See EU in court

Date: 05/06/1997

Proposals currently being considered by the Intergovernmental Conference for the Amsterdam review suggest that the EU should supersede the EC, and that the Union should be granted extensive legal personality.

In terms of capitalising on the impetus of the Maastricht Treaty and giving effect to the principles of the Union, this would not be before time.

Legal personality denotes that an international organisation has the capacity to enter into agreements with other legal entities and that it can acquire rights and have obligations.

The question of the legal personality of an international organisation is a highly technical one, yet despite its complexity it remains a fundamental issue, as it simply means that such a body can exist in law.

An international organisation must possess this basic characteristic if it is to act within the international community.

Such legal personality is not reliant on an express statement by the constituent members, but is the result of the actual ability of an organisation to bind and be bound.

Most famously, the United Nations was deemed to have legal personality despite the fact that its charter did not specifically grant it. The attribution of legal personality is a standard concept in the law of international organisations and the European Community, as one such organisation, has extensive legal personality.

The European Union, on the other hand, has no legal personality.

This fact should, in theory at least, be of no consequence. The governments of the member states have decided that external Union objectives should be achieved by a system of agreements between the member states, placed outside the ambit of the Community.

The common foreign and security policy (CFSP) and moves towards a common approach to justice and home affairs (JHA) introduced by the Maastricht Treaty are intergovernmental agreements, which do not require a legal personality.

The EU and the EC are therefore distinct legal entities. Certainly, the experience of the last few years has demonstrated that member states are not ready for CFSP or JHA cooperation to be communitarised, ie placed within the current EC framework.

The primary objectives of the Union are to assert the Union's identity on the international scene; to strengthen internal social and economic cohesion amongst its member states; and to reinforce the protection of the rights and interests of nationals of the member states.

The fact that the EU has no legal personality creates difficulties because, if these express aims are to be fulfilled, legal personality is required.

What the Maastricht Treaty essentially established was a platform for intergovernmental agreements which are not allowed to have the necessary characteristics to create a separate international organisation. Despite this,

the treaty gives the distinct impression that a new organisation has been created.

It is for these reasons that both the international community and EU citizens themselves can be forgiven for believing the Union to be an international organisation.

This confusion has been highlighted by the current argument between the European Ombudsman and the Council of Ministers over whether citizens have the right to see the minutes of a meeting of justice and home affairs ministers.

Access to documents for Council of Ministers' meetings in areas such as agriculture is possible, because they fall under the EC's competence. But when the Council of Ministers meets under the justice and home affairs banner, it is no longer an EC institution but an intergovernmental meeting and, in theory, there is no public right of access to its papers.

There is a marked difference between what EU citizens perceive they can gain from the Union and what it can, in fact, deliver.

EU citizens are entitled to believe that the Union is a coherent whole, providing internal and external benefits. After all, EU citizenship is enshrined in the Maastricht Treaty. In fact, citizenship of the Union is governed by the EC Treaty.

Matters are not helped when EC institutions refer to themselves informally as EU institutions, or when actions under the CFSP or JHA are published in the Official Journal of the European Communities, or even when third countries change the names of their missions to the EC into missions to the EU.

In international relations, confusion creates very real problems. Lack of legal personality prevents the EU from taking part in international fora, such as the UN. The issue of the representation of the Union in international fora has caused a good deal of embarrassment, at a time when there is an increasing need for a single EU figurehead.

Most fundamentally, the Union cannot enter into international agreements or act on the international scene in any way which binds it. This is an odd position to be in when the EU is increasingly required to take a role on the world-wide stage.

Without legal personality, it cannot move with any strength of purpose or with rapidity or effectiveness. Potential action is bogged down by the confusion as to which organ can function in the name of the Union or whether the EU is able to act at all. Policies cannot be vigorously pursued and the institutions cannot take firm initiatives.

In terms of judicial protection, the lack of legal personality causes real concern as there is no independent judicial authority which can scrutinise steps taken under the CFSP or the JHA.

The Court of Justice of the EC has no power to review such acts, or to provide a uniform interpretation of those sections of the treaty. The Council of the European Union is the only organ which can do so. This goes against the fundamental democratic principle that the courts provide checks and balances to the exercise of political power.

The question of the legal personality of the EU therefore goes to the heart of the direction which European integration is to take. It is not a revolutionary concept. However, what is questionable is whether it is the right moment for the EU to take over the EC.

The difficulties in creating a viable CFSP or JHA suggest that legal personality in specific areas is called for to allow the Union to go forward, react to international problems and have a strong presence on the world stage.

It may be preferable to allow these areas to develop their own impetus before communitarising them and placing them outside the control of the individual member states.

Therefore, the establishment of distinct legal personality for certain types of EU activities would enable the Union to act in accordance with the competences in each 'pillar' and within the scope of the powers laid down, without contaminating the EC pillar.

What is now needed is a definitive statement to resolve the confusion resulting from the political compromise of the Maastricht negotiations, by clarifying the position of the EU's ability to fulfil its objectives.

In the 1950s, when it was recognised that the birth of the EC created something novel in the context of international organisations, there was still a conscious decision to subject that body to the rule of law.

This principle should be followed, despite the fact that the establishment of the EU does not follow the same logic. Nothing can prevent legal consequences flowing from the creation of the Union, and it must be subjected to a rule of law if it is to benefit its citizens.

Mathew Heim is an English barrister of Lincoln's Inn, London, and Honorary Research Fellow at the Centre of European Studies at Exeter University.