The question of the legal and therefore the constitutional frame of the European Union was and still is one of the most curious in theory. When I say theory, I don't assume only legal theory, but political and social too. There are many concepts that have solid background, saying that EU is simply international organization with all its elements, but very specific considering the control power of the Member States. On the other side, the fact is that its jurisdiction is very wide and the institutions of EU have a very high level of independence. We cannot forget important points of the law conflicts and the fact that the primary european laws (the laws of community) are supranational and therefore stronger than national laws of the Member States.
So what is the legal nature of the European Union and what do the codified Constitutional treaties, based on unified Constitution of EU actually mean?
It would be impossible to talk on issues of the constitutional frame of the European union without explaining what makes the difference between EU and other political, legal and international organizations. European Union is a sui generis legal system. It is a fact that we cannot and should not try to avoid. Since I've already mentioned that there are different theories refering to the legal nature of this system, the best way to start this analysis is with the two thesis:
1. European Union is only the frame structure of international collaboration
2. European Union is unique international organization
The first thesis supporters say that the EU is only cover structure for three communities (at this point only two) and the two pillars of intergovernmental collaboration (title V and VI). Not only that EU is not supranational organization, but it is not international organization at all. Their thesis is supported by the fact that EU doesn't have its own unique institutional frame, but it uses the one that belongs to European Community regarding certain areas. Since the EU doesn't have its institution it cannot be an international organization. The conclusion can go the other way round, if the EU is not the subject of traditional international law then it cannot have its institutions.
The second thesis refers to EU as a unique international organization with its own legal system that gathers three communities and two intergovernmental pillars. As we can see, we're talking about very special constitutional structure whose unique elements are shown through:
1. Common aims
2. Common institutions
3. Common values
4. Common procedure of changing the Constitutional Treaty
The authors are very aware of the fact that EU cannot be „pushed“ into traditional international law, but that it has most of basic elements of international law subject.
On the end, in theory is very present the claim that connects these two views. This would be some „middle approach“. For these authors EU is a very specific frame of international collaboration of Member States in areas of foreign and home affairs, that in absence of its own institutions „uses“ the ones of European community. In this perspective, EU is still without international subject position, but it is a structure sui generis, not a simple cover for international collaboration.
This third thesis is the one that legal theory mostly accepts whan arguing on basis of the constitutional frame of the Union.
The constitutional frame of EU is very complexed, especially whan you consider treaties that were sort of amendments to certain areas of regulation.. Those are split and very long legal texts. Focused on this issue and the future of the Union, the European Council met in Laeken in 2001.
Member states arranged the text that was supposed to establish EU on principles of greater democracy, transparency and efficiency. The aim was to create the elements for the future European Constituion.
The most imoprtant and largest TCE consequences would be:
1. By gathering all norms and treaties, the „greek temple“ constitutional architecture would be out of the system.
2. EU would have some new institutions like the European public prosecutor
3. The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in circumstances of international law. Most significantly, it is able to sign treaties as a single body where all its Member States agree.
4. For the first time, there would be a guaranted the right to leave the Union voulntarily
Generally this constitution has the direction of cutting the pillar construction of EU. The Treaty on EU constitution was supposed to get ratification in every Member State voting in parliament or on the referendums. On the referendums in France 54,68% and Netherlands 61, 54 % citizens voted no. This simply blocked the process for indefined period. Since the EU constitution didn't enter into the force there is a Reform treaty that leaves the space for the thesis that even radicaly modified, pillar construction of the Union is still present.
In the theory of state and law the EU is a unique phenomena that should stay like that in our future. In case of the EU its best description is diversity and respect of identity. This social structure doesn't necessarly mean sovereignity on every single level or the citizenship in classic sense. Moving towards the formal EU constitution doesn't mean declaring Union as a closed legal system.
It is still part of a process which is transnational and making some corrections in order of better efficency. The Union is an open political process and the sequence of european continuum.
(Alaudina Boškailo, dipl. pravnica,Čapljina; polaznica Treće generacije Političke akademije SDA)