WHAT THE EU IS

europeanunion_mv
 WHAT IS THE EUROPEAN UNION?

a STATE? a
(unitary) FEDERATION?

an
a INTERNATIONAL
CONFEDERATION? ORGANIZATION

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 In a broad sense “State” is synonymous with “political organization of a
society”.

STATE a. Being a differentiated political organization.

(unitary)
A state is characterized by: b. Having its own legal order.

c. Being superior to the rest of social

organizations that exist within it.

a. Territory.
A state is comprised of: b. Population.
c. Sovereignty.

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 The Federal State is characterized by six features:

First. The Federal State is a “state of states”: it is a state comprised of territorial entities,
each of which runs its own society.

Second. Number of Constitutions: As a result of the prior feature, in a Federal State there
is a plurality of Constitutions (as many as the number of states + the Federal one).

FEDERATION Third. Distribution of power: The Federal Constitution allocates the different
(decentalization) competences between the federation and the federal states.

Fourth. A Federal Chamber: Where federal states are represented.

Fifth. A Federal Tribunal: To settle any disputes or conflicts of competence between the
states as well as between the states and the federation.

Sixth. The participation of all the states in the amendment of the Constitution.

=> *(The following domains usually fall within the Federal competence: Foreign Affairs,
Defense, the Treasury and the currency)

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 A confederation is a union of states that maintain their own sovereignty and
that are governed by certain common rules. Thus, it represents some form of
intergovernmentalism as the interaction between states takes place on the
basis of sovereign idenpendence.

CONFEDERATION In consequence, a confederation is to be distinguished from a federation on

the following grounds:
(decentralization)
Members in a Confederation maintain a high level of sovereignty and
leave the central government with a limited power (usually to foreign affairs).

Members in a Federation relinquish a large portion of sovereignty in

favor of a central government endowed with a great deal of power.

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 The Confederation typically represents the previous step to establishing a
Federal State. In a Confederation, each member is an independent and
sovereign State that joins with others by means of a Treaty to achieve certain
CONFEDERATION objectives, normally of an international nature. In this case, both the
(decentralization) Confederation and each member are subjects of International Law (have their
own legal personality).
It is essential to distinguish the Confederation from a Federal State. The
Confederation arises from a Treaty, while the legal basis of the Federal State
is a Constitution that establishes that “the territorial organization form of a
State will be federal”.

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 There is a sharp distinction between States as original subjects and international
organizations who have derived personality. This is so since the legal personality of the
latter is conditional upon the will of their member states whose CONSENT is the legal
basis of their personality.

As a result... The EU must stick to its international organization status in spite of its
undeniable singularity.

INTERNATIONAL
ORGANIZATION Like the rest of international organizations, the EU:

Has derived legal personality, conditional upon the will of its members.

It pursues specific goals. (As distinct from States which have a general power and
pursue general goals).

It lacks Locus Standi. (That is the capacity to stand trial).

The origin of its competences is NOT European sovereignty. The States themselves
confer on the EU some of the competencies through the Treaties.

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INTERNATIONAL NONETHELESS,
ORGANIZATION The functions assigned to the EU far exceed, qualitatively and
(of integration) quantitatively, those traditionally assigned to the classic
international organizations.

Furthermore, the EU is entitled to conclude international treaties,

unlike international organizations which are far from developing this
power at the same level as the EU.

THEREFORE,

• The European Union must be regarded as a “supranational-

intergovernmental entity which is somewhere in between an
international organization and a Federal State”. (Quite close to
the concept of Federal State).

FEDERATION
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CATEGORIES OF EU COMPETENCE

Exclusive

Shared

Support, coordination and Supplement

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EXCLUSIVE COMPETENCE
When the Treaties confer on the Union exclusive competence in a specific area,
only the Union may legislate and adopt legally binding acts. The Member States
would only be able to do so themselves if empowered by the Union.

The administrative implementation is relied on the Member States.

Art. 3 TFUE: The Union shall have exclusive competence in the following areas:

a) customs union;
b) the establishing of the competition rules necessary for the functioning of the
internal market;
c) monetary policy for the Member States whose currency is the euro;
d) the conservation of marine biological resources under the common fisheries policy;
e) common commercial policy.
- The Union shall also have exclusive competence for the conclusion of an international
agreement.

