THE LEGAL PERSONALITY OF THE EUROPEAN UNION -...

1. EUROPEAN INTEGRATION – AREALITY AFTER MAASTRICHT

Article 1 (3) of the Treaty on theEuropean Union (TEU) stipulates thatthe basis of the European Union (EU)is represented by the EuropeanCommunities. The beginning of theEuropean Communities is marked bythe formation of the European Coal andSteel Community (ECSC) on 23 July1952, initiated by the French foreign

minister Robert Schuman and hiscollaborator Jean Monet. This Treatyhad been signed on 18 April 1951 bysix European states. The next step isrepresented by the signing of theTreaty establishing the EuropeanEconomic Community (Treaty of Rome)and the Treaty establishing theEuropean Atomic Energy Community(Euratom Treaty) in Rome in 1957. TheMerger Treaty led to the creation of asingle Commission and Council for the

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1 Octavian Gabriel Pascu graduated the Faculty of Law at the Babes-Bolyai University in Cluj-Napocain 1999. He completed the LL.M programme at the Law School of the University of Augsburg in 2003.Since April 2004, he is a PhD candidate at the Law School of the University of Augsburg, researchingon European Merger Law.Caius Tudor Luminosu graduated the Faculty of Law at the West University in Timisoara in 2002. Hecompleted the LL.M programme at the Law School of the University of Augsburg in 2003. He worksas a research assistant for the Chair of International Public Law and European Law at the Law Schoolof the University of Augsburg where he also earns his PhD.

THE LEGAL PERSONALITY OF THE EUROPEAN UNION -BETWEEN THE MAASTRICHT TREATY AND THE DRAFTTREATY ESTABLISHING A CONSTITUTION FOR EUROPE –REALITY AND PERSPECTIVES -

OCTAVIAN GABRIEL PASCU1

CAIUS TUDOR LUMINOSU

Abstract. The scope of the present article is to present an overview of the prevailingand accepted opinion on the legal personality of the European Union. The starting pointof the presentation is the analysis of the structural differences between the EU and theEuropean Communities. Then followed by the institutional delimitation and thedifferentiation of these bodies within the European Construct with regard to actualEuropean Law. After a brief presentation of the legal nature of the EU and its lack oflegal personality and legal capacity, a scrutiny of the international law requirements tointernational law subjectivity of the EU is performed with the same result, but this timeon international law level, denying the state character of the Union. This also representsthe prevailing opinion in German literature, denying the existence of a legal personalityof the EU on a public and international law level with respect to the actual European law.Further, we undertake an analysis on the international law effects of the lacking legalcapacity of the Union. This is followed by a short exposition of the effects on Europeaninstitutions of the awarding of legal personality to the EU. In the final part of the presentarticle the focus is on the new European Constitution, still to be adopted by the memberstates, which expressly provides the fact that the Union is granted the legal personalityand its implication on the present situation in the literature.

three Communities. The moment theseCommunities started to enlarge byaccepting new members signified theprocess of European integration proper:the adoption of a “financial constitution”of the European Economic Community(EEC) in 1969, the creation of theEuropean Monetary System in 1978and, last but not least, theinstitutionalisation of the summits ofheads of state and government ofMember States in 1974 marked by thecreation of the European Council(officially called the European Council ofHeads of State or Government).

The first step towards the EuropeanUnion is represented by the signing bythe members of the European Council ofthe Solemn Declaration on the EuropeanUnion (Stuttgart, 1983), stipulating theexamination and assessment of thepossibilities of a treaty for the setting upof the European Union. But before sucha structure could be created, the alreadyexisting European bodies had to bethoroughly reformed, and this was doneby the Single European Act (SEA) whichentered into force on 1 July 1987. TheAct paved the way for a deeper andmore regulated co-operation between thevarious community bodies, for theconsolidation of the internal market ofthe Communities, and to changes in thedecision-making process at communitylevel and of the legislative process.

Signing the Treaty on establishingthe European Union at the MaastrichtEuropean Council in 1991 representedthe decisive step in achieving a deeperco-operation at European level. Despitevarious divergent opinions between

signatories, the most notable beingGreat Britain’s refusal to accept theprovisions regarding the social union (asituation remedied only after internalpolitical changes in this country), acompromise was reached under themediation of the President of theEuropean Commission, Jacques Delors,at the Amsterdam European Council in1997. The European structure afterMaastricht has been marked byintergovernmental regulations, such asthe Common Foreign and SecurityPolicy (CFSP) and the co-operation inJustice and Home Affairs (JHA), as wellas by changes in the EC, Euratom andECSC Treaties. The EuropeanEconomic Community was turned intothe more comprehensive EuropeanCommunity (EC), and European Unioncitizenship was introduced, including theactive and passive right to vote on locallevel, the right to vote for the EuropeanParliament in the home country and theEuropean right to file petitions (articles17–22 EC Treaty).

As a consequence of the difficultiesarising from the necessity – ofconstitutional law – of organising areferendum for the ratification of theTEU, signed in Maastricht on 7February 1992, the Treaty entered intoforce only on 1 November 19932.

Article N3 (2) of the MaastrichtTreaty stipulates that an inter-governmental conference should beheld in order to revise this document.This conference took place inAmsterdam, in June 1997, and the newTEU entered into force on 1 May 1999,

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2 Observe the negative result of the referendum in Denmark and the contesting of the constitutionalityof the ratification law of the TEU in Germany.3 Currently Art. 48 TEU.

once the ratification procedures wereconcluded in all Member States4.

After having entered into force on 1February 2003, the Treaty of Nicestipulates the abrogation of the Protocolof the Amsterdam Treaty regardingCommunity bodies with a view to theextension of the EU, and brings somealterations to the constitutive treaties,alterations made necessary by theprospective enlargement of thesestructures.

The European Council of Laeken ofDecember 2001 created the EuropeanConvention on the Future of Europe,under the leadership of the formerFrench president Valerie Giscardd’Estaing who, according to the LaekenDeclaration on the Future of the EU,was charged with preparing the DraftTreaty establishing a Constitution forEurope. This new document was meantto mark the development of theEuropean Union and, at the same time,a reformatory act of the Europeanstructures aimed at simplifying thealready existing constitutive treaties. Itwas also meant to facilitate a clear andtransparent distribution of thecompetences of the European Unionand the Member States and, last butnot least to consolidate democraticvalues and transparency in Europe. TheEuropean Convention concluded itsworks once this project was drawn up.On 29 October 2004, the Heads ofState or Government of the 25 MemberStates and the three candidatecountries (at that time Bulgaria,Romania and Turkey) signed the Treaty

establishing a Constitution for Europewhich was unanimously adopted on 18June of the same year. The Treaty canonly enter into force when it has beenratified by each Member State inaccordance with its own constitutionalprocedure. The French and Netherlandsrejected the Constitution by referendumon 29 May and 1 June 2005. Underthese circumstances a period ofreflection is currently under way in allcountries. However the process ofratification by the Member States hastherefore not been abandoned.

