Question:
The EU has been described as a “constitutional order of sovereign states”. Explain, illustrate
and critically discuss this description. You should use appropriate examples from across the
topics covered in Semester 1 of the EU Law module.
Answer:
The identity of European Union (EU) is often been doubted as it did not function like
an ordinary international organisation. The term ‘sui generis’ used by lawyers in describing
EU, implied the uniqueness of its structure, role and function, as neither ‘federalism’ nor a
‘constitutional system’ perfectly fits the EU. 1 In this case, the Secretariat of European
Convention established a more proper characterization in picturing EU: A ‘constitutional
order of sovereign states’.2 The concept above means that by adhering to the Union, the
Member States have not divested themselves of their sovereignty in whole or in part, but
they have chosen to ‘pool’ aspects of their respective sovereignties, by exercising those
aspects in common, through the institutions of the Union. 3 In fact, the statement is
accurate to the nature of EU, as EU had been prudence in balancing the supremacy power of
each Member States when exercising its decision-making expedience and at the same time
maintain as a constitutional order of Europe.
To give a short introduction, EU consists of 5 major institutions which endowed with
real decision-making power by the Treaty on European Union (TEU) and Treaty on
Functioning of European Union (TFEU).4 The notions of democracy and fairness can be
found just by looking into the compositions of these institutions. For example, the European
Council, the Council, the Commission and European Court of Justice (ECJ) are made up of 27
members from each States and they are entitled to decision-voting rights, which signifies
1
Ian Harden, ‘The Constitution of the European Union’, 1.
2
The Secretariat of European Convention, ‘Draft Constitutional Treaty of European Union and Related
Documents’, 14 October 2002, 13.
3
Ibid.
4
Treaty on European Union (TEU) Article 13.
1
, the even sovereignty respected by the Union. 5 Whereas the European Parliament, which is
distinct from the other, are elected by EU citizens and the seats assigned to Member States
varies depending on its populations, from 6 MEPs to 96 MEPs. 6 Although some may criticise
this will encroach the doctrine of balance of power, however since European Parliament was
one of the legislative arms of the Union, it should give priority to democracy among EU
citizens over supremacy between Member States. 7 Also to be noted that the power on MEPs
are largely supervisory in nature, hence it should not constitute a threat to the above
doctrine.8
Moving on, as stated under Article 5(2) of TEU, the Union competences are
governed under principle of conferral, where the Union can only act within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein.9 In other words, Member States are the master of Treaties,
unless there is legal basis under the Treaties, EU are not authorized to execute any
legislative action as the power remained on Member States. 10 In such circumstances, Article
2 to 6 of TFEU provided a catalogue of competences where EU can exercise its legislative
power on behalf of Member States, which is also the reason EU is described as a
‘constitutional order’.11 Article 3 TFEU clarified the areas where Union enjoys exclusive
competence, this means that only EU can legislate on the specific subject matter and they
are applicable across Member States, such as competition rules on the functioning of
internal market, monetary policy, commercial policy and custom unions. 12 Again, the
harmonization competence under Article 114 TFEU allows EU to enact rules and standards
to achieve the objectives of internal market.13 Obviously, putting aside environment
protection, the primary role of EU is to lubricant international relation in developing internal
market, ultimately promote the economic value of whole Europe.
5
Margot Horspool, Matthew James and Michael Wells-Greco, European Union Law, 37-67.
6
TEU Article 14(2)
7
Horspool n(5) 56.
8
Ibid 59.
9
TEU Article 5(2)
10
Katy Sowery, ‘The Nature and Scope of the Primary Law-making Powers of the European Union: The Member
States as the “Masters of the Treaties?”’, 1.
11
Treaty on Functioning of European Union (TFEU) Article 2-6.
12
TFEU Article 3.
13
TFEU Article 114.
2
The EU has been described as a “constitutional order of sovereign states”. Explain, illustrate
and critically discuss this description. You should use appropriate examples from across the
topics covered in Semester 1 of the EU Law module.
Answer:
The identity of European Union (EU) is often been doubted as it did not function like
an ordinary international organisation. The term ‘sui generis’ used by lawyers in describing
EU, implied the uniqueness of its structure, role and function, as neither ‘federalism’ nor a
‘constitutional system’ perfectly fits the EU. 1 In this case, the Secretariat of European
Convention established a more proper characterization in picturing EU: A ‘constitutional
order of sovereign states’.2 The concept above means that by adhering to the Union, the
Member States have not divested themselves of their sovereignty in whole or in part, but
they have chosen to ‘pool’ aspects of their respective sovereignties, by exercising those
aspects in common, through the institutions of the Union. 3 In fact, the statement is
accurate to the nature of EU, as EU had been prudence in balancing the supremacy power of
each Member States when exercising its decision-making expedience and at the same time
maintain as a constitutional order of Europe.
To give a short introduction, EU consists of 5 major institutions which endowed with
real decision-making power by the Treaty on European Union (TEU) and Treaty on
Functioning of European Union (TFEU).4 The notions of democracy and fairness can be
found just by looking into the compositions of these institutions. For example, the European
Council, the Council, the Commission and European Court of Justice (ECJ) are made up of 27
members from each States and they are entitled to decision-voting rights, which signifies
1
Ian Harden, ‘The Constitution of the European Union’, 1.
2
The Secretariat of European Convention, ‘Draft Constitutional Treaty of European Union and Related
Documents’, 14 October 2002, 13.
3
Ibid.
4
Treaty on European Union (TEU) Article 13.
1
, the even sovereignty respected by the Union. 5 Whereas the European Parliament, which is
distinct from the other, are elected by EU citizens and the seats assigned to Member States
varies depending on its populations, from 6 MEPs to 96 MEPs. 6 Although some may criticise
this will encroach the doctrine of balance of power, however since European Parliament was
one of the legislative arms of the Union, it should give priority to democracy among EU
citizens over supremacy between Member States. 7 Also to be noted that the power on MEPs
are largely supervisory in nature, hence it should not constitute a threat to the above
doctrine.8
Moving on, as stated under Article 5(2) of TEU, the Union competences are
governed under principle of conferral, where the Union can only act within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein.9 In other words, Member States are the master of Treaties,
unless there is legal basis under the Treaties, EU are not authorized to execute any
legislative action as the power remained on Member States. 10 In such circumstances, Article
2 to 6 of TFEU provided a catalogue of competences where EU can exercise its legislative
power on behalf of Member States, which is also the reason EU is described as a
‘constitutional order’.11 Article 3 TFEU clarified the areas where Union enjoys exclusive
competence, this means that only EU can legislate on the specific subject matter and they
are applicable across Member States, such as competition rules on the functioning of
internal market, monetary policy, commercial policy and custom unions. 12 Again, the
harmonization competence under Article 114 TFEU allows EU to enact rules and standards
to achieve the objectives of internal market.13 Obviously, putting aside environment
protection, the primary role of EU is to lubricant international relation in developing internal
market, ultimately promote the economic value of whole Europe.
5
Margot Horspool, Matthew James and Michael Wells-Greco, European Union Law, 37-67.
6
TEU Article 14(2)
7
Horspool n(5) 56.
8
Ibid 59.
9
TEU Article 5(2)
10
Katy Sowery, ‘The Nature and Scope of the Primary Law-making Powers of the European Union: The Member
States as the “Masters of the Treaties?”’, 1.
11
Treaty on Functioning of European Union (TFEU) Article 2-6.
12
TFEU Article 3.
13
TFEU Article 114.
2
