The Nature of European Union Law
TRATADO DE DERECHO DE LA UNION EUROPEA, Tomo IV, Chapter ‘Naturaleza del derecho de la Unión Europea’, JM Beneyto, B. Becerril, J. Maíllo, eds., Madrid: Aranzadi, Forthcoming (English version)
63 Pages Posted: 30 Aug 2011
Date Written: August 30, 2011
The Chapter endeavours in re-visiting the debates on the nature of EC/EU law after the debates on the European Constitution of the first decade of the 21st century and the entry into force of the Treaty of Lisbon. It is not an essay in legal theory: it is an analysis of positive law which intends to help understanding why and how EU law is different both from State law and from ordinary international treaty law. The purpose of the chapter is to help avoiding the usual errors which are made by scholars who try and apply concepts of state law, especially of constitutional law, to EU law.
The introductory section explores The nature of EU Law after the entry into force of the Treaty of Lisbon, the impact of the 2000s debates on the question of the legal nature of EU Law and how EU Law keeps its international law character, with specific features.
A second section goes into the consequences of the fact that EU law is based on binding agreements between sovereign states, i.e. the principle of primacy; the application of the principles of international state liability; the presence of Member States’ representatives in EU institutions and bodies, and their privileges and immunities; the control and monitoring system of Member States; the application of other rules, principles and reasoning from international treaty law; and also the specific character of EU Law vis a vis international treaty law, which is as a consequence of the international treaty nature of the EU Constitution.
A second section explains why and how EU law is endowed with effectiveness mechanisms unusual in international law, i.e. it analyses the system of sources of EU Law; the sanctioning regime included in the system of the founding Treaties; the principle of direct applicability and the parallelism between obligations of the state and rights of individuals; the principle of uniform application of EU Law.
As a conclusion, the chapter explains why calling EU law as sui generis type of law is not satisfactory: though different from most of current international treaty law, EU law is keeping its international nature. Thus international public law is a supplementary source of positive law of the European Union, whereas Member state law cannot be more than a source of inspiration.
Keywords: EU Law, international treatly law, constitutional law, primacy, direct applicability
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