On 23 July 2002, according to theprovisions of article 97, the ECSCTreaty expired. A protocol annexed tothe Treaty of Nice, regarding thefinancial consequences of the expirationof the ECSC Treaty, stipulates that theentire patrimony and all the obligationsentailed by this treaty are transferred tothe European Community. According tothe protocol, the net value of thispatrimony is destined for research inthe field of the industrial use of coaland steel and, to this end, a ResearchFund for Coal and Steel is to be setup. As the entire patrimony of theECSC has been returned to theMember States once this communityhas ceased to exist, the decision hasbeen made that the patrimony shouldbe administered by the EuropeanCommission until the Treaty of Niceenters into force. As far as the non-patrimonial juridical effects areconcerned, in all the agreementsconcluded by the ECSC, the ECSC hasbeen replaced5 by the EC starting with

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4 A referendum was necessary in Ireland and Denmark, while in France the ratification required analteration of the Constitution.5 See Decision of the Representatives of the Governments of the Member States 2002/596/EC, OJ2002 L 194/35.

24 July 2002, the EC bearing all therights and obligations of the dissolvedorganisation.

2. THEORETICAL PREMISES: THERELATION BETWEEN THE EUROPEANUNION AND THE EUROPEANCOMMUNITY

The Maastricht Treaty on thecreation of the European Union6structurally alters the construction of theCommunity by intensifying the processof integration and by setting up the“three-pillar” structure based on theEuropean Communities and theintergovernmental co-operation policies,the Common Foreign and SecurityPolicy and the Justice and HomeA f f a i r s7. The ratification of theMaastricht Treaty triggered ampledebates in German literature, bothregarding the legal nature of the EUand the existence of a legal personalityof the Union. The German FederalConstitutional Court qualified the Unionas “a confederation of states”8, a notionthat was widely accepted and whichreflects the co-existence of theCommunities and of intergovernmentalpolicies within the Union. TheCommunities maintain their ownindividual status, having legalpersonality9 and forming the Communitypillar of the Union. Institutionally, theUnion is closer to the other two pillars,the CFSP and the JHA, whose

existence and functioning entailprinciples and procedures different fromthose of the Communities. Thus, theprinciples of the direct applicability andof the supremacy of Community lawrepresent procedures specific to theCommunity pillar, while the second andthird pillar presuppose a jointintergovernmental co-operation betweenMember States based on the principlesof international public law. Thisdistinction, which is dogmaticallyessential, between the EuropeanCommunities and the European Unionrepresent the most important premisesfor defining the legal status of theUnion.

a) Defining European Union law andCommunity law

Primary Community legislation ismade up by the constitutive treaties ofthe European Communities, with all theprotocols, annexes and theirsubsequent completions and alterations.A new category of primary legislationwas created by adopting the SingleEuropean Act in 1987. This legislationaltered the constitutive Treaties of theEC and, as a precursor10 to theMaastricht Treaty, the SEA envisionedan organism of intergovernmentaldecision aiming at European co-operation in foreign policy andestablished outside the already existingEC Treaties (article 30 SEA).


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6 OJ 1992 C 191/1.7 The Amsterdam Treaty altered the structure of the JHA pillar, by transferring the policies on the freemovement of persons, covering visas, asylum, immigration and judicial co-operation in civil matters intothe body of the EC Treaty, the first pillar (articles 61-69), the remaining subjects in the TEU beingcurrently called “Police and Judicial Co-operation in Criminal Matters”; this alteration will be furtherconsidered when talking about the JHA pillar.8 BverfGE 89, p. 155.9 Art. 281 EC Treaty.10 Pechstein/Koenig, Die Europäische Union, p. 5.

As far as the effectiveness ofCommunity law is concerned, this is alegal source that takes precedence overnational law, its regulations havingpriority by virtue of the supra-nationalcharacter of Community law order. Onthe other hand, the effects ofintergovernmental law, represented bythe norms of the CFSP and of the JHA,are the same with those of regularinternational public law treaties1 1.Community legal norms take directeffect in or on Member States withoutrequiring national adoption. This directapplicability leads to the supra-nationalcharacter of Community law order.Intergovernmental regulations in CFSPand JHA require, however, an act ofnational law in order to becomeeffective in Member States, namely anact of transformation, adoption orcarrying into effect. This principle hasalso been formulated in the AmsterdamTreaty – article 23 (2) TEU – which,despite the introduction of the majorityprinciple in CFSP, in cases where“important reasons of internal policy”are invoked, stipulates the possibility ofapplying the unanimity rule. Thus,Member States mostly maintain theirsovereignty in these fields that are verysensitive for each of them.

As far as the term supra-nationalityis concerned, it should be noted that itis not used in a unitary way. Aninternational organisation wascharacterised as being supra-nationalfor the first time in the ECSC Treaty atthe Paris Conference in 1950, whenthis term was introduced in article 9 ofthe respective Treaty. In a wide sense,

this characterisation is used for anydecision of an international organisationor legislative body which immediatelycreates obligations for the MemberStates. In a narrow sense, the termapplies mainly to the decision-makingprocedures of the EC, in thosesituations when the Member States maycarry certain obligations even withouttheir own accord, as a consequence ofa majority decision12. Politically, theterm supra-nationality is used as asynonym for indicating a structuredintegration within a process13.

The Maastricht Treaty has, similarlyto the SEA, a heterogeneous structure:on the one hand Union primarylegislation is made up by regulationswhich alter the EC treaties (articles 8-10 TEU), and which have become partof Community primary legislation oncethe Maastricht Treaty entered into force.On the other hand, Union primarylegislation is based on theintergovernmental legal sources of theCFSP and JHA (articles 11-42 TEU).These two fields, so different in nature,are comprised in the commonregulations (articles 1-7) and the finaldispositions (articles 46-53) of the TEU.

