............................................................................................ 17 The corporate structure of the Union ................................................................................................. 19 The practical reality ........................................................................................................................... 21 The organisational structure of the Union............................................................................................... 23 The uniform public authority of the Union ............................................................................................. 24 Linking public authority to the concept of legitimacy ....................................................................... 24 Common legitimacy of public authority of Union and Communities ................................................ 26 Consequences..................................................................................................................................... 28 The Merger of the European Communities as an example?.................................................................... 29 Merger of the institutions of the Communities .................................................................................. 30 Theory of dédoublement fonctionnel ................................................................................................. 30 Operational Unity of the Communities .............................................................................................. 32 Union and Communities as an operational unit ...................................................................................... 34 The single institutional framework .................................................................................................... 34 Unified structures, but coexistence of Union and Communities ........................................................ 36 One Legal System of Union and Communities? ..................................................................................... 38 The idea of legal unity in the case law of the ECJ .................................................................................. 38 Towards Unity of Union Law and Community Law .............................................................................. 40 Unity of organisation and unity of legal order ................................................................................... 40 Demarcation of competences in the EU Treaty and the EC Treaty.................................................... 42 Mutual influences of Union and Community law .............................................................................. 43 Conclusion: Tensions between fragmentation and unification ............................................................... 46
* Jean Monnet Chair, Institute for International Law, European Law and International Relations, University of Innsbruck, Austria. The author can be contacted via e-mail: [email protected]
1
I.
INTRODUCTION
Art. 1 EU describes the European Union as a new stage of European Integration, with the European Communities as the base, which is complemented by the policies and different forms of cooperation such as the common foreign and security policy and police and judicial cooperation in criminal matters. This description is the reason for the popular understanding of the Union as a Greek temple, which rests on three pillars. According to a more exact view one will recognise that this construction does not answer all questions concerning the legal status of the Union and that it is in its ambivalence symptomatic for the condition of European Integration.1 Discussion and explanations are needed as to whether the Union possesses legal personality. This dispute is linked to the discussion concerning the relationship between the Union and the Communities. At first sight it is a debate on technical matters the results of which can be destroyed by the next intergovernmental conferences. Meanwhile, the organisational status of the Union after the revisions of the Treaties of Amsterdam 1997 and Nice 2001 is not clear.2 After attempts to end this amorphous condition and to merge the Union and the Communities were rejected several times by the majority of the Member States, it is quite possible that a medium-term stabilisation of the condition will be achieved. In the meantime, the questions concerning the state and the internal order of the Union cannot remain unanswered because the creation of a clear and comprehensible legal structure of the Union is a question of fundamental constitutional significance. It simplifies an identification of the citizens of the Union with the Union itself, it improves the Union’s capacity to act and ultimately it
1 See sharp criticism by D. Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, CML Rev. 30 (1993), 17 (69 et seq.); also D. Curtin/I. Dekker, The EU as a International Organization: Institutional Unity a disguise, in : P. Craig/G. de Burca (eds.), The Evolution of EU Law, 1999, 83; U. Everling, Reflections on the Structure of the European Union, CML Rev. 29 (1992), 1053 et seq. 2 Although there are occasional allusions to it: ” It is clear that this situation, due to historical circumstances, cannot go on for long time: it should and it can be drastically modified”, J. Lipsius, The 1996 Intergovernmental Conference, ELR 20 (1995), 235 (265).
2
contributes to a clearer assignment of legal action between the Union and the Member States on the one hand, and between the Union and the European Communities on the other hand. So, the solution for this problem forms part of the ”constitutionalisation” of the EU because the creation of transparency and comprehensibility of the legal structures of the Union is the overall objective of European constitutional reform.3 Apart from this, the above questions have practical relevance. The question whether the European Union possesses legal personality is crucial for knowing whether the Union itself or the Member States have the competence to conclude certain treaties under international law, whether they are allowed to establish diplomatic representations or whether they are liable according to the principles of responsibility in international law for damages caused by a joint action in the field of CFSP.4 Whoever wants to accept legal personality for the Union must also remember the practical impact on the organisational relationship with the European Communities and the connecting- and separating line between the Treaty on European Union, the Community Treaties and the law of the Member States. This will be examined in the following article, which is, after an overview of the institutional development of the Union (II.) and of the status of research on the Union’s legal status (III.) primarily dedicated to the question of legal personality (IV.) of the Union, to the examination of the organisational structure of the Union (V.) and the existence of a legal system of the Union and its relation to the law of the Communities (VI.) Finally it tries to explain the strange constitutional relationship between the Union and the Communities (VII.).
