Part I
Constitutional Foundations
Introduction
What is the European Union? Having started as an international organisation in 1952, should it still be described as such? Or, should it be seen as a State- the-making? In light of the developments discussed in Chapter 1, the Union occupies a place somewhere in between an international organisation of sovereign states and a nation state. This ‘middle ground’ between international and national organisation is however hard to conceive in terms of classic international law. Since the rise of the modern State system in the eighteenth century, we think of political communities exclusively in terms of sovereign States. An entity formed by States is therefore either a new sovereign State – as when England and Scotland formed Great Britain; or it is an international organisation of sovereign States, and the law between these sovereign States – international law – cannot be ‘real’ law because a sovereign State ultimately cannot be legally ‘bound’. All relations between sovereign States must be voluntary and, as such, ‘beyond’ any public legal force.
From the very beginning, this traditional idea of State sovereignty blocked a proper understanding of the nature of the European Union. The latter was said to have been ‘established on the most advanced frontiers of the [international] law of peaceful cooperation’; and its principles of solidarity and integration had even taken it ‘to the boundaries of federalism’. But was the Union inside those boundaries or outside them? And what does federalism here mean? In the absence of a federal theory beyond the State, European thought invented a new word –supranationalism – and proudly announced the European Union to be sui generis. The Union was declared ‘incomparable’; and the belief that Europe was incomparable ushered in the dark ages of European constitutional theory. The sui generis idea is not a theory, because it refuses to search for commonalities.
If the European Union was assuredly not a Federal State, could it be described as a Federation of States? This is the sole question this chapter wishes to address. It presents two – opposing – ‘federal’ perspectives that have been competing with each other over the past 200 years. Section 1 begins by introducing the older US American tradition, which has historically understood a Union of States as a third form of organisation between international and national law. Section 2 moves to the newer German federal tradition. Insisting on the indivisibility of sovereignty, this second tradition has led to the conceptual polarisation described above: a ‘Union of States’ is here either an international organisation – like the United Nations – or a (federally organised) Nation State – like Germany. Sections 3 and 4 apply both – alternative – theories to the European Union. From the perspective of the classic US tradition, the European Union can be seen as a Federation of States, whereas the German tradition reduces it to a (special) international organisation. Which is the better theory here? If legal are meant to explain legal practice, we shall see below that the second theory – insisting on the idea of State sovereignty – runs into serious explanatory difculties and should consequently be discarded. The European Union is thus best understood as a ‘Federation of States’. But let us tread slowly and start with a brief introduction to the constitutional history of the United States.
Cases
Legislation
No legislation available for this chapter.
Figures
Extra Materials
Useful Videos
Useful websites
Further Reading
Books
C. Bickerton, European Integration: From Nation-State to Member State (OUP, 2012)
M. Burgess, Federalism and the European Union: The Building of Europe 1950–2000 (Routledge, 2000)
P. Eleftheriadis, A Union of Peoples (Oxford University Press, 2020)
M. Forsyth, Unions of States: Theory and Practice of Confederation (Leicester University Press, 1981)
P. Hay, Federalism and Supranational Organisations (University of Illinois Press, 1966)
D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (CUP, 2017)
G. Morgan, The Idea of a European Superstate: Public Justification and European Integration (Princeton University Press, 2005)
P. Pescatore, The Law of Integration: Emergence of a New Phenomenon in International Relations, Based on the Experience of the European Communities (Sijthoff, 1974)
S. Rehling Larsen, The Constitutional Theory of the Federation and the European Union (Oxford University Press, 2021)
J. Weiler, The Constitution of Europe (Cambridge University Press, 1999)
Articles
B. Guastaferro, Sincere Cooperation and Respect for National Identities, in: R. Schütze and T. Tridimas, Oxford Principles of European Union Law—Volume I (OUP, 2018), 350
G. Duke, ‘European Constitutionalism and Constituent Power’ (2019) 44 EL Rev. 50
D. Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 ELJ 282
T. Hartley, ‘International Law and the Law of the European Union’ (2001) 72 British Yearbook of International Law 1