As for the relationship betweenUnion primary legislation, as stipulatedby the CFSP and JHA provisions, andCommunity primary legislation,represented by the EC Treaties, thesetwo parts of the European primarylegislation are not totally independentfrom each other. The TEU aims atcreating a single institutional framework(article 3 (1) TEU) which would ensurethe coherence and continuity of the


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11 Ibidem.12 Schweitzer/Hummer, Europarecht, p. 275.13 Oppermann, Europarecht, p. 275.

measures meant to achieve the goalsof the Union, at the same timemaintaining and developing the acquiscommunautaire. Despite this intention,stipulated in article 3 (1) TEU, one cannotice that unlike the Communities, inthe CFSP and JAH it is not the jointbodies that act as legal subjects, butthe very Member States.

Unlike the EC Treaties, the TEUdoes not hold provisions referring to thecapacity, in the fields of CFSP andJAH, of creating secondary legislationwith direct applicability in the MemberStates based on a competenceconferred by primary legislation. Inother words, neither the TEU, norsecondary legislation acts passed on itsbasis, such as council decisions onjoint actions (article 14 (1) TEU), havedirect applicability for the citizens of theUnion. Neither the CFSP, nor the JHAcontain norms of Union legislationwhich take precedence over nationallaw. We are only dealing with treatiesof international public law which committheir signatories to a tighterintergovernmental co-operation.However, in contrast with the factsmentioned above, the draft EUConstitution stipulates in its very firstarticle the consecration of the Union’ssupra-national character, thus changingthe current situation and placing theUnion’s structure on a positionequivalent to that of the EC at present.

b) The relation between the law ofthe European Union and Communitylaw

On the one hand, the AmsterdamTreaty brought about major changes inthe European structure, while on the

other hand, article 47 of the sametreaty stipulates that the treatiesunderlying the formation of theEuropean Communities are not affectedby changes other than those stipulatedby titles II-IV TEU and by the finaldispositions of the articles 46-53 TEU.As for these changes, they may be saidto represent only dispositions meant tocomplete Community law in certainfields, without bringing about majorchanges.

Starting from the premise that EUlaw is a separate entity from EC law,it should be pointed out that betweenthese two entities there are certainpoints of contact and, implicitly, thepossibility of conflicts between theirlegal norms14. At the same time, thereis the problem of the relation betweenthese two systems which, according toarticle 3 (1) TEU, form together a singleinstitutional framework. The hypothesisof the “three-pillar” structure of theUnion with a “roof” supported by threepillars – EC, CFSP and JHA – givesthe impression of a relation of supra-ordination of Union law versusCommunity law. Still, the TEU is anordinary treaty of international publiclaw, which entails obligations only forthe signatory states, not for the EC.Even a simple participation, as part ofthe TEU, would not lead to asubordination of Community law in thesystem of Union law, but would onlylead to assuming certain obligations aseffect of an international treaty.Potential collision problems betweennorms should be solved according toarticle 300 (5) and (6) EC Treaty,corroborated with article 48 TEU, byaltering Community law. By integrating


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14 Pechstein/Koenig, Die Europäische Union, p. 68.

Union law into the EC, this would takeprecedence over secondary Communitylaw norms15. However, until the draftEU Constitution has been drawn up,the possibility of integrating these twolegal entities and, implicitly, the twostructures, has not yet been consideredby their initiators.

c) ConclusionsWhen characterising the relationship

between the Union and theCommunities, namely the roof characterof the former and the pillar character ofthe EC, in the “three-pillar” structure, itshould be mentioned that therelationship itself has no specialdogmatic importance. The reason forthis is that neither the obligation ofobserving the principle of coherence(article 3 (1) TEU), nor other possibleobligations resulting from provisions ofthe TEU, respectively from actions ofUnion bodies, require dogmaticsanctioning in order to be substantiated.Assuming these obligations of the ECcan be explained by the modifyinginstruments of the EC Treaty. Only theeffect of carrying out these obligations,namely including the Communities invaster integrative structures, as well asobserving the principle of coherence byassuming the obligation of mutualalignment of Community policies withthe CFSP and the JHA, can berepresented for exclusively illustrativepurposes for the Union as being acomprehensive structure as comparedto the EC. All the above indicates that

one can not talk about a unioncharacter of the EC in the presentEuropean structure.

3. THE LEGAL NATURE OF THEEUROPEAN UNION

The character of subject of publicinternational law has to be denied if thethree conditions of the so-called theoryof the three elements have not beenmet. These refer to the threecomponents which have to be presentobligatorily for a structure to be definedas a state and, consequently to havelegal personality. The first element isrepresented by the people of that state,characterised by the fact that they liveon the territory of the respective stateon a regular basis and can be definedby the formal bond represented bycitizenship16. In the case of theEuropean Union the requirement ofcitizenship is missing, despite theintroduction of the “citizenship of theEuropean Union” by the MaastrichtTreaty. This union citizenship is verydifferent from the citizenship of a stateas far as its rights and obligations areconcerned17.

The second element is representedby the territory of the state, insidewhose borders a state exerts itssovereignty. This element is absentfrom the European Union, referring onlyto the territory of the EU MemberStates in which the TEU takes effect.This fact results from the character ofinternational public law of the TEU.Article 229 EC Treaty only refers to the


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15 ECJ, Case 181/73, Haegemann/Belgia, [1974], pp. 449, 460; on the matter of precedence, the Courtclassified the international treaties, in which the EC are part, as being situated between primary andsecondary Community legislation.16 Bothe/Hailbronner/Klein/Kunnig/Schröder/Graf Vitzhum, Völkerrecht, p. 205; Koenig/Haratsch,Europarecht, p. 29.17 Koenig/Haratsch, Europarecht, 2003, p. 29.

scope of the EC and not to a territoryof the Union, respectively of the EC.

The last element, according to theabove mentioned theory, is the actualexercising of sovereignty on thatterritory. Neither the TEU nor any otheracts grant the Union the possibility ofgranting itself its own competencesnecessary for its functioning, in otherwords it can not self-mandate itself inthis sense. This possibility is commonto all states and is essential forexercising their sovereignty on theirown territory. Article 6 (4) TEUstipulates that the Union has thenecessary means to achieve its goalsand implement its policies. As this normcould have been interpreted as amandate for the Union to grant its ownnecessary competences, the so-called“Maastricht Decision”18 of the GermanFederal Constitutional Court, whichrefers to the constitutionality of the lawof approving the Maastricht Treaty,states the contrary. In supporting thispoint of view, the German Court refersto the principle of conferral, stipulatedby article 5 TEU and article 5 (1) ECTreaty. According to this principle, theUnion may become active only if it hasbeen specifically mandated in therespective treaties, which contradictsthe possibility of self-mandating. In thesame context, the German Court, whichstates that the EU lacks the quality ofsubject of international public law,maintains that the norm stipulated inarticle 6 (4) TEU does not contain theprocedural disposition necessary for itsapplicability. One should also exclude

any reference to articles 202 and 205EC Treaty, involving the possibility ofaction through the European Council,because the applicability of thesearticles in the CFSP and JHA pillars ofthe Union has not been specificallystipulated in article 28 (1), respectivelyarticle 41 TEU. In conclusion, theGerman Federal Constitutional Courtinterprets article 6 (4) TEU only as astatement of the political-programmaticintent of the EU Member States toprovide the Union with the necessarymeans to achieve its goals. The Courtalso maintains that anotherinterpretation of the text of article 6 (4)TEU, such as one provided byEuropean bodies, would lack theobligatory character as far as theGerman state is concerned19.

