Legal personality and powers of the European Union

Author:Augustin Fuerea

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1. Preliminary considerations

We appreciate that it became known1, in October 2007, after Italy2 and Poland3 have obtained what they requested, through compromises specific to the international law, on what it has already entered in the history of the European Union construction, as the Treaty of Lisbon. The Portuguese Prime Minister, Jose Socrates, the country of whom had provided at the time, the EU Council presidency, said: “It is a victory of Europe! With this treaty, we are able to get out of the impasse. Europe is much stronger after this summit”4. This statement is completed by that offered by the European Commission President, José Manuel Barroso, namely: “It is an agreement that gives to the European Union the capacity to act in the 21st century”5. The place and role of the Treaty of Lisbon, more precisely of changes appeared after its entry into force, internationally, in general and in Europe, in particular, are highlighted, including by Lars Knuchel, on behalf of the Confederation President, Micheline Calmy-Rey, of Switzerland, state which, as we know, is not a member of the European Union. According to Lars Knuchel, “Switzerland welcomes the concluding of the reform agreement which should make the European Union more effective and more democratic. Switzerland expresses its interest in having as partner, bilaterally, a stable European Union, able to work and negotiate”6. And, in addition to what we said, we also mention Rene Schwok’s assertion, professor at the European Institute and at the Department of PoliticalPage 205 Science, University of Geneva, who stated that “the agreement was expected by observers”7. These are some reactions that the Treaty of Lisbon has produced, even since the negotiations.

The treaty has entered into force on December 1st, 2009, and from that moment on, we equally speak of a new modifying treaty, as well as of an institutional treaty. Why? Because on one hand, the Treaty of Lisbon amends the three treaties, namely: the Treaty establishing the European Community (TEC), the Treaty on European Union (TEU) and the Treaty establishing the European Atomic Energy Community8 (TEAEC / Euratom). On the other hand, the Treaty of Lisbon is the first EU treaty that gives it legal personality, bringing to the forefront of international relations a new subject of international law.

The structure of the Treaty of Lisbon is relatively simple. The first two articles (Article 1 with 61 paragraphs and Article 2 with 295 paragraphs) are reserved for amendments to the Treaty on European Union, and respectively, the Treaty establishing the European Community9 (the latter became the Treaty on the Functioning of the European Union - TFEU). The following five articles are dedicated to the final provisions. However, the Treaty is accompanied by numerous Protocols (37) and Declarations (65), plus a preamble and a Final Act.

Among those many changes brought to the Treaty of Lisbon, the following are very important:

- The European Community is replaced by the European Union, which acquires legal personality;

- the disappearance of the three EU pillars established through the Treaty of Maastricht, of 1992, by turning them into EU policies;

- establishing the values and objectives of the Union even from the opening lines of the Treaty. Union values are the reference for future membership of the European Union, as well as for possible sanctions for Member States, if they violate, in a serious and persistent manner, the Treaty provisions;

- the possibility of EU adhesion to the European Convention on Human Rights, by unanimous vote of the Member States;

- the list of fundamental principles governing relations between the Union and Member States (allocation of powers, fair cooperation, equality among states). The Treaty states explicitly that the principle of national security remains the responsibility of each Member State;

- “The European Parliament and the national parliaments have a much greater contribution to EU decision-making, and citizens will be entitled to be informed of decisions taken by ministers, at EU level. All citizens have the opportunity to influence the laws proposed by the European Union;

- for the first time, citizens can directly ask the Commission to propose an initiative of interest to them and within the competence of the Union, by collecting one million signatures from different Member States”10;

- including the clause on the possibility of Member States to withdraw from the Union. Withdrawal is not subject to any conditions, and becomes operational after an agreement between the Union and the State, or two years after the notification of the intention to withdraw, even if an agreement to that effect had not been concluded.

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A deeper study of the European Union legal personality and powers is an important aspect of legal approaches of that period, and a series of conceptual clarification must be made11

2. The Legal Personality of the European Union

Until December 1st, 2009, the European Union was defined as a sui generis entity, with an emerging legal personality, relying in its existence on the three pillars established by the Treaty of Maastricht, namely: the European Communities, the common foreign and security policy, justice and internal affairs12. Among the Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, we find the one through which “The Conference confirms that the European Union has legal personality”, but this fact “does not authorize it in any way to legislate or to act beyond the powers conferred by the Member States by the Treaties “13.

As for the legal personality of the European Union, we notice that the shortest article of the Treaty on European Union, namely Art. 47, establishes for the first time in EU history, the legal personality of this entity: “The Union shall have legal personality”. What legal effect/s does this text produce? It is relatively easy to answer. Thus, from December 1st, 2009, we can say that on the international scene, a new subject of law appears, namely the European Union, if we refer to the definition provided in Art. 1 of the 1975 Convention on the Representation of States in their relations with international organizations with universal character, namely: “an association of states formed by a treaty, with its own constitution and common bodies, having a legal personality distinct from the one of Member States which constitute it”14. Another argument is also “Article 2 of the Convention on the Law of Treaties of 1969 that defines the international organization as an intergovernmental organization, highlighting the quality of members”15. In short, the following aspects result from definitions provided, with application also to the European Union:

- the members of the organization are the states;

- the organization is established following the agreement of the states, expressed by memorandum (for the European Union, the Treaty of Lisbon);

- the organization has its own institutional structure;

- the organization has its own international legal personality distinct from that of its constituent states.

Another consequence of the legal personality conferred to the European Union is that only the Union is authorized to conclude international agreements in its fields of competence. Also, the legal personality allows to the European Union to have a budget, officials and offices, it can sign contracts and receive diplomatic representatives.

Briefly, the acquisition by the Union of a legal personality:

- is the result of a necessary requirement to establish a clear legal status of the Union, internationally, in general and in Europe, in particular;

- “contributes to improving the Union perception and its capacity for action, facilitating the political and contractual activity of the Union, at bilateral and multilateral level, on the international stage, as well as to its presence in other international organizations;

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- contributes to the visibility of the European Union and provides to Member States citizens an identity in relation to the Union;

- constitutes an indispensable element in establishing a protection system for fundamental rights at EU level;

- helps to correct failures resulting from the pillar structure”16.

3. The Powers of the European Union

As stated above, under Statement no. 24 annexed to the Treaty, on grounds of legal personality, which the Union has acquired, it (the Union) is not authorized “in any way to legislate or act beyond the powers conferred to it by Member States by the treaties”17.

In determining the relationship between EU law18 and national law of Member States, including in terms of priority, it is important to realize the distinction between the powers of the Union, on one hand, and of Member States, on the other hand. In this respect, the Treaty of Lisbon establishes a clear division of powers between the European Union and its Member States.


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