K. Lenaerts, ‘Federalism: Essential Concepts in Evolution—The Case of the European Union’ (1998) 21 Fordham International Law Journal 746
C. Schmitt, ‘Constitutional Theory of the Federation’ in Constitutional Theory (Duke University Press, 2008), Part IV
R. Schütze, ‘Constitutionalism and the European Union’ in C. Barnard and S. Peers (eds), European Union Law (Oxford University Press, 2023), 75
R. Schütze, ‘Models of Demoicracy: Some Preliminary Thoughts’, EUI Working Paper Law 2020/08
B. de Witte, ‘The European Union as an International Legal Experiment’ in: G. de Búrca and J.H.H. Weiler (eds.), The Worlds of European Constitutionalism (Cambridge University Press, 2012), 19
D. Wyatt, ‘New Legal Order, or Old?’ (1982) 7 EL Rev. 147
How to Find (and Read) the EU Treaties
The EU Treaties constitute the primary law of the Union. The formula the ‘EU Treaties’ or simply ‘the Treaties’ commonly refers to two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The ‘Treaties’ are the result of a long ‘chain novel’ of consecutive treaties (see Table 20.1). They started out from three ‘Founding Treaties’ that created the European Coal and Steel Community (1951), the European Atomic Energy Community (1957) and the European (Economic) Community (1957). A myriad of subsequent ‘Amendment Treaties’ and ‘Accession Treaties’ gradually changed the textual basis of the three Communities significantly; and this first treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
To simplify the – very complex – textual foundations of the old European Union and European Communities Treaties, the Member States tried to create a single treaty in the early 2000s. The 2004 Constitutional Treaty was indeed intended to repeal all previous treaties; and it was to merge the European Union with the European Communities. Yet the attempt to ‘recreate’ one Union, with one legal personality, on the basis of one treaty failed; and the Member States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
Despite its modest name, the Lisbon Treaty constitutes a radical new ‘chapter’ in the Union’s constitutional chain novel. For while it formally builds on the original ‘Founding Treaties’, it has nonetheless ‘merged’ the old ‘Community’ legal order with the old ‘Union’ legal order into a new ‘Union’ legal order.
Nevertheless, unlike the 2004 Constitutional Treaty, the 2007 Lisbon Treaty has not created a single treaty base for the European Union. Instead, it recognises the existence of two (main) treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The division into two EU Treaties thereby follows a functional criterion: the Treaty on European Union (TEU) contains the general provisions defining the Union, while the Treaty on the Functioning of the European Union (TFEU) contains the specific provisions with regard to the Union institutions and policies. One of the new features of the post-Lisbon era is the possibility of minor treaty amendments instigated by European Council Decisions.
In addition to ‘Amendment Treaties’ there are now also ‘Amendment Decisions’ adopted by the European Council (see Table 21.4). The EU Treaties can today be found on the European Union’s
EUR-Lex website: http://eur-lex.europa.eu/collection/eu-law/treaties.html, but there are also a number of solid paper copies such as Blackstone’s EU Treaties & Legislation or my own EU Treaties and Legislation collection. What is the structure of today’s EU Treaties? The structure of the TEU and TFEU is shown in Table 20.4. The (longer) TFEU is divided into ‘Parts’ – ‘Titles’ – ‘Chapters’ – ‘Sections’ –‘Articles’, while the (shorter) TEU only starts with a division into ‘Titles’. The EU Treaties are joined by numerous Protocols and the ‘Charter of Fundamental Rights’. According to Article 51 TEU, Protocols to the Treaties ‘shall form an integral part thereof’; and the best way to make sense of them is to see them as legally binding ‘footnotes’ to a particular article or section of the Treaties.
By contrast, the Charter is ‘external’ to the Treaties; yet it also has ‘the same legal value as the Treaties’.
How to Find (and Read) EU Secondary Law
The Union publishes all of its acts in the Official Journal of the European Union. Paper versions can be found in every library that houses a ‘European Documentation Centre’, but electronic versions are also openly available on the Union’s EUR-Lex website: http://eur-lex.europa.eu/oj/direct-access.html. The Union distinguishes between two Official Journal series: the L-series and the C-series. The former contains all legally binding acts adopted by the Union (including its international agreements), while the latter publishes all other information and notices. Originally, only the paper version of the Official Journal was ‘authentic’; but since 1 July 2013, electronic versions of the Official Journal (e-OJ) are equally authentic and therefore endowed with formal legal force.