Influenced by this decision, themajority opinion in the German doctrinemaintains that the EU is neither asubject of international public law noran international organisation20. Theconcept of a structured internationalorganisation, consisting of severalorganisations with legal personality – inthis case the EU and the EC –independent from the relations ofsubordination or co-ordination existingbetween these entities, is not tenable.In this context, the Union ischaracterised as “an internationalassociation without legal personality”21,the Member States, as they are calledin article 4 (2) or in article 11 (2) TEU,being, in fact, signatories of a treatyand not members in the sense given bythe EC.


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18 See footnote 7.19 Ibidem, p. 195.20 Koenig/Haratsch, Europarecht, p. 45; Schweitzer/Hummer, Europarecht, p. 23; for a generalpresentation of the opinions of the German doctrine see Koenig/Haratsch, Europarecht, p. 45.20 Koenig/Haratsch, Europarecht, p. 45.21 Koenig/Haratsch, Europarecht, p. 45.

4. THE LEGAL PERSONALITY OFTHE EUROPEAN UNION: ANALYSISAND CONTROVERSIES

From the very beginning it should bemade clear that the TEU does notspecifically stipulate the legalpersonality of the Union, as it exists inthe EC Treaty with reference to theCommunity. In this sense, legalreference materials contain a number ofconcepts and controversies regardingthe legal personality of the Union and,implicitly, the capacity of constituting asubject of international public law.According to the overwhelming majorityof the formulated opinions, the Uniondoes not have legal personality22. Thisspecification is necessary following theanalysis of the fundamental institutionsand principles stated both in Communitylaw and in the practice of internationalorganisations. The controversies foundin literature refer to the qualification ofthe legal status of the Union in thepractice of international public lawstarting from the quality of internationalorganisation to the existence orinexistence of legal personality.International organisations can besubjects of international public law ifthey have the capacity of holding rightsand obligations in their relations ofinternational public law. This capacitywas granted by the Member Statesthrough a specific provision in thefounding act, which, as we havealready noted above, does not apply tothe EU.

a) Legal personality by “implied-power”

The practice of international publiclaw, however, has other means ofacquiring legal personality byinternational organisations. One suchmeans refers to acquiring legalpersonality by the so-called “implied-power” effect. According to this theory,the existence of legal personality doesnot require any specific provision in thefounding act, but only presupposesdispositions from which, by applying theinterpretation principle of “implied-power”, results that the Member Stateshad the intention to attribute legalpersonality to the respectiveinternational organisation23. Thus, aninternational organisation has to havethe rights and obligations entailed bycarrying out its tasks. This is the wayin which the International Court ofJustice (ICJ), in the “Bernadotte”Report24, established that the legalpersonality of the UN (United Nations)implicitly arises from the extremelycomprehensive tasks and objectivesstipulated in the UN Charter (e.g., theprovisions about the necessity ofconcluding treaties of internationalpublic law). We will further analysewhether, based on the application ofthe “implied-power” principle in the TEUprovisions susceptible of conferring thecapacity of international public lawsubject, one can deduce the legalpersonality of the EU.

According to article 49 TEU, anyEuropean state can apply for accession


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22 Pechstein/Koenig, Die Europäische Union, pp. 28; the same opionion is shared by Schweitzer/Hummer,Europarecht, p. 23; Oppermann, Europarecht, p. 55; Herdegen, Europarecht, pp. 78.23 Pechstein/Koenig, Die Europäische Union, p. 40.24 ICJ Reports 1949 – Reparations for Injuries – p. 174.

to the EU. The applicant statesbecome, after carrying out theaccession procedures, members of theEU, without requiring a separateaccession to the EC as the latterrepresents one of the fundaments ofthe Union, namely the Communitypillar25. Paragraph 2 of article 49stipulates that accession takes place bysigning an accession treaty between theapplicant state and the Member Statesof the Union (just as in the case of theaccession of Austria, Finland andSweden26). Thus, accession treaties areconcluded with the Member States ofthe EU and not with the Union itself,which points to the fact that we aredealing with the second pillar of theEU, namely the CFSP, wherecompetences belong to the MemberStates and not to the Union. Ifaccession treaties were concluded withthe Union itself, the logical conclusionwould be that the EU does have legalpersonality27. This conclusion is alsosupported by the idea according towhich the foreign representation of theUnion is a matter of intergovernmentalco-operation in which the state holdingthe presidency of the council can notconclude international public law treatiesin the name of the other MemberStates. Pechstein/Koenig consider thatboth paragraph 1 of article 19 TEU andthe intergovernmental character of theCFSP convey a partial foreignrepresentation of the Member States onthe state holding the presidency of thecouncil. This partial representation is

limited to expressing points of viewcommon to the States of the Union,and it does not include concludingagreements that could generate legaleffects, such as concluding internationaltreaties. Consequently, theintergovernmental character underlinesthe inexistence of the Union’s legalpersonality.

b) The status of Community bodiesTightly connected to the problem of

the Union’s legal personality is thequalification of the EU bodies: does theUnion have its own bodies or does itresort to the bodies of the Communitiesin order to carry out its activities?Article 5 TEU enumerates, on the onehand, five fundamental bodies of theUnion (the Parliament, the Commission,the Council, the Court of Justice andthe Court of Auditors), but it makesexplicit reference to Community treaties.On the other hand, article 4 TEUassigns the co-ordinating political role tothe European Council, which is formedof the heads of state or government,but also of the President of theC o m m i s s i o n2 8. The systematicinterpretation of these two provisionsreveals that the intention of theEuropean lawmaker was to create abody proper to the EU that shouldcomplete the single institutionalframework postulated in article 3 TEU.This form of the Council,institutionalised by the MaastrichtTreaty, has been present in Communitypractice since 1975 in the form of the


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25 Streinz, Europarecht, p. 54.26 For example: OJ 1994 C 241/9.27 Pechstein/Koenig, Die Europäische Union. p. 42.28 The European Council is not identical with the European Communities Council stipulated in Art. 121EC Treaty.

biannual summits of the heads of stateor government together with thePresident of the Commission, and itpoints out its political-diplomaticcharacter. The European CommunityCouncil is responsible for the legaltransposition of the political decisionsmade by the European Council2 9. Thus,the European Council is the only bodyproper of the Union. This is the onlyway to account for the relatively reducedrole played by the other bodies –P arliament, Commission, Court ofJustice and Court of Auditors – withinthe Union. If the Union had had its ownexecutive bodies, it could have hadlegal personality3 0, considering that theexistence of its own bodies is essentialfor the qualification of the legal status ofan international organisation. The Union,therefore, carries out its tasks by meansof the specific bodies of the EC, whichpoints to the lack of legal personality.

