THE SOURCES OF EU INSTITUTIONS' ORIGINALITY

Abstract

This article seeks to provide, by using a legal approach and a chronological perspective on the European construction, an answer to the issue of the European Union's legal nature. The many stages completed by this economic and, subsequently, political construction have brought about numerous changes of substance, concerning the powers of the three original economic integration organisations (EEC, EC, EURATOM), subsequently incorporated in a multilevel system with a political governance unique in the world (the European Union), a multifaceted construction, whose powers have increased progressively, both in relation to the Member States and to the organisations of economic integration (EEC, EC). During other stages, the authors have witness the strengthening of the European Union (EU), the development of the European Community through the Lisbon Treaty (the other organisation of specific integration, the European Economic Community, having lasted a limited period of time, had already stopped to exist legally in 2002), they witness its substitution by the EU and the incorporation of EURATOM in the new EU.

Headnote

This article seeks to provide, by using a legal approach and a chronological perspective on the European construction, an answer to the issue of the European Union's legal nature. The many stages completed by this economic and, subsequently, political construction have brought about numerous changes of substance, concerning the powers of the three original economic integration organisations (EEC, EC, EURATOM), subsequently incorporated in a multilevel system with a political governance unique in the world (the European Union), a multifaceted construction, whose powers have increased progressively both in relation to the Member States and to the organisations of economic integration (EEC, EC). During other stages, we witness the strengthening of the European Union (EU), the development of the European Community through the Lisbon Treaty (the other organisation of specific integration, the European Economic Community, having lasted a limited period of time, had already stopped to exist legally in 2002), we witness its substitution by the EU and the incorporation of EURATOM in the new EU. The evolution towards ever more coherent stages of European federalism illustrates the dynamism of this construction and its progressive consolidation (an expression of neo-functionalism) of the EU's original nature.

Keywords: European Union, Treaty of Lisbon, European construction, Maastricht phase, post-Nice phase, EU institutions.

Introduction

This paper aims to identify the historical origins and the characteristics of the evolution of the European integration process having led to the creation and strengthening of a single political entity, whose institutional structure is characterised by originality, due to both its legal-political elements and to its manner of organisation and functioning, at European level, of the various legal-political elements specific either to a state, a federation, an international organisation or a multilevel political system.

Thus, we can state that the originality of the EU institutions is due both to the specific historical causes of the EU's emergence and to the dynamics of the European construction. This distinguishes the Union both from international intergovernmental organisations and from other political integration systems from other regions of the globe.

1. Specific causes of the EU emergence as an original political entity

The European Union, as an original political entity (qualified by certain authors as a "multilevel political system" or "a form of post-state governance"1) emerged on the European political arena due to several main causes.

The first one was the need to boost the European construction (represented, until the Maastricht phase, by the three international integration organisations, namely EEC2, ECSC3, EURATOM4) towards a new stage of development, combining the Community method with a method of classical political cooperation5 (put into effect through different intergovernmental policies, such as the Common Foreign and Security Policy or the JHA pillar6). But these two dimensions of cooperation between Western European states (the Community dimension and the intergovernmental dimension) were both integrated in the architectural structure of a new political entity (association of states) which has become, this way, a complex political system whose objective is regional integration.

The first paragraph of the Preamble of the Maastricht Treaty includes this specific cause (free and sovereign will of the Member States of the European Communities to mark a new stage in the process of European integration)7. Therefore, the wording of this paragraph shows, from the very beginning, that we are dealing with a political integration entity representing merely one of the stages of an original European political process. Moreover, this process was qualified by certain authors as a manifestation of the neo-functionalist theory and thus it is supposed to result in the creation of a form of post-state political governance8, of a multilevel political system, in which states are no longer the exclusive holders of the political power.

This new political entity9, according to the EU's founding Treaty10, must have a single institutional framework (which has led to considerable controversy as to the political entities to whom this institutional framework belongs: either to the Communities, since each of them would have its own legal personality and would not be expressly "deprived" of their political institutions, by the amending treaties, or, on the other hand, to the EU, the "user" political entity, the one "benefiting from" institutions which do not belong to it). In our opinion, since we envisage the existence of a distinct political entity, enshrined by an international treaty (just as the Communities) created by the same states which set up the Communities, being part of the same integration process, whose first stage resulted in the emergence of the three Communities, taking into account that "The Union shall provide itself with the means necessary to attain its objectives and carry through its policies" (Article F paragraph 3/The Treaty of Maastricht), we believe that the European Union holds this single institutional framework in its own name11.

This way, once the Treaty of Maastricht (1993) and the process of European integration have entered a new phase, in our opinion, have generated a series of important consequences also for the Community institutions12. If, until the Treaty of Maastricht, they had belonged to the Communities, once the European Union was created, we can no longer speak about an exclusively Community legal character of these political institutions13, since they belong to a new political entity and they can also function outside the Community pillar (as they have decision-making powers in the areas of CFSP14 and JHA). On the other hand, at the relevant time (before the entry into force of the Lisbon Treaty) we supported the theory of the European Union's implicit legal personality15, believing that, in its absence, the Union could not have set out political objectives or other any type of objectives, or common policies and would not have been able to implement such objectives or policies16. This legal theory is verifiable especially from the perspective of a historical interpretation. This way, analysing the evolution of the European Union after the Maastricht period, one can notice the strengthening of its ability to set out and implement, through its institutions, European objectives and policies. Thirdly, during the phase of the Nice Treaty, we think that the EU's presence as a distinct political entity at international level (especially through the CFSP pillar) has become more visible due to the increased role of certain supranational political institutions (the European Commission, the High Representative for CFSP), meant to make it visible in international relations.

Subsidiarity (regarding the EU's power to intervene, under certain circumstances, in the domestic affairs of the Member States)17 is a principle enshrined by the Treaty of Maastricht and, in our opinion, it favours the EU's legal personality (just like the existence of a set of exclusive or shared competences of the EU). This legal principle cannot be explained if we refuse to acknowledge the legal personality of the EU, if we consider it to be "a fiction" (thus cancelling the creative legal effect of the Treaty of Maastricht, which makes up a political union, not another free trade area)18.