3 J. Schwarze, Europäische Verfassungsperspektiven nach Nizza, NJW 2002, 993 (996); Report on the legal personality of the European Union, 21.11.2001, PE 304.279; see already A. v. Bogdandy/M. Nettesheim, Die Europäische Union: Ein einheitlicher Verband mit eigener Rechtsordnung, EuR 1996, 3 A. v. Bogdandy, Organizational Proliferation and Centralization, in: N. Blokker/H. Schermers (eds.), Proliferation of International Organizations, 2001, 177 (178). 4 R. Dehousse, From Community to Union, in: Schwarze (ed.), Europe after Maastricht- An ever closer Union?, 1994, 8 et seq.
3
II. THE INSTITUTIONAL DEVELOPMENT OF THE EU
With the Treaty on European Union, concluded in Maastricht on 7th February 19925, the Union was founded as a new legal creation on the Communities (Art. 1(3) EU). The Treaty on European Union is arranged as a framework treaty. Due to this, one can assume that there is, after Maastricht, another legal categorie above Community law, which provides the common legal framework for the activities of the Union and the Communities. In this context, one will find the common objectives in Art. 2 EU, a common institutional and legal framework according to Art. 3(1) EU, a European Council in Art. 4 EU that formulates final conclusions for Community and Union, the commitment of the European Parliament, Council, Commission, Court of Justice and the Court of Auditors to the Union and the Community Treaties in accordance with Art. 5 EU and also final provisions concerning accession, amendment of treaties, coming into force etc under Arts. 46 to 53 EU, which are valid for both Community and Union. The questions concerning the relationship between the new Union and the existing Communities and the legal relationship between the EU Treaty and the three Community Treaties remain unanswered. The practice of the existing Community institutions after the entering into force of the Treaty of Maastricht has increased the uncertainty concerning legal status. For example, the Council acts as Council of the European Union, even if it acts in Community affairs. 6 Besides, since Maastricht, the Commission calls itself ”European Commission”. 7 It is not necessary to go more deeply into the question whether the aforementioned redesignations are legally correct8 because they have no influence on the attribution or legality of measures based on the EU Treaty or the Community Treaties.
5 OJ 1992 No C 191, 1. 6 Council Decision (93/591/EC) of 8 November 1993 concerning the name to be given to the Council following the entry into force of the Treaty on European Union, OJ 1993 No L 281, 18. 7 Not in legal texts, see resolution of the European commission of 17.11.1993, in: EuZW 1994, 34. 8 Affirmative: A.v. Bogdandy/M. Nettesheim, Die Europäische Union: ein einheitlicher Verband mit eigener
4
No clarification concerning the legal status and the legal structure of the Union was achieved
at the Intergovernmental Conference in Amsterdam. The Dutch proposal, which characterised
the Union as the legal successor of the European Communities, vested with legal personality and capacity to act, was not accepted.9 The Treaty amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts from 2nd October 199710 does not modify the unclear structures of the Union and the relationship between
Union law and Community law. But, the new Arts. 24 and 38 give the Council the right to
conclude ”agreements” with international organisations or third party states in the fields of CFSP and PJCC.11 Nevertheless, it remains unanswered for whom or for which legal entity
the Council concludes these agreements.