At this point we should make someconsiderations as to the language usedby the mass media and in certainpolitical circles. As we have mentionedbefore, Community law presupposes thedistinction between the EC, characterisedby supra-nationality, and the EU, as afield of co-operation between MemberStates at intergovernmental level. Thisdistinction should also be considered asfar as the use of legal terminology in

Community law is concerned. It goeswithout saying that the terms used by themedia have the role of simplifying legalCommunity jargon which greatly reflectsthe level of difficulty of Communitys t r u c t u r e3 1. It is also true that legalanalysis requires the correct use of theterms and notions of Community law.The lack of legal personality and ofproper bodies reveals in this sense theterminological distinctions existing in thelegal community order. Thus, when wespeak about the Council, we keep inmind the difference between theEuropean Council, as a body of theentire Union, and the EuropeanCommunity Council, as a body specificfor the Community pillar of the Union. Asfor the term “EU Council”3 2 used by theCouncil in certain documents, Dörr pointsout, with good reason, that it contravenesto the provisions existing in the institutivetreaties, where the name “EuropeanCommunities Council” was established.This provision, already stipulated in theMerger Treaty in 19653 3, in articles 1and 9, has not been abrogated by article50 (1) TEU, but remained as an integr a n tpart of primary Community legislation3 4. Atthe same time, the Commission, as aspecific body of the EC, bears the nameof European Commission or EuropeanCommunity Commission3 5, and not the


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29 Oppermann, Europarecht, p. 96; on the other hand, Koenig/Haratsch, p. 352, consider that as theactivity of the European Council does not result in the Union acquiring legal capacity, the Council doesnot meet the necessary requirements to be qualified as a body specific for the Union, only having therole of intergovernmental conference at the level of international public law.30 Wichard, in: Callies/Ruffert, Art. 5 TEU, p. 51.31 Dörr, NJW 1995, p. 3163.32 For example: The Council Decision 95/358/EG, Euratom, OJ 1995 L 205/38.33 The Merger Treaty entered into force on 01.07.1967.34 Dorr, NJW 1995, p. 3164.35 The Resolution of the Commission of 17.11.1993, not published in the OJ.

EU Commission, as it is currently used bythe media. The Court of Justice of theEuropean Communities, as a Communityjuridical body, also comprises, starting with1989, a Court of First Instance. TheEuropean Parliament does not poseproblems in this sense, considering itsconsultative role.

The terminology used in the TEUoften refers to the Union as an entity(article 6 (3), according to which theUnion respects the national identity ofthe Member States or their fundamentalrights in paragraph 2 of the samearticle). This is however a purelydeclarative statement as it does notinfer the existence of the Union’s legalpersonality.

Last but not least, the foreign policyof the Union is not the foreign policy ofa proper subject of international publiclaw, as it might result from article1 8 (1) TEU, which confers thePresident of the Council the function ofrepresentation in the CFSP. This is onlya partial representation on behalf of thestate holding the Presidency of theCouncil for the other Member States36.

c) Legal personality acquired bysubsequent practice according toarticle 31 (3) (b) of the ViennaConvention on the Law of Treaties

Public international law practiceknows another way of acquiring legalpersonality by an internationalorganisation that is by subsequentpractice. This is a method which is

recognised by and stipulated in theVienna Convention on the Law ofTreaties in article 31 (3) (b). This wayof acquiring legal personality could bededuced from the activities of the Unionin the field of international public law,mainly from its concluding internationalagreements. The following treatiesmight fall into this category: TheEuropean Union Treaty with Bosnia-Herzegovina and Croatia concerning theadministration of Mostar37. A possiblediscrepancy with the lack of the Union’slegal personality, thus its incapacity ofconcluding international treaties in itsown name (and implicitly in the nameof the Member States), can be seenfrom the provision stipulating that therespective treaty is signed by thePresident of the Council in the name ofthe Union Member States, within theUnion38. However, the former foreignminister of Germany, Klaus Kinkel,makes a rightful observation referring tothis situation, namely, that from legalpoint of view, in the case of the abovementioned treaty it is not the Union thatacts, but the Member States and theCommunity39. The signing of the PeaceTreaty for Bosnia-Herzegovina on 14December 1995 by the Presidency ofthe Council on behalf of the EU fallsinto this category too. This is again acertification of the Union’s participationin this treaty in its quality of specialnegotiator40 and not a signing of thetreaty in the name of the Union. At thesame time, the treaties signed by theUnion with Yugoslavia41, respectively


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36 Koenig/Haratsch, Europarecht, p. 352.37 Bull. EU 7/8 – 1994, p. 74 and Bull. EU 6 – 1994, p. 98.38 Schröder, in: Europäisches Verfassungsrecht, p. 391.39 Kinkel, in Schlußveranstaltung des 61. Deutschen Juristentags am 20.09.1996: Außenpolitik derEuropäische Union – Rechtliche Möglichkeiten und politische Chancen, 1996, p. Q 14.40 “European Union special negotiator”, Dörr, EuR, 1995, p. 343.41 Council Decision 2001/352/CFSP, OJ 2001 L 125/1.

with M a c e d o n i a4 2, concerning the settingup of a surveillance commission onbehalf of the EU, treaties which explicitlystipulate the quality of participant of theUnion43, reinforce this conclusion.Recognising the right of the Union toparticipate in the relations of internationalpublic law by concluding internationalagreements in the form of association,may represent an argument for acquiringpartial legal personality for the Union byvirtue of article 31 (3) (b) of the ViennaConvention on the Law of Treaties4 4. Thisargument could be effectively invoked ifthe Member States hadn’t explicitlyopposed it by rejecting the proposals ofI r e l a n d4 5 and the Netherlands4 6 to grantthe Union constitutive legal personalityduring the negotiations that led to theconclusion of the Amsterdam Treaty.Being a fundamental provision ofCommunity structure based on primaryCommunity legislation, granting legalpersonality should have been the objectof the procedure of altering theconstitutive treaties, according to article48 TEU4 7. Paragraph 3 of the samearticle stipulates that in such a casedecisions are adopted according to therule of unanimity which, obviously, didn’thappen in the present situation.

