The constitutional nature of the EU

Question 1

What were the purposes of international cooperation following WWII?

Answer 1

+ peaceful international order

+ protection human rights

• regional economic integration

Question 2

Which is the legal premise for a state to foster such cooperation?

Answer 2

limitation of state sovereignty

Question 3

which are the tools of self-limitation at international level?

Answer 3

• international treaties
• international organisation

Question 4

What are international treaties? What is their connection with International organisations?

Answer 4

agreements signed by 2 or more states which are equally bound to comply with the obligations accepted.

They can be issued by international organisations

Some treaties establish international legal entities composed of member states, that is international organisations.

Question 5

which is the tool of self-limitation at national level?

Answer 5

constitutional clauses, which limit state sovereignty by recognising international laws

such clause can be found in the Italian constitution: article 10, paragraph 1 (“generally recognised principles of international law”)

Question 6

in which constitutions (which state) are usually found such clauses?

Answer 6

The losing countries of WWII: some similarities can be found between the Japanese, [the Italian], the German constitutions and the constitution of the 4th French Republic.

Indeed, the Italian constitution agrees to “limitations of sovereignty” in article 11, the same in which it is is stated that “Italy rejects war”

Question 7

How is the co-existence between international and national legal systems arranged?

Answer 7

There are two approaches:

• monism
• dualism, the dominant one

Question 8

what does monism embrace?

Answer 8

A unitary legal system, composed by international law and norms, and national norms

Question 9

what does dualism embrace?

Answer 9

the coexistence of the two legal systems (national and international) each relying on its own basis

Question 10

[according to the dualist approach] what does the relevance of international law at national level require?

Answer 10

a national source of law recognising international law and allowing it to be enforced at national level

Question 11

which documents constitute the “constitutional basis” of EU?

Answer 11

• Treaty on EU [TEU]
• Treaty on Functioning EU [TFEU]
• The charter of fundamental rights

Question 12

Which is the most important document of the Council of Europe (=”big Europe”, 46 member)?

Answer 12

the European Convention of human rights [1950]

Question 13

Where is the European Court of human rights [ECtHR] based?

Answer 13

Strasbourg

Question 14

Where is the Court of Justice of the European Union [CJEU] based?

Answer 14

Luxemburg

Question 15

Where is the EU Parliament located?

Answer 15

Strasbourg and Brussels

Question 16

Where is European Commission located?

Answer 16

Brussels and Luxembourg

Question 17

Which is the difference bt Bundesstaat and Staatenverbund?

Answer 17

The German Constitutional Court has put forward the dichotomy.

• The former [Bundesstaat] is the federal state (as Germany)
• The latter [Staatenverbund] is an equal union or association of states. In such a union, member states maintain full sovereignty and are **Masters of the Treaties **.

Question 18

What was the German Constitutional Court position?

Answer 18

according to the German Constitutional Court, the EU would be a Staatenverbund

the decision was the product of Ultra Vires review: checking if the EU was going beyond its powers.

Question 19

What are the options about the institutional form of the EU?

Answer 19

• International organisation/confederation
• Federal state
• Federation

Question 20

Which are the international/confederal elements? [3]

Answer 20

• withdrawal and not secession [art. 50 TEU]
• MS as Master of Treaties: unanimity and ratification required
• intergovernmental method

Question 21

What suggest that EU is not a State? [2]

Answer 21

• lacking one people (=constitutive element of a State). Powers are conferred upon by MS
• absence fiscal capacity (financial framework provided by contributions of MS)

Question 22

Which are the federal elements in EU? [7]

Answer 22

• Catalogue of rights (Charter of Fundamental Rights)
• Community method
• Primancy and direct effect EU law
• Common** currency **
• Subsidiarity principle (decisions are retained by MS is Eu is not necessary)
• Principle of sincere/loyal cooperation
• Principle of implicit powers

Question 23

What does Community method embrace?

Answer 23

The Community method underscores the supranational dimension of the EU and empowers the supranational institutions.

Question 24

which are the supranational institutions of EU?

Answer 24

Commission, Parliament and Court of Justice.

The Council of EU and European Council are Inter-governmental institutions

Question 25

What is the main difference between the EU law and international law?

Answer 25

The difference lies in the primacy and direct effect principle of EU law. Indeed, the latter allows EU law to prevail over national law (supreme principles excluded) and it is directly applicable to citizens

Instead, international law applies to states.

Question 26

Which are the elements in favour of the argument that the EU does not have a Constitution?

Answer 26

• formalistic (unsatisfactory) answer: no written document
• EU is not a state and only states have a constitution: TEU and TFEU are international treaties

there is a continuum bt the questions “is the EU a state” and “Does the EU have a constitution?”

Question 27

What is the argument in favour of the existence of an EU Constitution?

Answer 27

The EU has a constitution without a state, because of the constitutional nature of the TFEU, TEU and **Charter of Fundamental Rights **

Question 28

Which is the link bt EU fundamental legal principles and the Council of Europe? [not important]

Answer 28

In art 6 of TEU, the EU recognises the European convention of HR, as well as «Fundamental Freedoms and as they result from the constitutional traditions common to the Member States»

Question 29

What does the argument in favour of a composite constitution state?

Answer 29

The EU has a composite constitution, grounded on EU treaties and national constitutions.

Both recognise each other (through constitutional clauses and treaties) and renounce to be fully sovereign.

in its treaties and clauses, the EU recognises:

• the common constitutional identities of MS,
• the national constitutional identity specific to each MS,
• the right to withdraw «in accordance with its own constitutional requirements»