Going beyond the Community phase, by the creation of the European Union (including the European Communities in the first pillar of its composite internal structure) required, in our opinion, an adaptation of the legal terminology to the new political reality. This way, the phrase "the EU institutions" should have been used (correctly) - when referring to the Maastricht phase and to the subsequent phases - and not the phrase "Community institutions". After the creation of the EU, these political institutions no longer limit their scope of action to the Community pillar, but they have various legal competences in the entire multilevel political system of the EU (except for the field reserved to the Member States).

In Article A of Title I/Treaty of Maastricht, the same idea was reiterated, reflecting this specific cause of the EU's creation ("this treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe"). This wording is based on the idea of the setting up of a political union in which the integration process does not prejudice or limit the dimension of European democracy. Thus, the Union becomes one of the innovations of the Treaty of Maastricht, the other being, in our opinion, the initiation of a process for the creation of a democracy at European political level, able to transform the union into a complex political system19 (within the meaning of Article A (2) / TEU) in which decisions are taken as closely as possible to the citizen20. This element would distinguish the EU from international organisations that do not involve the direct political relation between their decision-making bodies and the citizens of the Member States - at least in the case of cooperation organisations. Only in the EU's case, due to the creation of the European citizenship under the Treaty of Maastricht, one can talk about a direct political relation between the EU institutions and its citizens. Therefore, another specific cause of the emergence of the European Union was the need of the EC Member States to go beyond the economic level of integration, to move towards a political integration (put into practice by creating the European citizenship and "the political union between Europe's peoples", objective based on the creation and consolidation of a representative democracy21, having an impact including on the procedure of appointing the representatives of the EU citizens, the composition and the powers of the EU institutions).

Article A of Title I/TEU also emphasises the main task of the European Union, proving to have an original structure, with several levels of government (European, national, regional)22: thus, the Union must organise, coherently and jointly, the relations between the Member States and their peoples. At institutional level, this translates into the Union's task of organising the political-legal relations between the EU institutions representing the interests of the Member States and the ones representing the interests of the European peoples or the interests of the EU as such (for instance, the Commission and its role to mediate between the Council of Ministers and the European Council, on the one hand, and the European Parliament, on the other) so that it can ensure the effective functioning of the entire political system.

The second cause of the EU's emergence, which has generated certain effects at institutional level, was set out also in the Preamble to the Treaty of Maastricht and is related to the objective of the European states to put an end to the historical division of the European continent23, the past history dominated by conflicts, but also to avoid Europe's separation into two ideological blocs, as it happened during the Cold War. From an institutional perspective, this implies the need to strengthen the existing Community institutions, so that they can involve in the functioning of European decision-making mechanisms adapted to these needs and objectives.

The third specific cause of the EU's emer- gence, related to the above-mentioned first two types of causes, refer to the EC Member States' need to strengthen the democratic aspect24 of the economic integration construction, so that it can ensure the continuity and legitimacy of this inte- gration process. Thus, the Preamble to the Treaty of Maastricht includes several references to the political dimension of the European integration process: the need to confirm the importance of the principles of liberty, democracy, the rule of law, respect for human rights and fundamental freedoms, to enhance further the democratic and efficient functioning of the EU institutions. Con- sequently, this third cause which led to the emer- gence of the EU refers to the need for the democ- ratisation of the European construction, aspect which goes beyond both the economic phase of the integration and the stage of Community in- tegration, emphasising the beginning of a new stage, one in which decisions must be made "as closely as possible to the citizen".25

Furthermore, according to the new paragraph 1 of Article F/TEU, amended by the Treaty of Amsterdam26, the democratic nature of the new political union27 is mentioned: it shall be founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, the rule of law, principles which are common to the Member States. Therefore, the EU's political system is characterised, starting from the stage of the Maastricht Treaty (which created it), by a double condition for democratic existence: first, at the European level of government; secondly, at the national level of each Member State. At in- stitutional level, this translated into a continuous need to emphasise the democratic nature of the EU institutions, the constant objective of each in- stitutional reform within the EU. Thus, the Treaty of Maastricht enshrined the power of legislative co-decision of the European Parliament; democ- ratisation and the effective achievement of the European Parliament's political control over the Commission; creating the independent political institution of the European Ombudsman, in or- der to defend European citizens' rights; enshrin- ing the principle of institutional transparency and protection of personal databases. Nevertheless, these public benefits do not suffice to reduce the Union's democratic deficit or to confer a strong democratic character on the EU institutions, from the perspective of its composition, powers or manner of functioning of these institutions in relation to the Member States or directly with the European citizens.

The fourth cause of the EU's emergence concerns the need to unify into a single political framework a series of measures taken by the Member States, adopted in the framework of intergovernmental policies on external relations, security, economics and development policies; these policies required a single institutional framework and a unitary political structure, able to ensure the consistency of these measures (Article C, the second paragraph/TEU, amended by the Treaty of Amsterdam).

Nevertheless, the EU's emergence cannot be reduced to historical and political causes; there are a series of other economic and social causes or related to the need to affirm a common security and defence policy, which were translated into the Treaty of Maastricht, starting from the EU's own objectives. At European institutional level, as the European integration process develops, each objective of the EU is translated into a series of specific powers of the EU institutions in fields such as social, economic, common security and defence, but also in other areas like the ones regarding economic and social cohesion, justice and home affairs, visas, asylum and immigration.

All these causes of the EU's emergence also reflect a certain political-legal profile of its institutions (which cannot be assimilated to state bodies or the bodies of an international intergovernmental organisation, given the composition, powers, the manner of appointing members, the legal acts adopted or to the decision- making processes taking place within each of these institutions,). This political-legal profile reflects the idea that we are dealing with political institutions which are the result of a completely original process of European integration, which cannot be imitated on other continents, precisely due to the fact that it is based on causes and needs specific to Europe, that cannot be transposed tale quale in other areas.

Although some of the causes leading to the creation of political integration systems such as the EU on other continents are the same as in the case of the EU's emergence (for instance the need to extend democracy to another area; the need to avoid political disputes or military conflicts between states, through a progressive and sectoral integration of the Member States' national economies), each process of regional integration will nevertheless have its own characteristics, which are the expression of a unique evolution.