d) The absorption of theCommunities in the Union

In German literature, v. Bogdandy/Nettesheim`s48 melting theory, which

starts from the idea of the unity ofCommunity legal order, kicked off anample debate. According to the opinionof the two authors, the Union is aunitary structure which also comprisesthe Communities and which adequatelyreveals the gradual intensifying of theEuropean integration process. Thefundamental legal ground of the meltingconcept is article 3 (1) TEU, whichstipulates the single institutionalframework of the EU. Thus, from thepoint of view of its organisation, of thelegal consequences and of the legalsystem, the Union would represent aunity, which is the constitutive basis ofthe Community legal nucleus49. Startingwith the Maastricht Treaty, Communitydevelopment enters a new phase,allowing the authors to state that theUnion represents a new structure whichreplaces the old one. In other words,the Union absorbs the Communities,whose substitute it becomesautomatically, a statement that alsoresults from the terminology used indrawing up Community legislation. Fromthis point of view, the authors maintainthat the terms “Community” and“Community law” would be obsolete andtheir use would not correspond to thepresent image of the Europeanstructure, more and more often referredto with the terms “Union” and “Unionlaw”50. The conclusion reached by v.


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42 Council Decision 2001/682/CFSP, OJ 2001 L 241/1.43 Schröder, in: Europäisches Verfassungsresrecht, p. 391.44 Dörr, EuR 1995, p. 343 defines this quality as legal personality “in statu nascendi”.45 CONF 2500/96, 05.12.1996, p. 91.46 CONF 2500/96, ADD. 1/20.3.1997, p. 47.47 Pechstein/Koenig, Die Europäische Union, p. 38.48 V. Bogdandy/Nettesheim, NJW 1995, p. 2324; by the same authors, EuR 1996, p. 3.49 V. Bogdandy/Nettesheim, NJW 1995, p. 2327.50 V. Bogdandy/Nettesheim, NJW 1995, p. 2327; in this sense, as the authors explain, the Regulationsissued by the EU Council are called Regulation (EC) only insofar they refer to Community legislationand not to Union legislation.

Bogdandy/Nettesheim is that, from thisperspective, the Union, as unitaryorganisation, meets all the objectiveconditions necessary to have legalpersonality, and it remains that thisdogmatic concept be accepted in thepractice of international public law51.

Considering the recent developmentsand legislative projects at the level ofCommunity legal order5 2, the meltingtheory proposed by v.Bogdandy/Nettesheim has a visionaryand innovative character. It represents away of simplifying the complicatedCommunity legal structures throughproposals that are more accessible tothe citizens. The melting concepthowever represents rather a social-political aspiration than a legal reality5 3.From a normative point of view, theauthors ignore the fact that the singleinstitutional framework stipulated inarticle 3 (1) TEU only conveys a partialunity of the Community bodies, whichdoes not directly lead to the immediatemelting of the structures they represent.Politically, the proposals referring to theabsorption of the Communities into theUnion and to a possible granting of legalpersonality to the latter were explicitlyrejected by the Member States.

Although there have been otheropinions presented in the literature,insisting on a structural melting of theCommunities within the Union54, as wellas on granting legal personality throughthe Amsterdam Treaty55 the majority of

the authors stick to the thesis that theUnion does not have legal personality,at least not until the EuropeanConstitution enters into force.

e) The European Union – a subjectof private law?

Another aspect connected to theEU’s legal personality is the questionwhether the EU can be a subject ofprivate law. This capacity offers thepossibility of engaging relationships atthe level of private law and ofconcluding legal documents, mainly legalcontracts in the Member States. Unlikethe EC Treaty (article 282) and theEuratom Treaty (article 185), the TEUdoes not contain explicit provisions inthis field. Although for being a subject ofprivate law, this is not necessary, aproblem arises where we deal with aninternational organization which does nothold the capacity of a subject of publiclaw. According to the majority opinion inthe theory of international public law, thecapacity of private law of an internationalorganisation does not result from itscapacity of international public law.Assigning the status of private lawsubject to an international organisationfalls under the regulations of nationallegal norms, so that there is nomandatory determining connectionbetween the two5 6.

The absence of the EU’s private lawcapacity, such as it is the case of theGerman legal system57, has no majorlegal consequences. As for the


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51 V. Bogdandy/Nettesheim, NJW 1995, p. 2328.52 We refer to Art. 6 of the Draft Treaty establishing a Constitution for Europe.53 Certainly, if we ignore the draft EU Constitution.54 Trüe, Verleihung, von Rechtspersönlichkeit an die Europäische Union und Verschmelzung zu einereinzigen Organisation – deklaratorisch oder konstitutiv?, Europa – Institut der Universität desSaarlandes, Nr. 37, 1997.55 Wichard, in: Callies/Ruffert, Art. 5 TEU, p. 51.56 Koenig/Harratsch, Europarecht, p. 52.57 In German international private law, the recognition of the private law capacity of a foreign legalpersonality depends on the latter’s statute in the country where it is based.

necessity of such a capacity forcarrying out its activity, it should bementioned that as far as the Union isconcerned its headquarters are notlocated in any specific country, theprivate law capacity being irrelevant inthis case. The other issue raised refersto the necessity of private law legalpersonality in the case of legalprotection for the citizens of the Union.The Union is not mandated to issueacts whose recipients are the citizensof the Member States58, so that theexistence of a private law capacity inthis situation is again not necessary.