Union secondary law will first mention the instrument in which it is adopted. It will typically have the form of a ‘Regulation’, a ‘Directive’ or a ‘Decision’. This will be followed by two figures. In the past, where the Union act was a regulation, the figure was: number/year; while for directives and decisions this was inversed: year/number. However, since 2015, this has changed and all main Union instruments are now arranged by year/number.treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
Where the year and number are known for a given EU act, the easiest way to find it is to use the Union’s EU-lex search engine: http://eur-lex.europa.eu/homepage.html. Importantly, there may be two or more acts for a given number combination, especially where a ‘legislative’ act has been followed by a non-legislative act. For two types of non-legislative acts – namely: ‘delegated’ and ‘implementing’ acts – the EU Treaties require that they contain the word ‘delegated’ or ‘implementing’ in their title. This is to indicate – at first glance – that these executive acts have been adopted according to a particular decision-making procedure. States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
What is the structure of a piece of Union legislation? After its ‘Title’ there follows a brief summary of the decision-making procedure that led to the adoption of the act – including a reference to the legal competence on which it was based. Thereafter comes the ‘Preamble’, which sets out the reasons for which the Union act has been adopted. The content of the act is subsequently set out in various ‘articles’, which may be grouped into ‘Sections’ and ‘Chapters’. For very technical Union legislation, there may also be an Annex – which, like a ‘Schedule’ in a UK statute, adds detailed provisions ‘outside’ the core content of the act. To illustrate this legislative structure, let us take a closer look at the Services Directive as it would be published in the Official Journal.
How to Find (and Read) EU Court Judgments
All EU cases are identified by a number/year figure. Cases before the Court of Justice are preceded by a C-, while cases decided before the General Court are preceded by a T-( for the French ‘Tribunal’).7 The Civil Service Tribunal prefixed its cases with an F-( for the French ‘Fonction publique’). Following this unique figure come the names of the parties to the case. A full case name would for example be: Case C-144/ 04, Werner Mangold v. Rüdiger Helm. However, since no one can remember all the numbers or all the parties, EU cases often get simply abbreviated by the main party; in our case Mangold.
In the past, judgments of all EU Courts were published in paper form in the purple-bound European Court Reports (ECR). Cases decided by the Court of Justice were published in the ECR-I series; cases decided by the General Court were published in the ECR-II series, while cases decided by the Civil Service Tribunal were published in the ECR-SC series. However, as of 2012, the entire Court of Justice of the European Union decided to go ‘paperless’ and it now publishes its judgments only electronically.8 The two principal websites here are the Court’s own curia website (http://curia.europa.eu/jcms/jcms/j_6), and the Union’s general EUR-Lex website (http://eur-lex.europa.eu/homepage.html). For the purposes of this book, the easiest way is however to go to www.schutze.eu, which contains all the judgments mentioned in the main text – including the ‘Lisbon’ version of all classic EU Court judgments.
Once upon a time, judgments issued by the European Court were – to paraphrase Hobbes –‘nasty, brutish and short’. Their shortness was partly due to a structural division the Court made between the ‘Issues of Fact and of Law’ (or later: ‘Report for the Hearing’), which set out the facts, procedure and the arguments of the parties, on the one hand, and the ‘Grounds of Judgment’ on the other. Only the latter constituted the judgment sensu stricto and was often very short indeed. For the Court originally followed the ‘French’ ideal of trying to put the entire judgment into a single ‘sentence’! A judgment like Van Gend en Loos contains about 2,000 words – not more than an undergraduate essay.
This world of short judgments is – sadly or not – gone. A typical judgment issued today will, on average, be four to five times as long as Van Gend. (And in the worst-case scenario, a judgment, especially in the area of EU competition law, may be as long as 100,000 words – a book of about 300 pages!) This new comprehensiveness is perhaps the product of a more refined textualist methodology, but it also results from a change in the organisation and style of judgments. Modern judgments have come to integrate much of the facts and the parties’ arguments into the main body of a ‘single’ judgment, and this has especially made many direct actions much longer and much more repetitive! The structure of a modern ECJ judgment given under the preliminary reference procedure may be studied by looking at Figure 20.2.
How to Find EU Academic Resources
The literature with regard to European Union law has exploded in the last 30 years. Today, there exists a forest of European law journals and generalist textbooks. Moreover, since the mid 1990s ‘European’ law has increasingly developed specialised branches that are sometimes even taught separately at university (as is the case at my own university). The three main branches here are: European constitutional law, European internal market law and European competition law. The first was explored in Parts I and II, while the second branch (and elements of the third branch) were covered in Part III. In addition to these three ‘bigger’ branches, the last two decades have also seen the emergence of many ‘smaller’ branches, such as European external relations law, European labour law and European environmental law. And there now also exist specialised LLM courses on EU consumer law and EU tax law.
The list of journals (Table 21.5) is by no means comprehensive. It is meant to point the interested reader to a first gateway for an in-depth study of a particular part of European Union law. My selection focuses primarily on English-language academic sources. But it goes without saying that European Union law is a ‘European’ subject with journals and textbooks in every language of the Union.
