What is the European Union
★ International Organization (IO)
★ creature of international law (states have created this international organization by means
of treaties)
→ to achieve specific goals/ to perform specific tasks
→ Equipped with the necessary design (powers, institutions) to achieve those goals/tasks
★ The EU has a regional nature (might be joined only by states in a particular region)
★ There are 2 IO´s in the European Region
➔ European Union → primary legal resources (below)
➔ Council of Europe → European Convention on Human Rights
1) What does it mean that the EU is an International Organization?
● Created by States …
● By means of International Treaties.
● Treaties define its functioning, goals, procedures to produce norms, limits of its powers.
● Currently regulated by the Treaties Lisbon (TEU/TFEU, CFR)
● EU Treaties can be interpreted by referring to VCLT (see rules on leaving the Union)
What are the primary legal resources of the European Union ?
● General provisions on the
TEU (Treaty on the
Union
European Union)
● Democratic principles, EU
principles, Institutions, Enhanced
cooperation, External action
● Specific provisions on the EU
TFEU (Treaty on the
● Rules on EU competences,
Functioning of the European
Functioning of: Institutions, EU
Union)
citizenship, Policies, Decisions
making
What is the legal value of those
Protocols to the Treaties
Protocols?
EU primary legal ● We have to see the protocols
resources like footnotes to the original
treaty which serves as an
interpretative tool (specify
certain notions of the treaty, e.g.
proportionality, helping the states
and the Court of Justice of the
, European Union to interpret the
treaty)
● Written bill of rights for the EU
CFR Charter of Fundamental
● Article 6 TEU provides the same
rights of the European Union
value to the CFR as other
treaties
● Scope of application:
➔ The CFR only applies when
EU law is applicable (for
instance, when MS
implements EU LAW see Art.
51 CFR
2) What is the relationship between the European Convention on Human Rights and the
Charter of Fundamental Rights of the European Union? What are their (legal) effects as
regards EU law?
● Both are catalog of rights, which can be used to protect individual rights within the EU
● ECHR (and ECtHR case law) INDIRECT SOURCE / CFR DIRECT SOURCE (EU LAW,
interpreted by the CJEU)
CFR: ● Early stages: there was no Bill of Rights for the EU. FRs interpreted as general principles
(indirect source of interpretation: constitutional traditions of MSs and International Treaties
signed by EU MSs)
● 2000: CFR was introduced, but not binding
● LISBON TREATY see art 6(1) TEU: CFR is now binding, EU Primary law
● The CFR is applicable only when EU law is applicable (art 51 CFR).
ECHR: ● NOT EU LAW
● The ECHR is not a direct source of EU Law but rights included in the ECHR can be used
indirectly as general principles. (MSs are all parties to the ECHR)
● The Lisbon Treaty indicates that the EU will accede to the ECHR, see art 6 (2) TEU.
However, this accession is currently not negotiated and will not happen in the near future.
● The ECHR is always applicable to MSs’ actions (when violations occur in their jurisdiction) but
not directly to actions of the EU institutions and EU agencies
RELATION? ● The CFR is NOT meant to introduce new rights but to CODIFY existent rights: so close link
with the ECHR as interpreted by the ECtHR (see preamble of the CFR).
● Art 52 (3) CFR Art 53 CFR: the charter will not lower the standard of protection available
under the constitutional system and ECHR. So, the standard of protection set by the ECtHR
on the basis of the ECHR is also the minimum standard of protection for EU law.
,3) Which theory is the most successful in explaining how market integration can lead the EU
Member States to gradually achieve political integration? What are the central tenets of this
theory? Please, explain them briefly.
● The theory of neofunctionalism
● One of its main tenets is the so called “spillover effect”:
➔ Spillover effect: Due to interdependence/harmonization in the economic sector
there is a strong incentive to also cooperate in other sectors in the long term (e.g.
politics)
● Integration in one sector necessitates integration in another sector to secure that the
advantage in the first sector is maximized
4) Can EU Member States expel one Member state from the Union? Explain!
● No, in principle expulsion is not possible
● but based on art 7 (3) TEU the Council voting on a qualified majority may suspend rights
(including voting rights) deriving from EU treaties …
● … when there has been a determination based on art 7(2) TEU that there is a serious
and persistent breach by a MS of the values listed on art 2 TEU (on which the Union is
based) and which are also mentioned as conditions for new members who want to join
the EU (see art 49 TEU).
5) Why is Article 10 TEU important to understand the 'Sui generis nature' of the EU?
● SUI GENERIS (Art. 10 TEU) = of its own kind → Not really a (federal) state … but also
an atypical IO
● Art 10 TEU is important to understand the sui generis nature of the EU since it
establishes that the EU is an international organization that shall function as a
representative democracy. (Usually, IOs are founded by states and only states’ interests
are directly represented).
● Based on art 10 TEU not only MSs but also individuals shall be considered constituents
of the EU. Citizens are also directly represented (and vote their representative at EU
level) in the EP.
● EU citizens are also represented indirectly by the representatives of their own States
(who sit in the Council and in the European Council) and are accountable to citizens at
the national level.
6) Any Member State can withdraw from the EU based on Art 50 TEU. Without this explicit
withdrawal clause included in the EU treaties, it would not have been possible for a European
Member to leave the Union. Do you agree or not with this statement? Please, explain your
choice.
1/2
● To answer this question it is important to distinguish between consensual and unilateral
withdrawal…
● In general, consensual withdrawal (agreement of all EU MSs) would have always been
possible (even without art 50 TEU) based on art 54 VCLT.
, ● So, the Union and the leaving MS could have reached an agreement to allow a MS to
leave even without an explicit withdrawal clause in the Treaty.
● About unilateral withdrawal, the issue is debated…
● Some scholars consider that states (are sovereign) and therefore have always the
prerogative to (unilaterally) withdraw from any international organization.
● But, in contrast, some other scholars argue that there is not a right to unilateral
withdrawal from IOs which purport to be established in perpetuity or whose
characteristics presuppose that permanent membership is necessary (see pa 851) …
Think about peace agreements…
2/2
● Based on the last position … I would (partially) agree with the statement proposed:
● In my view, on the basis of international law, a MS would not have been allowed to
unilaterally withdraw from the Union without art 50 TEU.
● That is because art 56 VCLT generally establishes that a treaty that does not include a
denunciation or withdrawal clause does not allow for withdrawal. Unless one of the 2
exceptions provided in art 56 VCLT would apply.
● The first exception is about consensual agreement (so again MSs should have reached
an agreement with the leaving MS).
● The second exception allows unilateral withdrawal from Treaties from which a right to
withdrawal can be indirectly assumed based on the nature of the Treaty and from the
intention of the parties. But this last exception is not applicable to the EU treaties since
them have been established to create an even closer Union (so presuppose permanent
membership) and have an unlimited duration (with States having agreed to a permanent
limitation of their sovereignty with the view of establishing a new and autonomous legal
order. This special nature of the EU has been acknowledged by the CJEU, for instance
in Van Gend en Loos, ss p 853.)
Withdrawal from the EU - Art 50
Can a MS Yes, since the lisbon treaty all ● Art 50 TEU “Any Member State
withdraw from MS can choose to withdraw from may decide to withdraw from the
the EU? the EU Union …”
Pre- Lisbon: ● There was not an explicit right to
withdraw in the EU Treaties
● Do MS have a right to withdraw
from the EU?
● The EU is an IO → rules of
International Public Law apply