As a general rule, the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 26th January 200112 does
not modify this legal situation. Essentially, the Treaty deals with the composition and the
cooperation of the institutions within the framework of Community law. For this study it is of
special interest that in the field of Union policies, i.e. CFSP and PJCC, a qualified majority is
more frequently used, and also that the new provisions in Art. 24(6) and Art. 38 together with
Art. 24(4) and(6) EU state that the agreements concluded by the Council of the European
Union are binding for the Union’s institutions. Art. 254 EC recognises a sort of unification of
Union and Community. As a consequence of the fact that legal acts of the Union in the fields
of CFSP and PJCC are also published in the Official Journal, the publication organ of the
Communities has been renamed the ”Official Journal of the European Union”. Some
Rechtsordnung, NJW 1995, 2327, note 47 with reference to the right of self-organisation of the institutions; opposed: M. Pechstein/Ch. Koenig, Die Europäische Union, 2nd ed. 2000, para. 182 et seq. 9 Conference of the Representatives of the Governments of the Member States, Addendum to: A general outline for a draft revision of the treaties, CONF/2500/96 ADD 1 of 20.03.1997, Chapter 4, 46 et seq. 10 OJ 1997 No C 340, 111. 11 See S. Marquardt, The conclusion of international agreements under Art. 24 of the Treaty on European Union, in : V. Kronberger (ed.), The EU and the international Legal order: Discord or Harmony?, 2001, 333 et seq.; G. Hafner, The Amsterdam Treaty and the treaty-making power of the European Union, in: Festschrift für Ignaz Seidl-Hohenveldern, 1998, 257 et seq.
5
tendencies towards unification in the EU can also be recognised in the minutes on the financial consequences of the expiry of the Treaty establishing the European Coal and Steel Community and the Coal and Steel Research Fund. After its expiry on 23 July 2002, the Treaty was repealed for the benefit of the EC. In accordance with Art. 1 of the minutes, all assets and liabilities pass over to the EC. The scope of application of the EC Treaty also includes issues formerly in the ECSC.13 At present, under the title ”post - Nice process” a discussion is taking place concerning the future of the Union, which aims at preparing for the Intergovernmental Conference in 2004. Questions about the legal status of the Union and the EU Treaty are important parts of this discussion.14 The constitutional character of this discussion is highlighted by the fact that it deals with topics that are being discussed in the Convention established by the European Council in Laeken on 14th/15th December 2001 on the topic of ”Toward a constitution for European citizens”.15 A working group of the convention is discussing the question of legal personality of the Union, and especially the question whether the Union should obtain its legal personality due to a merger with the communities or through the creation of an additional legal person. Moreover, it is investigating the consequences of such a procedure for the demarcations between the law of the Union and the Communities.16
III. THE STATE OF RESEARCH
After Maastricht, the legal value of the phenomenon ”Union” was rather dubious in legal
12 OJ 2001 No C 80, 1. 13 See also Decision of the Representatives of the Governments of the Member States on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel - Statements, OJ 2002 No L 79, 42. 14 See number 5 of Declaration 23 on the future of the Union, Final Act of the Treaty of Nice, OJ 2001 No C 80, 1. 15 See Annex I, European Council Laeken, Presidency Conclusions, 14/15 December 2001, Doc. SN 300/1/01
REV 1; see also Report of the European Parliament on the Legal Personality of the European Union,
21.11.2001, PE 304.279, 5 et seq. and 12 et seq. 16 See Doc. CONV 73/02 of 31.05.2002; Doc CONV 132/02 of 19.06.2002.
6
research. In the meantime there have been some attempts to classify the Union and its constitutional relationship to the Communities in a dogmatic way.