2. The dynamics of the European integration process, an illustration of the EU's institutional originality

Each stage in the evolution of the European construction (from the creation of the three European Communities to the Nice moment) produces certain effects at European institutional level, enhancing the originality of the EU institutions.

Thus, the Community stage is distinguished first of all by the establishment of the fourth Community principles taken from the Schuman Plan and adapted to the Community treaties28, principles underlying the organisation and functioning of the institutional framework (the superiority of the Community institutions, since they are created with a view to participate in the creation and development of a supranational Community of law; the independence of the Community institutions; the cooperation between institutions - they are not organised according to a de jure institutional hierarchy; equality between states, a consequence of their sovereign nature, translating into the principle of equal rotation of the Presidency of the Council of Ministers, as well as into the right of each state to be equally represented in the Commission, an institution endowed with substantial decision- making powers).

Also during the Community stage, through the Treaties of Rome establishing the EEC and EURATOM (1957) the powers of the Parliamentary Assembly were extended (as its members will be elected by direct universal suffrage); at the same time, in our opinion, there has been an evolution of supranationality, as the majority vote within the Council was established. From an institutional perspective, this stage comprises several innovations: the creation, in 1958, of a single Court of Justice; the existence, in parallel, of three distinct institutional systems, belonging to the three Communities (each of them having an intergovernmental Council, as a decision-making institution; an institution with executive powers - the Commission; a deliberative political institution - the Assembly; a Court of Justice, as a judicial institution).

The second stage consists of the institutional unification, which took place in 1960, when, by the unification of the three Assemblies of the three Communities, the Parliamentary Assembly29 was set up; subsequently the Treaty of Brussels of 8 April 1965, which entered into force on 1 July 1967, operated an overall institutional merger30: thus, at decision-making level, a single institution (the Council), common to the three Communities, was set up; at executive level, the European Commission was set up as a single political institution; at the same time, a single Community administration was created, a single budget of the Communities was set up and a single statute of the Community civil service was established.

A new stage in the evolution of the European integration process, which brings new elements as regards the institutional framework, has begun after the entry into force of the Single European Act (on 1 July 1987), whose Preamble provides for "[the] transform[ation of] relations as a whole among [Member] States into a European Union", thus prefiguring a future European political entity. At the same time, the European Council is institutionalised, whose existence was based only on the political communication of the Heads of State and Government of the Member States of the three Communities, who participated in the Paris Summit of October 1974. The Council's qualified majority voting is extended. The consultation of the European Parliament by the cooperation procedure in the European decision- making process is strengthened. The setting up of the Court of First Instance is foreseen. Moreover, it is decided that the Presidency of the political cooperation shall be ensured by the state holding the Presidency of the Council of the Communities, as a confirmation of the previous practice, and a political secretariat is also set up, having its headquarters in Brussels31.

Mentioned in the Single European Act as an objective of the Member States, the European Union, as a distinct political entity32, is set up by the Treaty of Maastricht (in force from 1 November 1993).

The beginning of this phase of the European integration process has important consequences at institutional level, implicitly illustrating the original path which the Member States, by their sovereign will, managed to establish for the EU's evolution and its institutional framework. Thus, the Treaty of Maastricht provides the following: the Council's role of adopting the guidelines of the economic policies of the Member States and of the Communities and its role of monitoring the evolution of economy in each Member State and in the Communities; the Communities' competences in the framework of the political union33; an increase of the European Parliament's role (by the co-decision procedure).

Nevertheless, the most numerous and important changes at European institutional level were those brought during the Amsterdam (1999) and Nice (2003) stages.

Thus, the Treaty of Amsterdam repealed the 1965 treaty merging the executives, without prejudice to its essential effects34 (the single institutions for the three Communities were maintained). The Council was allowed to have a specific competence, by the amendment of Article 7/TEU, to find serious and persistent violations of the principles referred to in Article 6(1)/TEU and to suspend the exercise by the offending states of certain rights resulting from the treaties. The jurisdiction of the CJEU35 is extended in the new Title IV ("Visas, asylum, immigration and other policies related to free movement of persons"). Moreover, a Protocol on the institutions is annexed to the Community Treaties and to the Treaty of Maastricht, in view of the EU's enlargement, modifying, after the first EU enlargement, the Commission's composition, while establishing a new voting weigh within the Council.

The Treaty of Nice, subject to the need to enlarge the EU and, therefore, to institutional reform, introduces new and important legal and political changes concerning the powers, composition, the appointing method, the rules for the decision-making process of the EU institutions36. This way, the Treaty provides for a maximum number of MEPs, up to 732, and a new distribution of seats in the European Parliament (Germany being the only state that maintains its number of MEPs, within a Union enlarged to 27 members). At the same time, the Council is endowed with the power to approve the status of the members of the European Parliament by qualified majority and to establish (by co-decision) the status of political parties at European level (which illustrates, in this context, the de facto prevalence of this intergovernmental political institution in the EU's institutional framework). A maximum number of 345 votes is established for the Council of the European Union and, if a decision is made by qualified majority, any Member State can ask for a verification of compliance with the condition that the Member States constituting the qualified majority represent at least 62% of the total population of the EU (if it is found that this condition was not met, the decision cannot be adopted).

As regards the European Commission, the requirements to improve the effectiveness of this executive institution (if we refer to one of its essential functions) called for the establishment of a threshold of representation in stages: "thus, after the EU enlarges to 27 Member States", as provided for by the Treaty of Nice, the number of Commissioners will have to be smaller than the number of Member States, based on a system of equal rotation. Moreover, it is emphasized the Commission's supranational nature, given the election of the President and members of the Commission by qualified majority; the powers of the President of this political institution increase, in the sense that the President may ask (with the approval of the College) a commissioner to resign or can appoint Vice-Presidents of the Commission37.

At the level of the Court of Justice and the Court of First Instance (CFI), other changes are made during this phase: judicial chambers within the CFI are set up, specialising in certain fields such as intellectual property or European civil service. CFI has important powers such as: solving actions for annulment, proceedings for failure to act, actions for damages, actions related to the civil service38, actions based on an arbitration clause, as well as giving rulings on preliminary questions in specific fields (innovating role of the CFI). There are also important changes concerning the Court of Auditors or consultative bodies such as the Committee of the Regions and the Economic and Social Committee, in the sense that their political influence is strengthened and a channel for a permanent communication between the European level of government and the regional one is ensured. Moreover, the improvement of the cooperation between the Court of Auditors, as an EU specialised institution, and similar national institutions (including by setting up a Liaison Committee with the Directors of the Courts of Auditors in the Member States).

