Posts Tagged European Union

Compétence sur la Compétence: A Comparison of the United States and the European Union, with Gloves

Flag of the European Union

There’s a recent internet “buzz” around the question of whether the European Union is or is not a State, following British MP Daniel Hannan’s post claiming that, with the UN recognizing the EU officially and the Lisbon treaty giving it the power to sign treaties, the European Union was now officially a State under international law.

I was doing my usual blog tour through RSS feeds and such, and came across this post on this question by Julian Ku at Opinio Juris. Reading the comments under them, one of them caught my attention. It was written by Tobias Thienel, who contributes at the Invisible College Blog. Tobias Thienel wrote, on the question of whether the EU was or not a State:

“for an entity to be a state, it must not only have powers comparable to a state (a ‘government’ in the words of the Montevideo Convention), but those powers must not be derived from anyone else. They also, therefore, must not be limited by someone else’s consent. That, in a nutshell, is what sovereignty means.

A state  naturally has full ‘compétence de la compétence’, in that it can take new powers at any time, of its own initiative.

The EU cannot. It remains bound by the principle of limited attribution, and derives all its powers from the Treaties, that is to say from the member states. It does not hold power in its own right, no matter how much power – or what powers, including the capacity to make treaties – it holds.”

I started writing a comment to discuss this point, and the comment ended up being over a 1000 words long. Feeling it would be too long for a comment, I decided to post it here instead. Hence the abrupt start:

I think Tobias Thienel’s point about the United States having as a State “la compétence de la compétence”, and not the European Union raises an interesting issue of comparison. I believe he is right in the end, but I’ve been toying with the idea of comparing the US’s constitutional structure and the EU’s institutions, and I’ve found some interesting parallels.

First of all, words of caution: comparison is not, of course, reason, and what I am about to write will probably make any comparative legal scholar scream, but I think it’s worth thinking about.

I left my legal lexicon at home, but if I remember correctly, “la compétence de la compétence” as far as State sovereignty is concerned is the capacity of a State to define the limits on its powers on its own, without exterior intervention. In that sense, bar a full-fledged revolution, “compétence de la compétence” is incarnated by the State’s constitution, and more precisely in the clauses concerning the possibility to amend it.

So the question is, how much difference is there in who holds the power to modify or amend the US Constitution and the EU treaties? In principle, Tobias Thienel’s claim that the US has kompetenz-kompetenz and not the EU is exact. But from a practical point of view, the difference is less than it seems. Read the rest of this entry »

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