Pre-Lisbon
Before the Lisbon Treaty, the Community (now the European
Union) had legal personality, as stated in Article 281 of the EC
Treaty.
The European Union had the authority to conclude agreements
with other states or international organizations, as authorized by
the Council under Article 24 of the EU Treaty.
Such agreements were binding on the EU institutions, but not
necessarily on individual member states, if they declared the need
to comply with their own constitutional procedures.
The United Nations' International Court of Justice recognized the
LEGAL UN as an international person, different from a states, with its own
PERSONALITY legal personality, rights, and duties.
Reparation for Injuries suffered in the Service of the United
Nations [1949] ICJ Reports 174, 179: This case is significant
because it confirms that the United Nations (UN) has legal
personality as an international person. It clarifies that while the UN
is not a state and its legal personality is different from that of a
state, it still possesses rights and duties.
Post Lisbon
The Lisbon Treaty did not change the legal personality of the
European Union.
Article 47 of the EU Treaty grants international legal personality to
the EU, but it does not turn the EU into a state or a "super-state."
PRINCIPLE OF The legality of the Use by a State of Nuclear Weapons in
CONFERRAL Armed Conflict [1996] ICJ Reports 66, para 25: This case
emphasizes that international organizations, unlike states, do not
possess a general competence. International organizations are
governed by the principle of speciality, meaning they are invested
with powers by the states that create them, and these powers are
limited to the common interests entrusted to them.
International organizations, including the EU, are subjects of
international law and do not possess general competence like
states.
Member states establish international organizations, defining their
powers through treaties, which are limited to the common interests
entrusted to them.
The EU's competences are governed by the principle of conferral,
subsidiarity, and proportionality.
I. The principle of subsidiarity states that action should be
taken at the local level whenever possible.
II. The principle of proportionality ensures that the EU does
not exceed what is necessary to achieve its objectives.
III. Consistency is required when the EU acts, taking all objectives
into account.
Article 5 TEU: establishes the principle of conferral, stating that the
Union's competences are limited to those conferred upon it by the
member states in the Treaties. Competences not conferred to the Union
remain with the member states.
Article 7 TFEU: This article requires the Union to ensure consistency
, between its policies and activities, taking all its objectives into account,
and in accordance with the principle of conferral of powers.
Elements of Conferral:
1. The EU cannot extend its own competences beyond what is
conferred upon it.
2. The EU does not have a general law-making capacity.
3. Every action requires a legal basis (explicit or implied) provided by
the Treaties or Article 352 of the TFEU, which allows the EU to act if
necessary to fulfill treaty obligations.
Article 352 TFEU: This article allows the EU to act in areas not covered by
the Treaties, provided that the action is necessary to achieve objectives
set out in the Treaties.
4. The legal basis determines the division of competences between
the EU and member states.
5. The legal basis must be based on objective factors and be subject
to judicial review.
The appropriate legal basis for EU actions is of constitutional
significance, linking the acts to the empowering provisions of the
Treaties.
Incorrect legal basis can invalidate the act and the EU's consent to
be bound by an agreement.
The division of powers between the EU and member states can
change over time but is a domestic question for the parties
involved.
When approving international agreements, the EU may indicate the
extent of its competence and the division of competences between
the EU and its member states, providing guidance to other parties.
Opinion 1/19 (Istanbul Convention): This opinion highlights the
constitutional significance of choosing the appropriate legal basis
for EU decisions on the conclusion of agreements. It emphasizes
that the EU must link its acts to the provisions of the TFEU that
empower it to adopt such acts.
Ruling 1/78: This ruling states that the exact division of powers
within the Community is a domestic question and does not need to
be determined or set out to other parties. It emphasizes that third
parties have no need to intervene in this matter.
Judgment of 10 January 2006: This judgment pertains to the
dual legal basis used by the EU to approve the Rotterdam
Convention. It highlights that the choice of legal basis gives
indications to other parties regarding the extent of the EU's
competence and the division of competences between the EU and
its member states.
EXPLICIT 1. General Legal Basis for External Action in the Treaties:
ATTRIBUTION Article 216 TFEU provides the legal basis for the Union to conclude
OF EXTERNAL agreements with third countries or international organizations.
COMPETENCE Agreements concluded by the Union are binding on its institutions
S: and Member States.
2. Sectoral Approach:
Article 28 TFEU establishes a customs union within the Union,
covering all trade in goods and involving the prohibition of customs
duties and charges between Member States and third countries.