1. The Temple Model The temple model dominates not only in public opinion, but also in academic writing.17 It is based on Art. 1(3) EU and implies that together with the European Communities, CFSP and PJCC the Union is built on three pillars. The Common Provisions represent the roof of the temple and the Final Provisions the socle, both being applicable to all pillars. The temple model is a political metaphor which contributed to general use of the notion ”Union” in popular language to designate all activities which occur in connection with the single institutional framework of Art. 3 EU. The acts of the Union are terminologically attributed to the Union, regardless of whether it is referred to a legal act according to the EC Treaty or to a measure of the Union under Title V or VI EU. Legally speaking, the model is ultimately not a satisfactory solution because it does not reveal how the organisations and institutions, described in the EC Treaty, relate to one another. The picture is distorted in particular insofar as the communities are in the same row of pillars as the CFSP and PJCC. 18
2. The Union as a link between intergovernmental and supranational policies Among the dogmatic explanations, there is one opinion in particular which sees the Union as a form of cooperation between the Member States that does not have legal personality and at the same time as the roof for the Communities possessing legal personality. The Union is classified as an intergovernmental platform to coordinate national policies in the fields of
17 See in connection with the temple model M. Schweitzer/W. Hummer, Europarecht, 1996, para. 58; G. Isaac, Droit Communautaire General, 1999, 12 et seq.; BVerfGE 89, 155 (159) – Maastricht. 18C. Busse, Die völkerrechtliche Einordnung der Europäischen Union, 1999, 162 et seq. and 256 et seq. qualifies the CFSP and PJCC as international organisations; critical Curtin, see note 1, 23 et seq.; B. de Witte, The Pillar Structure and the Nature of the European Union, in: T. Heukels/N. Blokker/M. Brus (eds.), The European Union
7
Professor J.H.H. Weiler
European Union Jean Monnet Chair in cooperation with the
MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW
Professor Armin von Bogdandy
Director of the Max Planck Institute for Comparative Public Law and International Law
EUROPEAN INTEGRATION: THE NEW GERMAN SCHOLARSHIP
Jean Monnet Working Paper 9/03 Werner Schroeder
European Union and European Communities
Max Planck Institute for Comparative Public Law and International Law Heidelberg, 24-27 February 2003
All rights reserved. No part of this paper may be reproduced in any form
without permission of the author.
This project was funded by the Fritz Thyssen Foundation.
ISSN 1087-2221 © Werner Schroeder 2003 New York University School of Law and Max Planck Institute for Comparative Public Law and International Law
Abstract
As long as a formal merger of the EU and the EC to one single legal body has not taken place, a multitude of questions arises from the relationship between EC and EU law. Some of these questions are related to the problem whether the EU possesses legal personality or not. In this context, the concept of dédoublement fonctionnel of the EC institutions is of fundamental importance. However, the ECJ, as a general rule, lacks extensive competences within the framework of the EU Treaty. This is the decisive obstacle for the creation of legal unity of EU and EC. Nevertheless, not only from the political but also from the legal point of view, the borderline between Community and Union law begins to fade. This phenomenon is furthermore underlined by the frequent use of references from one treaty to the other(s), thus establishing legal points of contact between the two systems.
European Union and European Communities
Werner Schroeder*
I. II. III.
1. 2. 3. 4. 5. 6. IV. 1. 2. a) b) 3. a) b) c) d) V. 1. a) b) c) 2. a) b) c) 3. a) b) VI. 1. 2. a) b) c) VII.
Introduction............................................................................................................................................... 2 The institutional development of the EU .................................................................................................. 4 The state of research ................................................................................................................................. 6 The Temple Model.................................................................................................................................... 7 The Union as a link between intergovernmental and supranational policies ............................................ 7 The Union and the Communities as separate organisations...................................................................... 8 The Union as a ”layered” organisation ..................................................................................................... 9 The merger of Union and Communities.................................................................................................. 10 Provisional results ................................................................................................................................... 10 Autonomy of the Union in public international law................................................................................ 11 The reconstruction of the Union in the light of the theory of the state.................................................... 12 Usefulness of the concept of international legal personality................................................................... 13
Elements of the legal emancipation of a public authority .................................................................. 14 The normative function of international legal personality ................................................................. 15 The international legal personality of the Union..................................................................................... 16 The intention of the Member States ................................................................................................... 16 Autonomous competences of the Union ............................................................................................ 17 The corporate structure of the Union ................................................................................................. 19 The practical reality ........................................................................................................................... 21 The organisational structure of the Union............................................................................................... 23 The uniform public authority of the Union ............................................................................................. 24 Linking public authority to the concept of legitimacy ....................................................................... 24 Common legitimacy of public authority of Union and Communities ................................................ 26 Consequences..................................................................................................................................... 28 The Merger of the European Communities as an example?.................................................................... 29 Merger of the institutions of the Communities .................................................................................. 30 Theory of dédoublement fonctionnel ................................................................................................. 30 Operational Unity of the Communities .............................................................................................. 32 Union and Communities as an operational unit ...................................................................................... 34 The single institutional framework .................................................................................................... 34 Unified structures, but coexistence of Union and Communities ........................................................ 36 One Legal System of Union and Communities? ..................................................................................... 38 The idea of legal unity in the case law of the ECJ .................................................................................. 38 Towards Unity of Union Law and Community Law .............................................................................. 40 Unity of organisation and unity of legal order ................................................................................... 40 Demarcation of competences in the EU Treaty and the EC Treaty.................................................... 42 Mutual influences of Union and Community law .............................................................................. 43 Conclusion: Tensions between fragmentation and unification ............................................................... 46
* Jean Monnet Chair, Institute for International Law, European Law and International Relations, University of Innsbruck, Austria. The author can be contacted via e-mail: [email protected]
1
I.
