The Nature of the European Union
The European Union is by its nature an international organisation, created through agreements between States. However, its structure, functions, and powers differ in several important respects from the traditional international organisation. Hence the Union should rightly be considered as an international construction of its own kind (sui generis).
An international organisation is normally viewed as a forum for cooperation between Member States in specific, predetermined areas. Member States generally do not intend to confer on international organisations the authority to make binding decisions, especially not against individual States’ express wishes. Respect for such organisations’ decisions depends largely on the Member States’ willingness. In short, States accede to international organisations in order to coordinate their policies in a particular field with the other Member States. The International Maritime Organization (IMO), the International Labour Organization (ILO), and the World Health Organization (WHO) are examples of traditional international organisations.
The EU differs from these organisations in that it has been entrusted by Member States to adopt legally binding acts. These acts in some cases bind in the same way as national laws. Although adopted by the EU, they are valid and enforceable in each Member State without having to be ratified.
Perhaps the most significant difference between the EU and a traditional international organisation is that the former has the possibility to sue a defaulting Member State before the Court of Justice of the European Union for failure to comply with EU law. The Court may also impose penalties for failure to comply with its decisions. (More on this in Chapter 5.) The fact that the formal initiative to issue binding legal decisions is taken by the EU itself and not by the Member States is a further expression of the considerable differences between the EU and the more traditional international organisations.
The Union in many ways resembles a State. Its main institutions (see next section) reflect the normal power structure within a State, and it can, as we have seen, adopt legislation and take decisions that are binding on Member States and in many cases directly applicable in their national legal systems. However, a fundamental difference between the Union and a State is that the Union lacks sovereignty, and its jurisdiction is limited to the areas where decision-making power has been transferred to it by the Member States. Thus the Union only has ‘conferred competencies’: Member States must have expressly given the Union the competence to take decisions in a given area. Such transfers of competence take place through provisions in the Treaties, mainly the TFEU. The Treaty provisions that indicate that the EU is entitled to take legally binding decisions within the framework of a certain policy—such as environmental protection or foreign commerce—are usually called legal bases. (More on this in Chapter 4.) Further, Union legislative acts are not, as in the case of a democratic State, adopted by parliamentary majority. Normally, the Council of Ministers, consisting of representatives of governments, plays a crucial role in decision-making, even if such decisions are usually made together with the directly elected European Parliament.