By Terence Yung
I will first discuss the idea of the EU as a new legal order. In the beginning, the EU as an entity resisted categorisation. Under the orthodox dichotomy of Westphalian States, the EU could be seen as either a Confederation of States (international law) or a Federal State (national law). But this arguably rests upon a logical fallacy (false dilemma). One response was the sui generis theory of EU law, which operated as a third way. Mason (1955). This is the notion that the EU is incomparable, it can’t be fitted in traditional categories of international or national constitutional law. An important articulation of this can be seen in the seminal case of Van Gend en Loos, where the court established the idea of “direct effect” of Treaty provisions. The court reasoned based on the nature of the EU legal community the Treaties were designed to create. The EU was, in the court’s view, “a new legal order” characterised by a new concept of limited sovereignty where member states gave up sovereignty in areas of EU competence. This new legal order was directed at furthering the aims of the internal market (A26 TFEU). In order to facilitate this effort, the court recognised that Treaty provisions have “direct effect” (meaning they could be invoked in national courts) if they were clear/precise, unconditional, and not dependent on further action taken by the EU or the member state. This allowed individuals (who had a more direct interest) to vindicate their own rights and at the same time, enforce EU law. A second example can be found in the development of the idea of supremacy of EU law. In this area of the law, the nature of the EU legal order was used (along with the need to ensure full effectiveness of EU law) to drive expansion in the ECJ’s power. Initially, this meant that the Treaty comes out on top over provisions of national law. Costa v ENEL. This has been expanded to mean that even EU secondary law is supreme over national constitutional provisions (InternationaleHandelgesellschaft), this is regardless of the fact of whether the national law is pre-existing or new (Simmenthal II), and perhaps most surprisingly, EU law also trumps the law of intergovernmental organisations (Kadi). The idea of the EU as a sui generis (and particularly EU law as supreme) has posed particular challenges for EU’s accession to international agreements such as the ECHR. By A6(2), the Treaty of Lisbon made EU accession to the ECHR a legal obligation. However, while a draft accession agreement was proposed, the ECJ has ruled (on the basis of supremacy) that accession to the ECHR is incompatible with EU law. Opinion 2/13. It reasoned, in part, based on the sui generis nature of EU law. By A334 TFEU, the ECJ has a monopoly on inter-state disputes and ceding that power to the ECtHR in cases of human rights is incompatible. Moreover, the ECtHR has already established a policy of deferring to the ECJ in areas of its fundamental rights competence. Bosphorous v Ireland. The court also submitted that giving the ECtHR scope to interpret EU law was unacceptable. The examples here serve to underscore what is meant by characterising EU as a sui generis. It is important to underscore that neither direct effect and supremacy were, strictly speaking, “necessary” consequences of this new legal order. That is to say, one could imagine an EU without direct effect or supremacy. But their recognition contributed to full and consistent application of EU law. It is submitted this is desirable because without this, the EU might well have disintegrated.
The idea of EU as a sui generis has not been universally accepted and has also been subject to various criticisms. It is useful to set out and try to respond to these concerns. First, it has been suggested that the idea doesn’t really explain anything because it is essentially “tautology” (Hay 1966). As this argument goes, the EU is a new legal order and not a state because it is a new legal order and not a state. It thus rests on a fallacy and doesn’t tell us anything about why this is the case. But this view could be fairly challenged as an oversimplification. The traditional explanation for why the EU is a new legal order is that member states agreed to limit their own sovereignty in the limited areas of EU competency. The EU is not a new legal order because it is a new legal order; it is a new legal order because member states agreed to a certain state of affairs. The idea of agreement being the source of legitimacy is nothing new. In political theory, democracy is frequently legitimised by consent of the governed and this is not derided as tautology. Scotus (circa 1290). Second, this categorisation is, in essence, a negative one because all it tells us is that the EU is neither an international organisation nor a federal state – and leaves us (indirectly) still within the inadequate conceptual framework of the Westphalian dichotomy. Schonberger (2004). Third, the theory is historically unfounded in the sense that all union states are based on pre-existing international and national law. Westerkamp (1892). Both the second and third criticisms could be fairly challenged for wrongly viewing the idea of the EU as a sui generis in terms of the Wesphalian state dichotomy, when in fact it exists apart from this narrow structure. Fourth, the idea of sui generis is inflexible and does not take into account the EU’s evolution. If the EU loses some supranational features and becomes more state-like, e.g., by going from ECSC to E(E)C, it would still be a sui generis. Schutze (2016). Here, it may be countered that sui generis does not need to be a fixed concept, but may exist on a continuum. So, even though the EU becomes less supranational (and more like a state), it is still neither and may yet be sui generis without necessarily undermining the descriptive and explanatory power of the concept.