INTRODUCTION
Art. 1 EU describes the European Union as a new stage of European Integration, with the European Communities as the base, which is complemented by the policies and different forms of cooperation such as the common foreign and security policy and police and judicial cooperation in criminal matters. This description is the reason for the popular understanding of the Union as a Greek temple, which rests on three pillars. According to a more exact view one will recognise that this construction does not answer all questions concerning the legal status of the Union and that it is in its ambivalence symptomatic for the condition of European Integration.1 Discussion and explanations are needed as to whether the Union possesses legal personality. This dispute is linked to the discussion concerning the relationship between the Union and the Communities. At first sight it is a debate on technical matters the results of which can be destroyed by the next intergovernmental conferences. Meanwhile, the organisational status of the Union after the revisions of the Treaties of Amsterdam 1997 and Nice 2001 is not clear.2 After attempts to end this amorphous condition and to merge the Union and the Communities were rejected several times by the majority of the Member States, it is quite possible that a medium-term stabilisation of the condition will be achieved. In the meantime, the questions concerning the state and the internal order of the Union cannot remain unanswered because the creation of a clear and comprehensible legal structure of the Union is a question of fundamental constitutional significance. It simplifies an identification of the citizens of the Union with the Union itself, it improves the Union’s capacity to act and ultimately it
1 See sharp criticism by D. Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, CML Rev. 30 (1993), 17 (69 et seq.); also D. Curtin/I. Dekker, The EU as a
2
contributes to a clearer assignment of legal action between the Union and the Member States on the one hand, and between the Union and the European Communities on the other hand. So, the solution for this problem forms part of the ”constitutionalisation” of the EU because the creation of transparency and comprehensibility of the legal structures of the Union is the overall objective of European constitutional reform.3 Apart from this, the above questions have practical relevance. The question whether the European Union possesses legal personality is crucial for knowing whether the Union itself or the Member States have the competence to conclude certain treaties under international law, whether they are allowed to establish diplomatic representations or whether they are liable according to the principles of responsibility in international law for damages caused by a joint action in the field of CFSP.4 Whoever wants to accept legal personality for the Union must also remember the practical impact on the organisational relationship with the European Communities and the connecting- and separating line between the Treaty on European Union, the Community Treaties and the law of the Member States. This will be examined in the following article, which is, after an overview of the institutional development of the Union (II.) and of the status of research on the Union’s legal status (III.) primarily dedicated to the question of legal personality (IV.) of the Union, to the examination of the organisational structure of the Union (V.) and the existence of a legal system of the Union and its relation to the law of the Communities (VI.) Finally it tries to explain the strange constitutional relationship between the Union and the Communities (VII.).
3 J. Schwarze, Europäische Verfassungsperspektiven nach Nizza, NJW 2002, 993 (996); Report on the legal personality of the European Union, 21.11.2001, PE 304.279; see already A. v. Bogdandy/M. Nettesheim, Die Europäische Union: Ein einheitlicher Verband mit eigener Rechtsordnung, EuR 1996, 3 A. v. Bogdandy, Organizational Proliferation and Centralization, in: N. Blokker/H. Schermers (eds.), Proliferation of International Organizations, 2001, 177 (178). 4 R. Dehousse, From Community to Union, in: Schwarze (ed.), Europe after Maastricht- An ever closer Union?, 1994, 8 et seq.