Before the Lisbon Treaty, the Community (now the European
Union) had legal personality, as stated in Article 281 of the EC
Treaty.
The European Union had the authority to conclude agreements
with other states or international organizations, as authorized by
the Council under Article 24 of the EU Treaty.
Such agreements were binding on the EU institutions, but not
necessarily on individual member states, if they declared the need
to comply with their own constitutional procedures.
The United Nations' International Court of Justice recognized the
LEGAL UN as an international person, different from a states, with its own
PERSONALITY legal personality, rights, and duties.
Reparation for Injuries suffered in the Service of the United
Nations [1949] ICJ Reports 174, 179: This case is significant
because it confirms that the United Nations (UN) has legal
personality as an international person. It clarifies that while the UN
is not a state and its legal personality is different from that of a
state, it still possesses rights and duties.
Post Lisbon
The Lisbon Treaty did not change the legal personality of the
European Union.
Article 47 of the EU Treaty grants international legal personality to
the EU, but it does not turn the EU into a state or a "super-state."
PRINCIPLE OF The legality of the Use by a State of Nuclear Weapons in
CONFERRAL Armed Conflict [1996] ICJ Reports 66, para 25: This case
emphasizes that international organizations, unlike states, do not
possess a general competence. International organizations are
governed by the principle of speciality, meaning they are invested
with powers by the states that create them, and these powers are
limited to the common interests entrusted to them.
International organizations, including the EU, are subjects of
international law and do not possess general competence like
states.
Member states establish international organizations, defining their
powers through treaties, which are limited to the common interests
entrusted to them.
The EU's competences are governed by the principle of conferral,
subsidiarity, and proportionality.
I. The principle of subsidiarity states that action should be
taken at the local level whenever possible.
II. The principle of proportionality ensures that the EU does
not exceed what is necessary to achieve its objectives.
III. Consistency is required when the EU acts, taking all objectives
into account.
Article 5 TEU: establishes the principle of conferral, stating that the
Union's competences are limited to those conferred upon it by the
member states in the Treaties. Competences not conferred to the Union
remain with the member states.
Article 7 TFEU: This article requires the Union to ensure consistency
, between its policies and activities, taking all its objectives into account,
and in accordance with the principle of conferral of powers.
Elements of Conferral:
1. The EU cannot extend its own competences beyond what is
conferred upon it.
2. The EU does not have a general law-making capacity.
3. Every action requires a legal basis (explicit or implied) provided by
the Treaties or Article 352 of the TFEU, which allows the EU to act if
necessary to fulfill treaty obligations.
Article 352 TFEU: This article allows the EU to act in areas not covered by
the Treaties, provided that the action is necessary to achieve objectives
set out in the Treaties.
4. The legal basis determines the division of competences between
the EU and member states.
5. The legal basis must be based on objective factors and be subject
to judicial review.
The appropriate legal basis for EU actions is of constitutional
significance, linking the acts to the empowering provisions of the
Treaties.
Incorrect legal basis can invalidate the act and the EU's consent to
be bound by an agreement.
The division of powers between the EU and member states can
change over time but is a domestic question for the parties
involved.
When approving international agreements, the EU may indicate the
extent of its competence and the division of competences between
the EU and its member states, providing guidance to other parties.
Opinion 1/19 (Istanbul Convention): This opinion highlights the
constitutional significance of choosing the appropriate legal basis
for EU decisions on the conclusion of agreements. It emphasizes
that the EU must link its acts to the provisions of the TFEU that
empower it to adopt such acts.
Ruling 1/78: This ruling states that the exact division of powers
within the Community is a domestic question and does not need to
be determined or set out to other parties. It emphasizes that third
parties have no need to intervene in this matter.
Judgment of 10 January 2006: This judgment pertains to the
dual legal basis used by the EU to approve the Rotterdam
Convention. It highlights that the choice of legal basis gives
indications to other parties regarding the extent of the EU's
competence and the division of competences between the EU and
its member states.
EXPLICIT 1. General Legal Basis for External Action in the Treaties:
ATTRIBUTION Article 216 TFEU provides the legal basis for the Union to conclude
OF EXTERNAL agreements with third countries or international organizations.
COMPETENCE Agreements concluded by the Union are binding on its institutions
S: and Member States.
2. Sectoral Approach:
Article 28 TFEU establishes a customs union within the Union,
covering all trade in goods and involving the prohibition of customs
duties and charges between Member States and third countries.