I will next discuss the idea that the EU is not a state. Lock (2010). First, a working definition of states should be introduced. For this purpose, I will look at three aspects of “state” suggested by Black’s Law: (1) a people, (2) having sovereignty, (3) capable of making war and peace. I note here that this is not the only definition, and there are certainly other ways of understanding “state” (some of which will be discussed infra). There are several ways to evidence this fact. First, take the criterion of a people. With respect to the institutional framework, one may observe how the EU “legislature” does not (directly) derive its power from “the people,” but rather from a number of interests. As a case in point, one can look to the institutional framework, which consists of the Council of Ministers (representing MS governments), the European Commision (represents the EU as a collective organisation) and the European Parliament (representing the will of EU citizens of their member states). A true state is legitimized by consent of the governed. See e.g., US Const. (preamble) (“We the People”). By contrast, because the EU must represent many different interests and because it does not just represent the people, it is not a state and must worry about legitimacy. Second, take the criterion of sovereignty. This can be understood this in the Westphalian sense – the power of the state to do whatever it wants and the fact that no one else can tell the state what to do. While EU law is supreme, it is not completely sovereign in the Westphalian sense. The initial point to make here is that the EU does not have “kompetenz-kompetenz” (i.e., the power to define its own competence). See e.g. Weatherill (2011). This is codified in A5(1) TEU (the principle of conferral), meaning the EU only has powers assigned to it. Articles 3, 4, and 6 TFEU set out exclusive, shared, and supporting competences respectively. This principle has serious teeth (1) if the EU does not have competence in a dispute, the ECJ cannot entertain the case (Dano) and (2) if the EU takes action in areas where it lacks competence, those measures can be annulled (Tobacco Advertising I). Another aspect of this concerns the fact that, as Brexit shows, the member state can always regain full sovereignty by invoking A50(2) TEU and leaving the EU (by which its prior full sovereignty could be regained). See e.g., ECA 1972; cf. EU (Withdrawal) Acts 2018 & 2020. The idea that its members can come and go as they please is anathema to the idea of the EU as a state. Third, the EU has no direct power to make war or peace. The EU itself does not have the power to make war because it has no army of its own and does not participate in military alliances.
It is comparatively more difficult to argue against the idea that the EU isn’t a state. One potential counterargument would begin by challenging the idea of a “state” as a monolithic concept and to argue that there is, in fact, a “statehood spectrum.” Hobbs and Williams (2021). The idea has been proposed vis-a-vis micronations and one could argue that the idea could be extended to the EU on grounds that it is fundamentally a conglomerate of micronations. So, to take one example, the EU is arguably state-like in that it can take indirect steps to facilitate war or peace. For example, it could sanction hostile regimes (e.g., Russia), but this has to be done with the consent of the member states (cf. Bulgaria’s threat to veto sanctions against Russia). It can also facilitate peace. The internal market (A26 TFEU) is itself a peace project, with the aim of preventing EU nations from going to war by encouraging a high level of economic co-dependence that war would be unthinkable and practically impossible. There are several potential criticisms of this rejoinder. First, by defining statehood as a continuum, we have moved the signpost from its orthodox Westphalian understanding. So, it can be argued that this answers a different question. Second, even were we to accept that the suggestion is responsive, one could argue that the idea of a statehood continuum should not be so readily extended from its micronation context to a multi-state entity such as the EU. The EU is fundamentally different from “self-declared” micronations such as Taiwan in that it does not just mimic/perform acts of sovereignty (it has limited competence) and it is not without legal foundation (e.g., its existence is based on the Treaty and agreement of the member states).
About the author
Terence Yung is an international arbitrator with a commitment to resolving complex disputes in a fair and impartial manner. His interests span across various industries, including financial markets, intellectual property, energy, and infrastructure projects. He has been an Associate Member (ACIArb) of the Chartered Institute of Arbitrators since 2022. In addition, he is affiliated with the German Arbitration Institute, the London Court of International Arbitration, the International Bar Association, the International Centre for Settlement of Investment Disputes, and the Swiss Arbitration Organization. He was awarded an LL.B. from the University of London with First Class Honours. Prior to that, he was awarded a B.A. and a B.M. from the University of Houston, both with summa cum laude honors. He also holds course certificates from Yale University, the University of Pennsylvania, the University of Edinburgh, and the SDA Bocconi School of Management.
Email: adrwithyung@gmail.com
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