The Standing of States in the EU
TRANSNATIONAL CONSTITUTIONALISM: INTERNATIONAL AND EUROPEAN MODES, N. Tsagourias, ed., Cambridge: Cambridge University Press, Forthcoming
41 Pages Posted: 31 Jul 2006
Many European Union lawyers believe that we ought to compare EU law to constitutional law and the European Union's institutions to those of a state. They therefore import the concepts of democratic deficit, fundamental rights and citizenship into the conceptual apparatus of EU law. The Court of Justice of the European Communities broadly endorses the analogy. Nevertheless, the state analogy leaves much unexplained. A closer look at the allocation of powers between states and the institutions, the law on competences and subsidiarity and even the institutional design envisaged by the draft European Constitution shows that the Union is fundamentally different from a constitutional legal order. When seen in its entirety, the constitutional architecture of the European Union exhibits a persistent respect for the standing and powers of states in a way that is unique to the Union. This particular standing of states in EU law cannot be accommodated by the state or constitutional analogies.
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