During the Lisbon phase, a significant part of the text of the draft Constitutional Treaty was taken, supplemented with numerous innovations related to the dimension of the EU's competences, its legal nature and its institutions (marking a significant development towards the federalist phase, in our opinion).

All these continuous changes of the EU's institutional framework illustrate the dynamics of the European integration process, the fact that this institutional framework has always been considered to be flexible enough to meet the functioning needs of a constantly enlarging Union.

Therefore, the original legal-political nature of the EU's institutions partly stems from the fact that they are not rigid and unable to change structures. On the contrary, these political structures progressively reveal their originality, through the innovating elements they include during each phase, starting from the establishment of the Communities up to the Nice moment, but also from the simplification of the institutional functioning (by extending co-decision; by extending qualified majority voting) destined to ensure their effectiveness and legitimacy (for instance, by associating the European Parliament, on an equal footing with the Council, regarding the European legislative process).

3. The original legal nature of the European Union, a cause of the originality of the EU institutions

Another cause of the fact that European Union's institutions have an original legal-political nature not only in relation to the bodies of a state, of a federation, of an international organisation, but also in relation to the very political system they belong to, is the original legal nature39 of the entity called "the European Union".

Thus, according to the Treaty of Maastricht/1993 establishing this political entity, the EU is based on three international integration organisations40, namely the European Communities (n.b. - after the 50 year -period of the ECSC Treaty expired, only two of these organisations remained in the structure of the EU, namely the EEC and EURATOM41), as well as a series of intergovernmental policies organised in other two pillars (common foreign and security policy; police and judicial cooperation in criminal matters, after the amendment of Title VI - JHA by the Treaty of Amsterdam). This way, the cooperation between the EU and the Member States is achieved by the Community pillar, while the intergovernmental pillars reflect a materialisation of the EU's objectives in these sectors only by the use of political cooperation instruments by the Member States (the setback of integrationism, within these two pillars, according to certain opinions)42.

Legal controversy related to the legal nature of the EU begins to emerge from the moment when a legal analysis of the nature of the European Communities is undertaken. Thus, there are different opinions in the legal doctrine concerning the legal nature of the Communities, which makes up the first pillar of a unique political system on the international arena. Thus, they did not achieve the confederal phase, but they managed to go beyond it43 (as they do not have the ordinary competences of a confederation, such as the foreign and defence policy, but they have a single currency, their own institutional system, a decision-making method by majority vote, European citizenship and a Parliament whose members are elected directly by the European citizens).

But the European Communities are not "confederative associations of states", as they have certain features that make them similar to international integration organisations44, as international legal entity, distinct from states and unions of states (including the confederation); the independence and superiority of their political institutions in relation to the Member States (especially through the legally binding status of the acts adopted by these European institutions, which are imposed on the Member States and directly included in the national legal order); the supranational and integration legal nature of the Community law; within the Communities, there is a scheme for the distribution of powers similar to the scheme applicable at State level, implying that (legislative, executive, judicial) powers are exercised, in certain cases, in the place of State bodies, on the Member States' territory and concerning their citizens45.

Consequently, such arguments make us believe that the three Communities46 are rather supranational organisations (or integration organisations, according to certain opinions) than confederations or international cooperation organisations (in which the activity of the main and subsidiary bodies is a specialised one, strictly limited to the scope of the powers conferred by the Member States by the organisation's articles of association47). Moreover, cooperation organisations do not include "dimensions of advanced economic integration", such as the common market, and the decisions adopted by the bodies of such an organisation do not have the legal value of "direct effect".

The same arguments can be used to counter certain opinions which maintain that the nature of "federal state"48 of the European Communities (which would mean that the legal order and the status of the Communities should be regulated by a "constitution" and not by an international treaty, and the Member States would lose their quality of legal entity in favour of the Communities, aspects that do not reflect the actual state of affairs). Moreover, we should be noted that, unlike the federal state, the Communities do not have the general power to establish the distribution of competences between them and the Member States49 (from this perspective, the Communities are similar to intergovernmental organisations).

Lastly, according to other opinions50, the Communities are characterised as "common public powers, independent from state's public power". This is a legal current which acknowledges that the Communities exercise state-like powers (especially in the legislative field), but in a political framework superior to states (which distinguishes them from a public service). Nevertheless, the powers conferred by the Member States on the Communities are not abandoned by the states (denial of the hypothesis of the "transfer of competences"), but they are exercised in common, through the Community institutions.

But this is a point of view that we cannot embrace, as it limits to a great extent the consequences and the integration nature of the Communities. The Communities were created by the Member States' sovereign will to "transfer" to a superior level of political government51 certain competences (the theory of the "cluster of competences") exercised by the Community institutions as representatives of the Member States (the Councils), of the Communities as such (the Commission), of the peoples of Europe (the European Parliament). It cannot be stated that these political institutions of integration would be similar to the bodies of a cooperation international organisation, since they exercise their own public power52, supranational in nature, which is imposed to states and their citizens precisely by virtue of the existing "transfer of state powers"53. At best, we can accept that we are dealing with "European public powers", that is supranational powers. But it would mean to ignore the superiority, the legal and political independence of the Communities' institutions in relation to the Member States (the EC institutions are not mere forums of cooperation between states, but they have their own decision-making powers which they exercise at the European level of government, as their decisions have unique supranational legal consequences: direct effect, immediate applicability, precedence over the national law of the Member States).

Since the European integration process has entered a new phase (Maastricht/1993) and after the emergence of the European Union, the Communities are included into a new political structure, alongside intergovernmental policies. During this phase, the single institutional framework of the EU is established, by which the EU institutions are granted competences not only in the Community pillar, but also decision-making powers in the field of CFSP and JHI (the Council, the European Council or the Commission are EU institutions and not "bodies of an international cooperation organisation" which could only reflect states' will).