5. THE LEGAL PERSONALITY OFTHE EUROPEAN UNION WITHIN THETREATY ESTABLISHING ACONSTITUTION FOR EUROPE

The Treaty for the future EuropeanConstitution explicitly stipulates in articleI-7 the legal personality of the Union.This provision together with article IV-438 lays down that the Unionestablished by the Constitutional Treatyis the legal successor to the EuropeanCommunity. According to the FinalReport of Working Group III of theEuropean Convention, which during itsworks discussed the problem of theUnion’s legal personality, the presentCommunity structure is liable to createconfusion as far as the legal capacityof European institutions is concerned.Based on this consideration, the

Working Group recommends theintroduction in the Treaty of theConstitution of an explicit provision thatshould regulate the granting of legalpersonality to the Union59. We shallfurther analyse the dogmaticimplications of this provision and itsconsequences on the relations ofinternational public law of the EU.

a) The explicit recognition of theUnion’s legal personality: implicationson the “acquis communautaire”

Based on the mandate entrusted bythe Presidium of the Convention,Working Group III analysed, in itsdebates, the effects of the explicitgranting of legal personality to theUnion, as well as the consequencesborn by the melting of the Union’s legalpersonality with that of the legalpersonality of the Communities wouldhave on the Community legal order60.Considering the disappearance of thepresent form of Community Treatiesand the drawing up of a singleconstitutional document that replacesthem, we think that it is not that mucha melting, as it is formulated in theReport61, but an absorption of theCommunities into the Union62, ideawhich is also reflected in the takingover of the Community legal institutionsin the new legal structure, under thename of Constitution63. Thus, we can


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58 BverfGE 89, pp. 155, 175; The German Federal Constitutional Court, in its decision in the Maastrichtcase, retained that the TEU does not contain provisions which should represent a mandate for anyactions of any nature on the possessors of basic rights, namely on the citizens of the Member States.This decision is based on the fact that there is no legal protection of the citizens’ individual rightsagainst acts of Union law neither in the field of JHA nor in that of CFSP either by the ECJ or bythe Court of First Instance (Art. 46 TEU).59 The Final Report of Working Group III of the European Convention on the legal personality of theEU – CONV 305/02 – can be found on the Internet on the Convention’s website www.european-convention.eu.int (on 02.10.2002).60 See the text of the Final Report, pt. 1, p. 1.61 See pt. 3 of the Final Report, p. 2.62 See also pt. 2. d) of the article – the v. Bogdandy/Nettesheim theory.63 See Art. I-1 of the Constitutional Treaty: “…this Constitution establishes the European Union…”.

see that the Community pillar of thepresent European architecture passeson materially its institutions andorganising principles (including its legalpersonality) to the future EuropeanConstitution. At the same time, the term“Union” reflects to a much greaterextent the intensification of the processof integration and the joint Europeanvalues that lie at the basis of drawingup a Constitution for Europe.

Following the explicit granting of alegal personality to the Union by articleI-7 of the EU Constitution, the“Community acquis” undergoesessential alterations as far as its legalstructure is concerned. The model ofthe “three-pillar” structure, establishedby the Maastricht Treaty disappears,the institutions comprised by thesepillars being integrated into a unitarystructure, under the form of aConstitution. At the same time, theconstitutive treaties cease to beeffective, but the institutions andorganising principles remain valid, thistime within a single text meant tosimplify the European legal structure.The members of the Working Group,together with the experts and legaladvisors heard during its works,reached the conclusion that a potentialmerger of the treaties would be thelogical consequence of recognising thelegal personality of the Union. Thiswould essentially contribute to

simplifying the European legal system,as the distinction between the Unionand the Communities would becomeirrelevant, thus eliminating a number ofprocedural and decision-makingdifficulties, mainly in the two fields ofintergovernmental co-operation, CFSPand JHA. It still remains to be seen towhat extent the procedural particulars ofthese two fields will be considered,taking into account the fact that theTreaty stipulates their integration intothe single constitutional text. A specialproblem is raised by the correlation ofthese two fields with the process oflawmaking, as the Treaty does notstipulate any specific methods ofpassing secondary legislation in thematters of intergovernmental co-operation, as it has been the case sofar64, which means that the range ofapplicability of the future legal actsproposed by the constitutional text65

also extends over the two former pillarsof the Union, CFSP and JHA66. Itfollows that, at least the co-operation inJHA raises the problem of the principleof direct applicability of the legal actsof the Union, if we consider that theEuropean legal instruments stipulated inarticle I-33 of the Treaty are applicablein this field as well67, and they do havethis effect. This represents a noveltycompared to the present Communityacquis, in which the legislative actsspecific for the JHA68 do not benefit


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64 General guidelines, common strategies, joint actions, common positions in the CFSP – Art. 12 TEU;common positions, framework decisions, decisions and conventions for the JHA – Art. 34 TEU.65 European laws, European framework laws, European regulations, European decisions,recommendations and opinions – Art. 32 (1) of the Treaty; European laws and European frameworklaws take over, in most part, the structure of the present regulations and directives, respectively, aslegal acts of secondary Community legislation.66 The CFSP is stipulated in part III, title V, chapter II of the Treaty, while co-operation in Justiceand Home Affairs is regulated under a new name “Area of Freedom, Security and Justice”, part III,title III, chapter IV.67 The Treaty stipulates, as far as the CFSP is concerned, European decisions which are legal actswithout legislative character.68 See footnote 63.

from direct applicability, which explainsthe reserve manifested by the MemberStates when talking about passing thecompetences at Union level in this verysensitive field of national sovereignty. Inorder to counterbalance this effect ofdirect applicability, Working Group X ofthe Convention, which discussed theregulations of the Project referring toco-operation in the field of JHA,recommended that the competences ofthe Court of Justice should be extendedover the field of justice and homeaffairs, as these measures couldimmediately affect individual rights ofthe citizen.

b) The effects on internationalpublic law of recognising the legalpersonality of the Union

By explicitly granting legal personalitythrough the EU Constitution, the Unionbecomes an international public lawsubject, a capacity currently recognisedonly to the European Community.Following the dissolution of the “three-pillar” structure that currently ensures thefundament of the European construction,the Union takes over the competencesexisting within the Community pillar,including the competences of the EC oninternational level, consequently thenegotiation and conclusion of treaties ofinternational public law. Working GroupIII of the Convention reached theconclusion that granting legal personalityto the Union would not require the

alteration of the distribution ofcompetences on international levelbetween the Union and the MemberStates, nor that of the procedures andcompetences of Community bodies, onlyan adaptation to the newly createdstructure, in the sense of correlatingthese provisions with those referring tothe foreign policy of the Union6 9.