3
II. THE INSTITUTIONAL DEVELOPMENT OF THE EU
With the Treaty on European Union, concluded in Maastricht on 7th February 19925, the Union was founded as a new legal creation on the Communities (Art. 1(3) EU). The Treaty on European Union is arranged as a framework treaty. Due to this, one can assume that there is, after Maastricht, another legal categorie above Community law, which provides the common legal framework for the activities of the Union and the Communities. In this context, one will find the common objectives in Art. 2 EU, a common institutional and legal framework according to Art. 3(1) EU, a European Council in Art. 4 EU that formulates final conclusions for Community and Union, the commitment of the European Parliament, Council, Commission, Court of Justice and the Court of Auditors to the Union and the Community Treaties in accordance with Art. 5 EU and also final provisions concerning accession, amendment of treaties, coming into force etc under Arts. 46 to 53 EU, which are valid for both Community and Union. The questions concerning the relationship between the new Union and the existing Communities and the legal relationship between the EU Treaty and the three Community Treaties remain unanswered. The practice of the existing Community institutions after the entering into force of the Treaty of Maastricht has increased the uncertainty concerning legal status. For example, the Council acts as Council of the European Union, even if it acts in Community affairs. 6 Besides, since Maastricht, the Commission calls itself ”European Commission”. 7 It is not necessary to go more deeply into the question whether the aforementioned redesignations are legally correct8 because they have no influence on the attribution or legality of measures based on the EU Treaty or the Community Treaties.
5 OJ 1992 No C 191, 1. 6 Council Decision (93/591/EC) of 8 November 1993 concerning the name to be given to the Council following the entry into force of the Treaty on European Union, OJ 1993 No L 281, 18. 7 Not in legal texts, see resolution of the European commission of 17.11.1993, in: EuZW 1994, 34. 8 Affirmative: A.v. Bogdandy/M. Nettesheim, Die Europäische Union: ein einheitlicher Verband mit eigener
4
No clarification concerning the legal status and the legal structure of the Union was achieved
at the Intergovernmental Conference in Amsterdam. The Dutch proposal, which characterised
the Union as the legal successor of the European Communities, vested with legal personality and capacity to act, was not accepted.9 The Treaty amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts from 2nd October 199710 does not modify the unclear structures of the Union and the relationship between
Union law and Community law. But, the new Arts. 24 and 38 give the Council the right to
conclude ”agreements” with international organisations or third party states in the fields of CFSP and PJCC.11 Nevertheless, it remains unanswered for whom or for which legal entity
the Council concludes these agreements.
As a general rule, the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts of 26th January 200112 does
not modify this legal situation. Essentially, the Treaty deals with the composition and the
cooperation of the institutions within the framework of Community law. For this study it is of
special interest that in the field of Union policies, i.e. CFSP and PJCC, a qualified majority is
more frequently used, and also that the new provisions in Art. 24(6) and Art. 38 together with
Art. 24(4) and(6) EU state that the agreements concluded by the Council of the European
Union are binding for the Union’s institutions. Art. 254 EC recognises a sort of unification of
Union and Community. As a consequence of the fact that legal acts of the Union in the fields
of CFSP and PJCC are also published in the Official Journal, the publication organ of the
Communities has been renamed the ”Official Journal of the European Union”. Some
Rechtsordnung, NJW 1995, 2327, note 47 with reference to the right of self-organisation of the institutions; opposed: M. Pechstein/Ch. Koenig, Die Europäische Union, 2nd ed. 2000, para. 182 et seq. 9 Conference of the Representatives of the Governments of the Member States, Addendum to: A general outline for a draft revision of the treaties, CONF/2500/96 ADD 1 of 20.03.1997, Chapter 4, 46 et seq. 10 OJ 1997 No C 340, 111. 11 See S. Marquardt, The conclusion of international agreements under Art. 24 of the Treaty on European Union, in : V. Kronberger (ed.), The EU and the international Legal order: Discord or Harmony?, 2001, 333 et seq.; G. Hafner, The Amsterdam Treaty and the treaty-making power of the European Union, in: Festschrift für Ignaz Seidl-Hohenveldern, 1998, 257 et seq.