The Treaty of Lisbon (in force since 2009) and the new stage of integration initiated by it establish "a new European Union", with a double conventional basis (the two treaties, TEU and TFEU), the European Community disappears (integration entity replaced by the EU, succeeding it as concerns the legal rights and obligations, which is why the new EU expressly undertakes the integration nature of the EC) and EURATOM remains incorporated in the new architecture. During this stage, the Union's integration nature, as a political and economic entity, is substantially enhanced, both concerning its competences and its multiple ways of cooperation with the Member States, its interference in numerous areas of competence which traditionally belong to the Member States, in strengthening the powers of its institutions and providing a legal framework for the setting up of new agencies and bodies (the European Public Prosecutor's Office, the European Voluntary Humanitarian Aid Corps, the European External Action Service, etc).

Conclusions

The European Union has been, ever since its emergence, a complex, multilevel political system that has generated endless controversy regarding its legal-political nature. Its Uniqueness54 at international level and in relation to all types of existing models of political organisation is one of the causes which implicitly led to supporting the theory of the originality of its political institutions. Once the Communities have entered into the new political system, this evolution of the European integration has had legal and political consequences also at institutional level: thus, the Communities' institutions entered a new phase of evolution (post-Maastricht, but also post-Lisbon), becoming the single institutions of an entire multilevel55 political system. In our opinion, these political institutions are no longer specific to the Communities, although they do not lose their Community legal-political nature, but they belong to the EU's political system. Nevertheless, they are able to function inside any of the EU's pillars, within the Community one, as well as within the other two intergovernmental pillars, without losing their character of "EU institutions" (that is institutions which are part of the political system as such, not belonging exclusively to one pillar). Although some of these institutions were created in the Community phase of the European integration process, they cannot be forever regarded as "the Communities' monopoly". We cannot confuse these dynamic political institutions, each one having its own evolution, being subject to countless legal and political reforms made by each amending treaty, with a single stage which cannot be transcended, namely "the Community stage" (in which, regardless of the EU's emergence, it is rigidly considered that these political institutions belong to the Communities, the Union holding only a "right to use"56 them). But, this would imply the drawing up of a historical classification of the entire evolution of the European integration, depending on the prevailing political entity: "the Community stage" (in which the Communities are the only existing international integration organisations; after the EU's emergence, they remain the prevailing political entities, the legal personality of the Union and, therefore, its legal capacity to possess its own political institutions being denied) and, on the other hand, "the EU stage" (in which, once created, the EU political system is the one including the Communities, thus proving that it is not a legal fantasy, nor an abstract entity; during this phase, the Community institutions become the EU institutions, belonging to the system as such and not only to the Communities.

Secondly, we cannot agree with the fact that the EU is simply a political entity that "uses" the single institutional framework57, since this would express, in our opinion, the superiority of the Community pillar over the entire multilevel political system of the EU, as well as the refusal of the supranational and integration nature of the EU political system (according to this perspective, only the Communities possess such legal and political characters, but not the Union). On the other hand, as a "user" of the Community political institutions", the EU political system should represent merely a phase in the European integration process (the EU being obliged to "return" to the Communities the political institutions used by it as a "bare owner" at the level of the entire system, after its disappearance and once the European integration process passed to the next phase). But this is absurd, as it creates a major discrepancy between the Communities and the Union, due to political institutions: thus, the Community phase would never end, it would be a dimension of the European integration process which refuses to replace the Communities with another entity or their assimilation into a new EU58). This would lead to a paradoxical situation of setting up a new political entity (by a European construction or an international treaty) or promoting intergovernmental policies (CFSP, for instance) without bringing them together under one political umbrella, while the Communities would remain outside the scope of reforms, preserving their institutional framework unchanged.

In such a situation, the paradox could continue, as it would imply that "the Community dimension" of the European integration process remained inflexible, closed to any reforms (including as regards political enlargement, since the Communities have a specialised, economic nature), while the Community institutions would be flexible, having been subject to amendments made to enable them to function at the level of the entire EU political system.

Since the Community pillar only reflects one dimension of the EU political system, we cannot embrace the theory resulting from the above- mentioned ideas (the Communities, as "bare owner" of political institutions, illustrating a situation of political and legal "superiority" over the system they are included in). The Union has an original legal nature, its own political and legal identity59, which does not allow for the assimilation of this political system to any of the existing models of political organisation. The European Union has a complex legal-political nature60 (its internal architecture is made up of integration organisations, various regional or integration agreements, from the creation of the euro area to the Schengen Area, to association agreements or privileged partnerships with certain areas, for example with ACP States or with overseas departments.

We can state that the EU represents in fact a "system of government without any government"61, aspect ignoring the dynamic nature of the European Commission, considered to be a real supranational government, proof of the fact that certain state influences were adopted in the EU's manner of organisation. It is true that, in the current phase, the Union does not have its own mechanism of allocating competences62, as its powers continue to be of a derivative nature (delegated by states), which is a counter-argument for a potential federal character of the EU.

But, in our opinion, the European Union maintains its original legal-political nature, irrespective of the existence of a legal personality or a "competence of competences" (the state or federalist perspective). Due to the fact that, ever since its emergence, the European Union could not be assimilated to any existing model of political organisation, its political institutions have an original nature merely by virtue of the fact that they belong to and function in the framework of such a political system.

Footnote

1 Marcus HÖRETH, The Trilemma of Legitimacy - Mul- tilevel Governance in the EU and the Problem of Democ- racy, in "ZEI"/Discussion Paper, C11/1998; Zentrum für Europäische Integrationsforschung; Rheinische Friedrich- Wilhelms- Universität Bonn; Germany. Helen WALLACE, William WALLACE (editor), Procesul politic în Uniunea Europeana (Policy-making in the European Union), IVth edition; translated by Genoveva BOLEA; Editura Arc, Chisinau, 2004, pp. 34-35.

2 The European Economic Community

3 The European Coal and Steel Community

4 The European Atomic Energy Community

5 Charles ZORGBIBE, Constructia europeana (Histoire de la construction européenne), translated by Speranta DUMITRU, Editura Trei, Bucuresti, 1998, pp. 343-345.