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 SHARED COMPETENCE
When the Treaties confer on the Union a competence shared with the Member States in
a specific area, the Union and the Member States may legislate and adopt legally
binding acts in that area However, the exercise of a certain competence by the Union
prevents Member States from exercising such a competence

Art. 4 TFEU: The Union shall have shared competence in the following areas:
a) internal market;
b) social policy, for the aspects defined in this Treaty;
c) economic, social and territorial cohesion;
d) agriculture and fisheries, excluding the conservation of marine biological resources;
e) environment;
f) consumer protection;
g) transport;
h) trans-European networks;
i) energy;
j) area of freedom, security and justice;
k) common safety concerns in public health matters, for the aspects defined in this Treaty.

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SUPPORT, COORDINATION and SUPPLEMENT COMPETENCE

In the areas of support, coordination and supplement the action carried out by the
Union is solely of a complementary nature, without thereby superseding their
competence in these areas.

Art. 6 TFEU: The Union shall have competence to carry out actions to
support, coordinate or supplement the actions of the Member States in:

a) protection and improvement of human health;

b) industry;
c) culture;
d) tourism;
e) education, vocational training, youth and sport;
f) civil protection;
g) administrative cooperation

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PRINCIPLES THAT GOVERN EU COMPETENCE

Principle
of
CONFERRAL

Principle Principle Principios

Principle
Principio
of of de
of
de
SUBSIDIARITY PROPORTIONALITY SUFICIENCIA
SUFFICIENCY OF MEANS
PROPORCIONALIDAD
DE MEDIOS

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 PRINCIPLE OF CONFERRAL (I)
Under this fundamental principle of EU law, laid down in Article 5 of the Treaty on
European Union, the EU acts only within the limits of the competences that EU countries
have conferred upon it in the Treaties.

Competences not conferred on the EU by the Treaties thus remain with EU countries.
(Principle of Presumption of the Member State competence).

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 PRINCIPLE OF CONFERRAL (II)
- THE PROBLEM OF THE COMPETENCE CREEP –

The principle of conferral is

Article 114 TFEU
undermined by two Treaty Provisions:
Article 352 TFEU

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 PRINCIPLE OF SUBSIDIARITY (I)
Also defined in Article 5 of the Treaty on European Union, it is the principle whereby the
EU does not take action (in the areas that fall within the category of shared competence),
unless:
- It is not possible for the States to take any action; or
- It is more effective than action taken at national, regional or local level.

This principle was a milestone in the European integration process since it allowed to fit
together the beliefs of the unionists theories and the federalists theories. It allowed the
preservation of power in the Member States and the setting up of supranational
authorities.

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 PRINCIPLE OF SUBSIDIARITY (II)
- THE PROBLEM OF OVERUSING SUBSIDIARITY –
Legislative
Why? Solution: proposals have
There has traditionally been The EU intervened
excessively in MMSS’s to be notified to
a perceived failure of subsidiarity matters the national
parliaments

The watchdogs of the - The Committee of the Regions;

- EU Courts;
Principle of subsidiarity are: - National Parliaments.

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PRINCIPLE OF PROPORTIONALITY
This principle implies that the means applied to meet the goal set out
by the supranational law does not exceed what is necessary.

PRINCIPLE OF SUFFICIENCY OF MEANS

This principle implies that the Union must be endowed with the
necessary means to meet its goals and develop its policies.

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 Multi-speed
Europe
PRINCIPLE OF FLEXIBILITY
The principle of flexibility is meant to recognize that one or more of the Member States may, in principle, remain outside
certain activities that are being carried out within the single institutional framework of the Union:
-either because they choose to do so;
-or because they do not meet the criteria.

The principle of flexibility was firstly renamed as “closer cooperation” and further referred to as “enhanced cooperation”. In
order for an enhanced cooperation to be set up it is necessary:

- To be undertaken by at least 9 Member States;

- There are no veto rights (except for Common Foreign and Security Policy);
- Interested Member States must address its request to the Commission and if the Commission supports the initiative, the
Council must pass the request by qualified majority and the Parliament’s consent.

*READ: Article 20 TEU and Article 330 TFEU

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GRACIAS
europeanunion_mv

www.linkedin.com/in/miguel-
verdeguer-segarra-eulaw-
eueconomics-competition

www.mveucompetition.com

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