5
tendencies towards unification in the EU can also be recognised in the minutes on the financial consequences of the expiry of the Treaty establishing the European Coal and Steel Community and the Coal and Steel Research Fund. After its expiry on 23 July 2002, the Treaty was repealed for the benefit of the EC. In accordance with Art. 1 of the minutes, all assets and liabilities pass over to the EC. The scope of application of the EC Treaty also includes issues formerly in the ECSC.13 At present, under the title ”post - Nice process” a discussion is taking place concerning the future of the Union, which aims at preparing for the Intergovernmental Conference in 2004. Questions about the legal status of the Union and the EU Treaty are important parts of this discussion.14 The constitutional character of this discussion is highlighted by the fact that it deals with topics that are being discussed in the Convention established by the European Council in Laeken on 14th/15th December 2001 on the topic of ”Toward a constitution for European citizens”.15 A working group of the convention is discussing the question of legal personality of the Union, and especially the question whether the Union should obtain its legal personality due to a merger with the communities or through the creation of an additional legal person. Moreover, it is investigating the consequences of such a procedure for the demarcations between the law of the Union and the Communities.16
III. THE STATE OF RESEARCH
After Maastricht, the legal value of the phenomenon ”Union” was rather dubious in legal
12 OJ 2001 No C 80, 1. 13 See also Decision of the Representatives of the Governments of the Member States on the financial consequences of the expiry of the ECSC Treaty and on the research fund for coal and steel - Statements, OJ 2002 No L 79, 42. 14 See number 5 of Declaration 23 on the future of the Union, Final Act of the Treaty of Nice, OJ 2001 No C 80, 1. 15 See Annex I, European Council Laeken, Presidency Conclusions, 14/15 December 2001, Doc. SN 300/1/01
REV 1; see also Report of the European Parliament on the Legal Personality of the European Union,
21.11.2001, PE 304.279, 5 et seq. and 12 et seq. 16 See Doc. CONV 73/02 of 31.05.2002; Doc CONV 132/02 of 19.06.2002.
6
research. In the meantime there have been some attempts to classify the Union and its constitutional relationship to the Communities in a dogmatic way.
1. The Temple Model The temple model dominates not only in public opinion, but also in academic writing.17 It is based on Art. 1(3) EU and implies that together with the European Communities, CFSP and PJCC the Union is built on three pillars. The Common Provisions represent the roof of the temple and the Final Provisions the socle, both being applicable to all pillars. The temple model is a political metaphor which contributed to general use of the notion ”Union” in popular language to designate all activities which occur in connection with the single institutional framework of Art. 3 EU. The acts of the Union are terminologically attributed to the Union, regardless of whether it is referred to a legal act according to the EC Treaty or to a measure of the Union under Title V or VI EU. Legally speaking, the model is ultimately not a satisfactory solution because it does not reveal how the organisations and institutions, described in the EC Treaty, relate to one another. The picture is distorted in particular insofar as the communities are in the same row of pillars as the CFSP and PJCC. 18
2. The Union as a link between intergovernmental and supranational policies Among the dogmatic explanations, there is one opinion in particular which sees the Union as a form of cooperation between the Member States that does not have legal personality and at the same time as the roof for the Communities possessing legal personality. The Union is classified as an intergovernmental platform to coordinate national policies in the fields of
17 See in connection with the temple model M. Schweitzer/W. Hummer, Europarecht, 1996, para. 58; G. Isaac, Droit Communautaire General, 1999, 12 et seq.; BVerfGE 89, 155 (159) – Maastricht. 18C. Busse, Die völkerrechtliche Einordnung der Europäischen Union, 1999, 162 et seq. and 256 et seq. qualifies the CFSP and PJCC as international organisations; critical Curtin, see note 1, 23 et seq.; B. de Witte, The Pillar Structure and the Nature of the European Union, in: T. Heukels/N. Blokker/M. Brus (eds.), The European Union
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