6 Justice and Home Affairs

7 David MITRANY, promoter of functionalism, makes an interesting remark (in David MITRANY, A Working Peace System; introduction by Hans MORGENTHAU; Quad- rangle Books; Chicago; 1966; p.184), appreciating that the common interest (justifying "an integrationist com- plex such as the EC") is not clearly defined: "in practice, when it was necessary to build up cohesive movements of national loyalty, to disinter and invent all sorts of social, historical or emotional affinities, above all to keep alive the fear of some common external danger". Europe's de- velopment must not be limited to an economic and politi- cal level, but, according to this opinion, it is necessary to also shape "a unity of the cultural and spiritual heritage of Europe" (which does not fit the past of Member States, dominated by conflicts).

8 Thomas DIEZ, The Economic Community Reading of Europe: Its Discursive Nodal Points and Ambiguities to- wards Westphalia; COPRI (Copenhagen Peace Research Institute); Working Papers 6/1998.

9 Some authors qualify the EU as a supranational political organisation, based on states that do not disappear, a politi- cal entity based on a double legitimacy: on the one hand, it is direct and autonomous, drawn from the European citi- zens; on the other, it is derived and indirect, conferred by the Member States. See Olivier DUHAMEL, Igniting the Spirits, European Constitutional Law Review, EuConst, vol. 1, January 2005, p. 13.

10 Although, up until the Lisbon phase, no article from the Treaty on European Union (TEU) makes any explicit reference to the EU's legal personality, according to Article 24/TEU, the EU can conclude international agreements in the field of common foreign and security policy (CFSP). After the entry into force of the Treaty of Lisbon, the EU is expressly granted legal personality (conferred by Arti- cle 46a/TEU), being given, at the same time, the ability to have recourse to all the necessary instruments to take action at international level [see, for instance, Article 7a (2)/TEU; Article 10A (1) and (2)/TEU; the new framework Article 11 (1) and (2); Article 12; Article 13; Article 19 (2) paragraph 3; Article 24; Article 6 (2)/TEU; Article 2B(2)/ TFEU; Article 188J(4)/TFEU; Article 188L/TFEU; Article 188P/TFEU - from the conclusion of treaties, to the right to become member of an international intergovernmental organisation or the right to become a party to an interna- tional convention, up to the ability to be represented before an international jurisdiction]. The extent to which these new opportunities will be put to good use, some authors say, depends on the will of the Member States, which might not be willing to give up their own seats in the IGOs (inter- national intergovernmental organisations) in favour of the European Union (EU). According to Lazar COMANESCU, "Constitutia Europeana si rolul Uniunii Europene ca ac- tor global" (The European Constitution and the European Union's role as global actor), in Revista Româna de Drept Comunitar (Romanian Journal of Community Law), no. 2/2004, pp. 17-18. The Treaty of Lisbon (for example, by Article 188J (4) paragraph 2/TFEU) settles this matter de- pending on the EU's are of competence. Thus, in the field of "humanitarian aid", the conclusion by the EU of an agreement with competent international organisations or with third countries shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.

11 As, according to some authors (Alain Lamassoure), "there is a genuine power exercised at European level, but, in contrast, there is no democratic system for the exercise of the European power, equivalent to the one in force in the Member States" (aspect which the Constitutional Treaty unsuccessfully attempted to remedy). According to Alain LAMASSOURE/PPE, La Convention: Finalité et archi- tecture institutionnelle de l'Union - une étape clé pour une bonne gouvernance; Conférence, débat sur la gouvernance, 11 Juillet 2002, Bruxelles.

12 Some authors speak about "much more supranationally structured institutions" (after the TEU) "endowed with continuously expanding autonomous powers in relation to the Member States", but, at the same time, they notice a "lack of vision concerning Europe's future, form and stra- tegic role; the absence of a political design able to "mo- bilise energies and explain to the EU's citizens the ben- efits of the European construction". According to Romano PRODI, "The European Union - A Difficult but Success- ful Venture", The International Spectator, vol. XXXI, no. 4, October-December 1996; Istituto Affari Internazionali (IAI); Roma.

13 Some authors believe that, by the Treaty of Maastricht itself (!), the European Union "uses the institutions and bodies of the European Communities" in order to perform its tasks, since it does not have any express legal personal- ity (according to Augustin FUEREA, Institutiile Uniunii Europene (Institutions of the European Union), op. cit., p. 32). According to other authors, the single institutional framework is made up, on the one hand, of Community institutions, made available to the other two pillars and, on the other, of the European Council, the only genuine institution "of the EU". According to Roxana MUNTE- ANU, Drept european, evolutii, institutii, ordine juridica (European Law, Developments, Institutions, Legal order), Editura Oscar Print, Bucuresti, 1996, p. 108.

14 Common Foreign and Security Policy.

15 Madalina Virginia ANTONESCU, Institutiile Uniunii Europene în perioada post-Nisa. O perspectiva de drept constitutional (The Institutions of the European Union in the Post-Nice Period. A perspective of Constitutional Law), Editura Cartea Universitara, Bucuresti, 2007, pp. 445-451, 460-475.

16 Madalina Virginia ANTONESCU, Uniunea Europeana, imperiile antice si imperiile medievale. Studiu compara- tive (The European Union, Ancient and Medieval Em- pires. Comparative Study), Editura Lumen, Iasi, 2008, pp. 89-90.

17 The same way as proportionality, subsidiarity is a corol- lary of the principle of conferral of powers to the EU, which was reiterated in the Treaty establishing a Constitution for Europe (Article I-11) and is also included in the Treaty of Lisbon, in its new Article 3b (3) and (4)/TEU (after the failure of the adoption of the European Constitution). Ac- cording to François PRIOLLAUD, David SIRITZKY, La Constitution Européenne, texte et commentaires, La Docu- mentation Française, Paris, 2005, p. 56.

