Recalling the first article of the European Union 101 series dealing with the historical origins of the European Union (EU), this piece will concentrate on what type of actor the EU is. The following articles of the European Union 101 series will tackle the EU institutions, the EU as a normative power, and lastly the EU's role in global environmental governance. There has been significant scholarly attention given and efforts made to fit the EU into a category, however, none have been very successful. The EU is a novel and unique entity that possesses various characteristics of different actors. This article will proceed by outlining how the EU does not entirely fit either one of the categories (state and international organization) while adopting numerous elements from each, making the shaping of the EU so unique. In particular, the combination of certain characteristics differentiates the EU from other actors, such as traditional international organizations.
Feng, L. (2016). The European Union [Illustration]. https://ro.pinterest.com/pin/211669251225956832/
In the early days of the European Union, some argued that it was aiming to be a federation, similar to the United States of America, however this view was quickly disproved. To begin with, although the European Union sometimes behaves like a state, it is not one, according to the standard definition enshrined in the Montevideo Convention on the Rights and Duties of States. The first criterion–a defined territory–is not satisfied, as the borders of the EU are defined by the borders and the territory of the EU member states. In other words, the EU does not have its own exclusive territory.
The same line of reasoning highlights that the second criterion of the Montevideo Convention, a permanent population, is not satisfied either. The last two criteria, a stable government and capacity to enter into relation with other states, are not fulfilled either because the EU’s capacity to govern and to interact with other states is limited to a few areas and in so far as the member states have given the EU the powers to do so. The areas where the EU has exclusive competence (only the EU can act, not the member states) are embodied in Article 3 of the Treaty of the Functioning of the European Union, for example, customs union, common commercial policy and competition rules. To illustrate, the EU has concluded a trade agreement with Canada which entered into force in 2017 and it aimed, among others, to lower or remove custom duties and other tariffs on goods traded between the two actors.
Moreover, there are three main aspects specific to any international organization (IO), according to international law governing IOs. First, an IO is established through a treaty concluded between two or more states. The Treaty of Paris (1951) established the European Coal and Steel Community, the forerunner of the EU. This is also stated in Articles 1 and 54 of the Treaty of the European Union, one of the current founding treaties of the EU. Second, an IO has its own institutions, which result in the creation of some degree of autonomy, relative to its member states. In this respect, the EU not only meets this criterion, but it exceeds the standard level of autonomy of any other IO. Particularly, the European Commission is completely independent from the EU member states when performing its duties, and it is tasked with seeking the general interest of the EU (not that of member states).
Traditionally, decision-making in an international organization is conducted through majority voting. In a similar way, most decisions in the EU are adopted by majority voting, meaning that legislation can be adopted even if some member states vote against it. Additionally, IOs have legal personalities, which allow them to conclude agreements and conduct relations with other organizations or states. Likewise, the EU has an international legal personality, and it can enter relations with other states and other international organizations. For example, the EU (and implicitly all of its members) is a member of the World Trade Organization since 1995. Nonetheless, what sets the EU apart from other ordinary IOs is that its legal order is completely autonomous.
Last but not least, IOs are governed by the principle of specialty, meaning that certain limited competences are conferred to them by their member states. In this regard, the EU satisfies this criterion, as stated in Article 5 of the Treaty of the European Union. Notwithstanding, the case of the EU is distinct from that of IOs, because while the powers of IOs typically remain in parallel with those of the member states, the powers of the EU take different forms, usually going beyond the traditional way of IOs. Even though the EU seems to fit the category of an International Organization, the legal requirements of the latter are so broad as to include a wide variety of entities.
Frederick Florin. (2012). The European Union flag flies among European Union member countries’ national flags in front of the European Parliament on October 12, 2012 in Strasbourg, eastern France. [Photograph]. Getty Images.
Furthermore, there is no other organization like the European Union, which makes it difficult to label it as an IO. This view has been upheld numerous times on various occasions and in different settings. For example, the European Commission highlighted that “there are significant differences between traditional international organizations on the one hand and organizations such as the European Union”. This perspective was emphasized and narrowed down by the Court of Justice of the European Union stating that “The founding treaties of the EU, unlike ordinary international treaties, established a new legal order”. The legal order of the EU is distinct from other legal orders because of the autonomy it holds, namely EU law is separate from the domestic law of the member states and from public international law. In other words, the founding treaties of the EU lay down a ‘constitutional order’, reflecting the autonomy of EU law.
In addition, EU law takes precedence over the national law of the member states, even their constitutions, which is unique to the EU. At the same time, the member states give up a certain degree of sovereignty and transfer it to the EU, thus empowering it with specific competences to design and implement legislation. As aforementioned, in some areas such as competition policy, only the EU can create legal instruments, which underscores a supranational design. Because of the polling of sovereignty by member states, the EU is oftentimes considered a supranational organization, yet with intergovernmental features.
By way of conclusion, academic debates, as well as case law, have long focused on defining the European Union, a fairly new entity with remarkable characteristics and incredible potential. Since its foundation, the European Union has had an enormous influence on the global stage regarding economic, political and normative matters. This was possible because of its unique design and setup that allowed it to make significant progress in many areas. Particularly, the EU encompasses a handful of intergovernmental features similar to those of international organizations, but it also goes beyond them, which gives a supranational character. Thus, the European Union can be regarded as a unique organization with a combination of intergovernmental and supranational elements.
Case Opinion 2/13 of the Court (Full Court) of 18 December 2014. (2014). Court of Justice of the European Union.
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