It has to be noted that the Union’snewly acquired quality of being asubject of international public law is notoriginal but derived as it has beengranted by its member states.70 Thusthis quality of the Union is limited, asthe EU can be a subject of only thoseinternational rights and obligationswhich are necessary for reaching itsobjectives and the fulfilment of itscompetences.71 Even though, accordingto recent German literature, theinternational legal personality of thenew EU can not be described as beinglimited.72 Proof of this can be seenwhen considering the competence toconclude international agreementsprovided by art. III-323 (1), as well asthe exclusive competence rule of theUnion of art. I-13 (2). The wording ofthese regulations as well as the recordsof the debates and negotiations heldwithin the European Convention indicatethat the Convention intended awidening of the external powers of theUnion by referring to the ECJ’s AETRjurisprudence73 regarding the implicitcapacity to conclude agreements.74


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69 The Final Report of Working Group III, pt. 20, 21, p. 6.70 Von Heinegg, in: Vedder/von Heinegg, art. I-7, nr. 2; States, as opposed to internationalorganizations, do possess an original quality of being a subject of international law, Hermann, in: DerVertrag , p. 310. 71 Von Heinegg, in: Vedder/von Heinegg, art. I-7, nr. 2.72 Streinz/Ohler/Hermann, Die neue Verfassung für Europa, p. 89; also Cremona, CMLR, 2003, p. 1347(1351, 1362), Fassbender, AVR 2004, p. 26 (31); de Witte, in: Pernice/Maduro, A Constitution for theEuropean Union, p. 95 (101).73 ECJ, Case 22/70, Commission/Council, [1971], p. 263.74 Streinz/Ohler/Hermann, Die neue Verfassung für Europa, p. 89.

The rule of international public law,that international legal personality alsorequires the formal recognition by otherinternational legal persons e. g. byconcluding agreements with non-member states and internationalorganisations, should actually play aminor role in this situation. The newUnion is the legal successor of thepresent EC,75 which already has legalpersonality and is widely recognised bystates and international organisations.76

With a view to simplifying the foreignrepresentation of the Union, as aconsequence of its acquiring legalpersonality, the function of UnionMinister for Foreign Affairs has beenc r e a t e d7 7. The Union Minister forForeign Affairs is to ensure thecoherent representation of the Unionabroad by initiating political dialogues ininternational conferences andorganisations. The representation of aforeign unitary common position is,however, limited in the situation inwhich the conclusion of an internationaltreaty falls both in the competence ofthe Union and in that of MemberStates. Such a case requires theparticipation in negotiations and in

concluding of the treaty both of theUnion and of the Member States, whichhave to co-operate in such a tightmanner as to be able to adopt aunitary common position78, althoughWorking Group III recommended, in thissense, establishing a single delegationrepresenting the Union79.

As a consequence of recognising itscapacity of international public lawsubject, the Union acquires, besides itscapacity of concluding internationaltreaties, other similar rights whichensue from this quality: the right to filecomplaints in an international court, theright to become member of aninternational organisation or of aninternational convention (for example,the European Convention on HumanRights), and the right of its employeesto benefit from privileges and immunity.

Once the Constitution for Europe willhave entered into force, the legalpersonality of the Union will replace thatof the EC, and the Union willsubsequently take over all theobligations that the Community hastaken on by virtue of the internationalrelations it is part of.


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75 See also art. IV-438 of the EU Constitution and Fassbender, AVR 2004, pp. 26.76 Von Heinegg, in: Vedder/von Heinegg, art. I-7, nr. 3; see also Streinz/Ohler/Hermann, Die neueVerfassung furEuropa, p. 33.77 Art. III – 197 of the Treaty.78 Opinion 2/91 of the ECJ, 19 March 1993, ECR pp. I–1061.79 See pt. 37 of the Final Report, p. 11.

ABBREVIATIONS

ADD. AddendumAVR Archiv des Völkerrechts (law journal)Bull. EU Bulletin of the European UnionBverfG Bundesverfassungsgericht (German Federal Constitutional

Court)BverfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of

the German Federal Constitutional Court)

CONF ConferenceCMLR Common Market Law Review (law journal)ECJ Court of Justice of European CommunitiesECR European Court ReportsEuR Europarecht (law journal)NJW Neue Juristische Wochenschrift (law journal)OJ Official Journal of the European Union

BIBLIOGRAPHY

Bothe, Michael/Hailbronner, Kay/Klein, Eckart/Kunnig, Philip/Schröder,Meinhard/Graf Vitzthum, Wolfgang: Völkerrecht, Berlin, New York, 1997;

Callies, Christian/Ruffert, Matthias: Kommentar zu EU-/EG- Vertrag, 2nd edn.,Neuwied 2002 (Johannes Christian Wichard, in: Callies/Ruffert);

Cremona, Marise: The Draft Constitutional Treaty: External Relations and ExternalAction, CMLR 2003, vol. 40, nr. 6, pp. 1347;

Dörr, Oliver: Noch einmal: Die Europäische Union und die EuropäischeGemeinschaften, NJW 1995, pp. 3162;

Dörr, Oliver: Zur Rechtsnatur der Europäischen Union, EuR 1995, pp. 334;Fassbender, Bardo: Die Völkerrechtssubjektivität der Europäischen Union nachdem

Entwurf des Verfassungsvertrags, AVR, 2004, pp. 26;Herdegen, Matthias: Europarecht, 8th edn., München 2006;Jopp, Matthias/Matl, Saskia: Der Vertrag über eine Verfassung für Europa, Baden-

Baden 2005 (Cristoph Hermann, in: Der Vertrag);Koenig, Christian/Haratsch, Andreas: Europarecht, 4th edn., Tübingen 2003;Oppermann, Thomas: Europarecht, 3rd edn., München 2005;Pechstein, Matthias/Koenig, Christian: Die Europäische Union, 3r d edn., Tübingen 2000;Pernice, Ingolf/Maduro, Miguel Poiares: A Constitution fort he European Union: First

Comments on the 2003-Draft of the European Convention, Baden-Baden 2004(Bruno de Witte, in: A Constitution for the European Union);

Schweitzer, Michael/Hummer, Waldemar: Europarecht, 5th edn., Berlin 1996;Streinz, Rudolf: Europarecht, 7th edn., Heidelberg 2005;Streinz, Rudolf/Ohler, Cristoph/Hermann, Cristoph: Die neue Verfassung für Europa,

München 2005;Trüe, Christian: Verleihung von Rechtspersönlichkeit an die Europäische Union und

Verschmelzung zu einer einzigen Organisation – deklaratorisch oder konstitutiv?,Europa – Institut der Universität des Saarlandes, Nr. 37, 1997;

Vedder, Christoph/von Heinegg, Wolff Heintschel: EU-Verfassung – Kommentar (inprint) (von Heinegg, in: Vedder/von Heinegg)

von Bogdandy, Armin/Nettesheim, Martin: Die Europäische Union: Ein einheitlicherVerband mit eigener Rechtsordnung, EuR 1996, pp. 3;

von Bogdandy, Armin/Nettesheim, Martin: Die Verschmelzung der EuropäischenGemeinschaften in der Europäischen Union, NJW 1995, pp. 2324;

von Bogdandy, Armin: Europäisches Verfassungsrecht, Berlin 2003 (WernerSchröder, in: Europäisches Verfassungsrecht)


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