18 The new Article B/TEU, amended by the Treaty of Am- sterdam, stated that "the Union shall set itself the following objectives" (therefore, not the EC will be the ones draw- ing up and achieving the EU's objectives) or refers to the fact that "the objectives of the Union shall be achieved [...] while respecting the principle of subsidiarity as defined in Article 3b of the Treaty establishing the European Com- munity". Accordingly, it is not a case of a "word for word" adoption of Article 3b/TEC (which, naturally, envisages "action by the Community", since we are in the framework of the TEC), but an adjustment of this article to the reality created by the TEU (the emergence of the EU). Therefore, we are merely dealing with a reference to the legal defini- tion of the subsidiarity principle of Article 3b/TEC and not with the fact that only the Community (and not the EU) should comply with these principles through its actions. With the Treaty of Lisbon, "a new EU" is set up, replacing the European Community (but not EURATOM) and suc- ceeds it in its rights [Article 1 (3)/TEU] and has its own objectives [Article 2(6)/TEU].

19 The authors in this field of study (for instance, Alex WARLEIGH, European Union. The Basics, Routledge, London and NY, US, 2004, p. 36) acknowledge that the EU is a political entity, being qualified as a "political system with extended powers, exercised in its own name", which reflects an overcoming of the limits of the intergovern- mental conception of the Union, seen as a "mere general framework", which does not exist concretely neither at legal, nor at political level. But we disagree with the inter- governmental conception, since it ignores the complexity and originality of the EU as a political system endowed with implicit legal personality (at least until the Treaty of Lisbon - for example, Article 2(6)/TEU, Article 46a/TEU amending the Treaty of Lisbon).

20 Starting from this political objective of the EU, the Eu- ropean Commission identified some major directions for the implementation of "good European governance": im- proving "bottom-up" involvement of actors in EU policy shaping and implementation; extending the political and legislative framework, widening the choice of instruments available to the EC in order to respond to new challenges of the European governance; clearer responsibilities for the "refocused" EU institutions, whose political role should be reviewed. According to Commission des Communautés Europeénnes, Rapport de la Commission sur la gouver- nance européenne (Report from the Commission on Euro- pean Governance); Luxemburg; 2003.

21 Defined as "the political regime in which the people expresses its will through elected representatives", a result of the development of medieval institutions ("gatherings" chaired by the monarch, which represented different social interests); during the English Civil War, the first essential amendment of the so-called "representative democracy" was operated, in an attempt to find a Republican alternative to the monarchical system. According to Sergiu TAMAS, Dictionar politic, institutiile democratiei si cultura civica (Dictionary of Politics, Institutions of Democracy and Civ- ic Culture), Editura Academiei Române, Bucuresti, 1993, p. 78.

22 Liesbet HOOGHE, Gary MARKS, Unraveling the Central State. But How? Types of Multi-Level Governance; 87/March 2003; Political Science Series; Institute for Ad- vanced Studies, Vienna.

23 Charles ZORGBIBE, op. cit., pp. 10-11

24 A constant concern of the European Commission, wide- ly illustrated in the various methods of implementing the "good governance" and in the ways "the Union uses the power given by its citizens", according to the Commission of the European Communities, European Governance. A White Paper; Brussels, 25.7.2001; COM (2001) 428 final.

25 In order to achieve this political objective, some Euro- pean leaders believe that drawing up a "European Consti- tution" as a "new, more democratic and more legitimate legislative body", according to Romano PRODI, Presi- dent of the European Commission, Europe: adding value, changing quickly; London School of Economics; London, 19 January 2004; http://europe.eu.int.

26 Also in the Lisbon phase, this treaty expressly refers to the democratic basis of the new political construction ("the new EU"): the Preamble to the TEU; Article 1a/TEU; Arti- cle 6/TEU; Title II (Democratic principles)/TEU amending the Treaty of Lisbon.

27 It is interesting to also mention an opinion accord- ing to which the national identity of the Member States, which must be respected by the Union under the TEU, can be identified "not only in the structures and functions of the Member States, but also in certain values shared by the Union and its Member States"; regarding the nature of these values, there is still a certain controversy in the legal doctrine. See Peter G. XUEREB, Loyalty and Solidarity, European Constitutional Law Review, vol. 1, 2005, p. 18. But the Treaty of Lisbon clearly identifies these common values underlying the setting up of the new EU [Preamble to the TEU; Article 1a/TEU; Article 6(3)/TEU].

28 Augustin FUEREA, Drept comunitar european. Parte generala (European Community Law. General Presenta- tion), Editura All Beck, Bucuresti, 2003, pp. 66-68.

29 Gilles FERRÉOL, (coord.), Dictionarul Uniunii Euro- pene, translated by Iuliana-Cristina Dobos, Polirom, Iasi, 2001, p. 120 (A dictionary of the European Union).

30 Pierre MATHIJSEN, Compendiu de drept European, VIIth edition, translated by Viorica Alexandru, Mihaela Dumitrescu, Editura Club Europe, 2002, p. 15 (A guide to European Union Law).

31 See including the role of the EUA in strengthening and legitimising the European political cooperation. Accord- ing to Clive H. CHURCH, David PHINNEMORE, The Penguin Guide to the European Treaties. From Rome to Maastricht, Amsterdam and beyond, Penguin Books, Eng- land, 2002, pp. 36-37.

32 Alex WARLEIGH, op. cit., p. 36.

33 Iordan Gheorghe BARBULESCU, Uniunea Europeana, aprofundare si extindere, Cartea I - De la Comunitatile Europene la Uniunea Europeana (The European Union, Deepening and Enlargement, Book I - From the Euro- pean Communities to the European Union), Editura Trei, Bucuresti, 2001, pp. 212-213.

34 Augustin FUEREA, Drept comunitar (Community Law), op. cit., p. 81.

35 The Court of Justice of the European Union.

36 John FAIRHURST, Law of the European Union, Pear- son Education Limited, Pearson and Longman, Essex, UK, 2006, pp. 26-27.

37 Augustin FUEREA, Manualul Uniunii Europene (Guide to the European Union), Editura Universul Juridic, Bucuresti, 2006, pp. 64-71.

38 Idem, p. 117; it should be mentioned that, by EU Coun- cil Decision of 4 November 2004, a European Union Civil Service Tribunal is set up, as a new specialised court, in- cluding in its competences the settling of cases involving the European Union civil service; its decisions may be challenged before the Court of First Instance (CFI) and only exceptionally before the Court of Justice of the Euro- pean Communities (CJEC).

