The special legal character of the EU

Table of contents

1. Introduction

2. Categories
2.1. Competence
2.2. Decision-Making
2.3. Division of power
2.4. Federal elements
2.5. Democracy
2.6. Human rights
2.7. Constitution
2.8. Budget

3. Conclusion
3.1. The EU as an international organisation
3.2. The EU as a state
3.3. The special character of the legal system of the EU

4. References

1. Introduction

Looking at the character of the legal system it can be recognised that there are elements of many different legal systems, for instance state, federation, international organisation. Especially from the Treaty of Maastricht in 1992 on there are is a tendence towards a closer unification visible, as the establishment of the European Union and the current debate about a constitution show.

The extent to which the examination of the legal character takes place is, due to the length of the essay and the large number of features of the legal system, a brief one, which can naturally not take in account all the possible arguments.

I will look at 8 categories, which can give good evidence to solve the question of the legal character of the EU.

2. Categories

2.1. Competence

The competence of the EU can only be derived from the Treaties. The EC deals according to Art. 5 (1) EC Treaty within the authorizations and objectives of the Treaty. In each chapter the extent of the powers to act is defined, the so called principle of specific conferment of powers. They do not dispose of a ´competence de la competence` or general power. It lacks therefore a vital principle for being a state.

When applying its competences the EU has to respect the rule of law and especially has to check the necessity of its action and its proportionality. In case of competences which are not solely granted to the EU and which is the case in most political areas it also has to respect the principle of subsidiarity. It allows only actions, which obviously can better be performed on the Community level than in the national states. Finally the EU is bound on special types of action, which are laid down in the Treaties.^[1] This principles are existing in a state, too, especially in a federal state. The examination of the federal elements will take place below.

The scope of the competence is much wider than in international organisations.

It covers to different extent almost all the fields of politics. Concerning economic policy almost all the competences of the national states are shifted to the EU. Only a few, albeit, important areas are still withheld and remain in intergovernmental co-operation, such as defence, diplomacy, education and culture, but also in these areas especially after Maastricht some integration steps are made.^[2]

Within its competence the EU undertake tasks, which normally are reserved for states, such as directive rights towards national authorities and courts and also individuals.

The institutions are in a large extent able to establish new obligations for the member states and enforce these through the ECJ.

Also the legal fixation between the member states is stronger than in international organisations, which is especially expressed in the comprehensive obligatory jurisdiction and the principle of loyalty towards the Community. Most of the international agreements allow their members to refuse to be bound by any rules decided by the organisation.^[3] This was also possible in the EU concerning the third stage of the economic and monetary union, what was used by Denmark and Great Britain. But this opting-out-procedure does not much greater significance.^[4]

2.2. Decision-Making

Decision-Making in the EU mainly takes place in the Council, where the different member states can express their opinions and their will. Because of the unanimity principle in many areas, which the states regard as vital for themselves, it is often possible to block decision or to enforce concessions. The main legislative organ therefore expresses more the will of the governments than of the population.^[5]

This differs as a matter of principle from a state, where the legislative organ should express the interest of the state as a whole.^[6]

So far the system is similar to international organisation. But there are also institutions of the EU involved, which represent the interest of the Community, such as the Commission, the European Parliament EP, and the Economic and Social Council ECOSOC. This is especially noteworthy in case of the Commission, which has the exclusive right to propose a legislative act and in case of the EP, of which in some areas the consent is required to pass an act.^[7]

2.3. Division of power

The division of powers as an important element of a constitutional state also exists in the EU, but it differs from the classical one.

The legislative functions are performed by co-operation of the Council, the Commission and the EP, while the commission has also executive functions. The clear distinction between legislative and executive functions is therefore missing. But this does not mean that there is a danger of a concentration of power in the Council or the Commission, while the powers of the parliament are quite limited. None of the institutions can act autonomously and in the end there is always the possibility of challenging decisions in front of the ECJ. The ECJ represents the fully developed judicative organ of the EU. According to Art. 220 its task is the comprehensive safeguarding of the law. Besides this the ECJ plays also an important role in the development of the law of the EU.^[8]

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^[1] Mueller-Graf, Peter-Christian, Die Kompetenzen der Europäischen Union, in: Weidenfeld, Werner (ed.), Europa-Handbuch, Bundeszentrale fuer politische Bildung, Bonn, 1999, p. 780-786

^[2] Borchardt, Dr. Klaus-Dieter, The ABC of Community Law, 4th edition, Office for Official Publications of the European Communities, Luxemburg, 1994, p. 7/8

^[3] Louis, Jean-Victor, The Community Legal Order, 3rd edition, Office for Official Publications of the European Communities, Luxemburg, 1995. p. 227

^[4] Louis, Jean-Victor, p. 229

^[5] Borchardt, Dr. Klaus-Dieter, p. 44

^[6] Bleckmann, Albert, Europarecht: Das Recht der Europäischen Union und der Europäischen Gemeinschaften, &. Auflage, Carl Heymanns Verlag KG, Köln, 1997, p. 77

^[7] Bleckmann, Alfred, p. 80

^[8] Nicolaysen, Gert, Europa als Rechtsgemeinschaft, in: Weidenfeld, Werner (ed.), Europa-Handbuch, Bundeszentrale fuer politische Bildung, Bonn, 1999, p. 866