39 Jean Marc FAVRET, Droit et pratique de l'Union Eu- ropéenne, Gualino, Paris, 2001, pp. 37-39.

40 Idem, p. 26. Roxana MUNTEANU, op. cit, pp. 70-72.

41 The Treaty of Lisbon sets up de jure a new EU, found- ed on two treaties (the Treaty on European Union and the Treaty on the Functioning of the European Union), where- by the EU replaces and succeeds the European Commu- nity - Article 1(3)/TEU (but EURATOM remains in force, incorporated into the structure of the new entity).

42 According to some authors, CFSP is a common policy of the EU and its Member States, while JHA is first and fore- most a cooperation between the Member States, an opinion based on the criterion related to the extent of involvement of the two types of political actors (the Member States and the EU institutions), according to Roxana MUNTEANU, op. cit., p. 108.

43 François PRIOLLAUD, David SIRITZKY, op. cit., pp. 33-34.

44 Pierre PACTET, Institutions politiques et droit constitu- tionnel, Armand Colin, Dalloz, 2002, avec la collaboration de Ferdinand Melin-Soucramanien, p. 61.

45 Augustin FUEREA, Drept comunitar (Community Law), op. cit., p. 32.

46 As the Treaty establishing the European Economic Community (EEC) signed in 1957 expired, this integration organisation ceases to exist legally on 23 July 2002. The "newly created EU", through effect of Lisbon Treaty, is replacing the European Community, without affecting the existence of EURATOM (as distinct, sectorial organization of integration), that is added to the newly formed political- economical entity, without cease of its juridical personality. See Iordan Gheorghe BARBULESCU, Daniela RAPAN, Dictionar explicativ trilingv al Uniunii Europene (Trilingual dictionary of the European Union), Iasi, Editura Polirom, 2009, pp. 216; 722-725.

47 Raluca MIGA-BESTELIU, Organizatii internationale interguvernamentale (International Intergovernmental Or- ganisations), Editura All Beck, Bucuresti, 2000, pp.16-17.

48 See the analysis of the EU's legal nature and the ar- guments justifying the opinion that the EU is not a "fed- eral state", in Philippe MANIN, Droit constitutionnel de l'Union Européenne, Pédone, Paris, 2004, pp. 66-67. For information on the legal arguments arguing in favour of the EU as a "federal state", see François PRIOLLAUD, David SIRITZKY, op. cit., p. 33.

49 Some authors believe that the European Union does not have the "competence of competences", as it depends on the will of the Member States to establish the legal regime; see Simina TANASESCU, "Despre autoritatea constitutionala a unui tratat European" (On the Constitutional Author- ity of a European Treaty), in Sfera Politicii, nr. 120-121- 122/2006: Uniunea Europeana: structuri si asteptari (The European Union: Structures and Expectations), p. 19; re- garding the constitutional phase, the author believes that Article I-59/the Constitution, which at that time enshrined the Member States' right to unilaterally withdraw from the EU (document taken to a large extent by the Treaty of Lis- bon), in fact gives credit to the idea that the EU does not have "the competence of competences". The Treaty of Lis- bon (which, after its entry into force, establishes the Mem- ber States' right to withdraw from the EU, by Article 49a/ TEU) confirms the opinion cited above.

50 See Augustin FUEREA, Drept comunitar, op. cit., p. 33.

51 This is also true for the UE (see extensively Philippe MANIN, op. cit., p. 69).

52 Also see Ion ANGHEL, Subiectele de drept international (Topics of International Law), Editura Lumina Lex, Bucuresti, 2002, pp. 153-158. The Rome Declaration, for example, speaks about an "apportionment of powers be- tween the Union and its Member States" or "the Union's powers", extended to new areas, according to V. Giscard D'ESTAING, Rome Declaration; Rome, 18 July 2003; The Chairman; The European Convention. See Alain LA- MASSOURE, op. cit. (Conférence, débat de la Gouvern- ance, 11 Juillet 2002).

53 Ion ANGHEL, Subiectele de drept international, Edi- tura Lumina Lex, Bucuresti, 2002, p. 157.

54 Philippe MANIN, op. cit., p. 70.

55 Vivien A. SCHMIDT, "European Federalism and its Encroachments on National Institutions", Publius, The Journal of Federalism, 29 (1), p. 22.

56 Regarding the single institutional framework of the Union, some authors think that only the European Council can be considered "an EU institution", the others being Community institutions (using the criterion of the express legal personality of the Communities), according to Roxa- na MUNTEANU, op. cit., pp. 107-108. Other authors hold that there are "Community institutions and institutions of the Union", without a clear distinction being made between the two "types of institutions" (arguing that "the Commu- nity institutions are common both to the Communities and to the Union, whose institutional framework is not distinct from the Community one"), according to Iordan Gheorghe BARBULESCU, op. cit., p. 120.

57 Augustin FUEREA, Drept comunitar, op. cit., p. 35. According to other authors, the EU does not have its own institutions, the Commission and the Council of Ministers having become common institutions of the EU and the Communities, like the European Parliament and the Eu- ropean Council. See Jean Claude MASCLET, Dès Com- munautés Européennes à l'Union Européenne, in Dubouis, Louis (sous la direction de), L'Union Européenne, Les no- tices de la Documentation Française, Paris, 2004, p. 10. We do not accept that argument (ex ante the Treaty of Lisbon); if we did, we would reduce the Union, as a complex politi- cal system, which included the Communities in its first pil- lar, to a mere "general framework", without its own politi- cal existence, distinct from the Communities, including at institutional level. After the Treaty of Lisbon entered into force in 2009, the Union was granted express legal person- ality and its own single institutional framework (Article 9/ TEU and Article 46a/TEU).

58 Which did happen after the "new EU" was created by the Treaty of Lisbon/2009.

59 François PRIOLLAUD, David SIRITZKY, op. cit., pp. 33-34.

60 Philippe MANIN, op. cit., p. 53. Jean Claude GAUTRON, Droit européen, Dalloz, Paris, 1999, p. 79.

61 Paul HIRST, Grahame THOMPSON, Globalizarea sub semnul întrebarii. Economia internationala si posibilitatile de guvernare (Globalization in question: the international economy and the possibilities of governance), translated by Laura DRAGOMIR, Editura Trei, 2002, p. 322.

62 See Clive H. CHURCH, David PHINNEMORE, op. cit., pp. 12-13.

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