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The Intergovernmental Pillars Of The European Union |
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reviewed by Burcu Demir |
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Author: Eileen Denza |
ISBN:
0-19-829935-4 |
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Publisher:
Oxford University Press |
Page:
387 |
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Type:
Hardcover |
Price:
$220 |
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Place of Publication:
New York |
Published in:
2002 |
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Review: |
Eileen Denza who is a former Legal Counsellor to the Foreign and Commonwealth Office, analyzes the Three Pillar System of the European Union. First, she defines the concept of this supranational and intergovernmental union of 27 states and emphasizes that it is not an international organization having legal personality under the law of its Member States. Furthermore; it has no property or financial resources which belong to it while The European Communities are international organizations in accept sense. Because The European Community ( originally the European Economic Community), the European Atomic Energy Community have international legal personality, so they have rights and responsibilities under international law and they also have defined institutions and financial resources. Because of these reasons, forms of cooperation outside the three Communities are essential for the EU. As a result; the three pillars system was intended. By this way; the Union has input into the more politically sensitive and legally complex areas.
It is important to mention that she does not only make an examination of the intergovernmental pillars, but also states main similarities and differences between public international law and European Community law. For instance; both public international law and European Community law are law between sovereign States. Moreover; the principal sources of public international law, as with Community law, are treaties together with custom.
On the other hand; there is a near monopoly of the European Commission to propose legislation. There is no such a channel for the preparation of new law in other international institutional contexts. Furthermore; under the constitution of most democratic States, the ratification of, or access to international agreements requires the approval of the national parliament. The Community treaties also require ratification by national parliaments under constitutional procedures. To give a specific example; the membership of the EU but subordinate legislation by the Council or European Commission is different. Under the Community Treaties, once the Council has adopted a regulation, directive or decision, the national parliaments have no discretion over the substance of the legal obligations to be carried out.
Denza points out the fact that the second and the third pillars are discussed more than the well-documented first pillar. The main reasons of this situation is that they were set to give flexibility to the integration and reflects a different level of the Union. Actually, the intergovernmental pillars are not a legal innovation. They were established and continue to function because they were accepted by the majority of the Member States, parliaments and people of the EU. They are not well understood even by Community lawyers.
Why and how did the members of the EU decide to establish the intergovernmental pillars? If they set up a single foreign policy this would mean loosing of the power of autonomous action. Justice and home affairs were areas of national diversity and political sensitivity too. The Member States did not wish to give the European Commission the only right of initiation with the publicity for negotiations, or to give the European Court of Justice general judicial power in these areas. So, they discovered a new solution; to set up new structures, the Common Foreign and Security Policy and Co-operation in Justice and Home Affairs, which would operate using the methods and procedures of public international law.
The second or Common Foreign and Security Policy (CFSP) pillar concerns foreign policy and military matters. European Security and Defence Policy (ESDP) is considered a major element of the CFSP today. It was initiated by provisions of the Treaty of Amsterdam which stipulated the progressive framing of a common security and defence policy that could deal with humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking. These are the so-called Petersberg tasks.
In the process of analyzing the second pillar, it is necessary to know what the foreign and security relations of a single sovereign State is. These kinds of relations are not a matter of attitudes, expressions of opinion and intent. They are supported by powerful instruments. The State by its nature has international legal personality; it may conclude treaties, become a member of international organizations, send and receive diplomatic and consular missions etc. But EU is not a sovereign State. It has no general or inherent power for conducting its own external relations. Furthermore; it was not given international legal personality or treaty-making power by the Maastricht Treaty and did not maintain diplomatic and consular relations. The EC sends and receive delegations with powers of representation and negotiation limited to the competence of the three Communities. On foreign policy matters outside these areas the Member States continue to maintain separate diplomatic and consular representation. The EU also was not given its own financial resources by Maastricht Treaty. To finance actions agreed under its common policy it had to borrow either from the budget of the EC or from the Member States and the Council could decide to charge it to the European Communities budget, but only by unanimous vote. From this point of view; Denza states that Member States wanted to design something which is related with foreign policy but its powers are limited.
Member States also wished to have cooperative procedures on justice and home affairs because of a variety of reasons. The first reason was that they need common executive or legislative action against external immigrants, terrorists, drug smugglers or international criminals. In the criminal justice field there are differences in national laws.
Secondly, cooperation among law enforces was not seen as a law making process. Rather it was collaboration among likeminded enforcers to exchange information and compare methods in order to strengthen barriers against common enemies. National immigration policies and national criminal laws were guarded and the objective was informal exchange of information and practical cooperation to make them more effective, not the construction of common policies. Drawing up international conventions on transfer of prisoners and formal mutual assistance in the conduct of national criminal trials was generally regarded as the province of the Council of Europe.
Thirdly; while European Political Cooperation seek to attain some form of common European identity and articulated common approach, there was not similar objective for the process of cooperation in law enforcement.
“Justice and Home Affairs” pillar was established by the Treaty of Maastricht; subsequently the Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum, and judicial co-operation to the integrated first (European Community) pillar. The term Justice and Home Affairs now covers these integrated fields as well as the intergovernmental third pillar.
According to Denza; justice and Home Affairs Cooperation contains some titles which can be defined as successful points. For instance; asylum policy. For Member States there were not difficulties in the process of reaching agreement on restrictive measures. On the other hand; it is clear that Member States cling to their national autonomy over immigration law and policy.
At this point; Denza emphasizes that in the intergovernmental pillar European Court of Justice (ECJ) and European Parliament (EP) have limited powers. Because the Member States prefer to say the last word in sensitive areas.
On the other hand; there are important differences between two intergovernmental pillars. First of all, the CFSP suggested the formation of a comprehensive policy similar to the common policies of the EC which may replace the foreign policies of the Member States. By contrast; Cooperation in the Fields of Justice and Home Affairs suggested less ambitious objective of cooperation in making effective national policies which would remain essentially unchanged.
Moreover; for the Second Pillar it was clear that both common positions and joint actions would be binding under international law. On the contrary; for the Third Pillar it was not clear that joint ( or common) positions and joint actions on justice and home affairs were legally binding or not.
Lastly; Denza points out the cross-pillar action. While policy-making under the Second and the Third Pillars has developed since the entry into force of the Treaty of Maastricht, the cross-pillar aspects have become more apparent, and the Council and the Commission have become more practiced at dealing with them. It has been obvious that strategic decisions taken under the CFSP would require implementing action under EC external commercial powers or development aid powers to be effective. Joint actions and some of the common positions require financial resources for implementation, and since the Second Pillar lacks its own financial resources, money has to be found from the budget of the EC using Community procedures. The developments in the structure of the EU have all tended to make it easier for the CFSP to borrow powers and money from the First and from the Third Pillar rather than to depend on the Member States.
A variety of areas which are related with all three pillars can be listed. For example; within the First Pillar there appears opening up the banking sectors to EU participation and promoting approximation of customs legislation. Within the Second Pillar there appear encouraging administrative reforms and an independent judiciary, as well as supporting Russian efforts to meet international human rights commitments. Within the Third Pillar is cooperation in the fight against organized crime, money laundering, and illicit traffic in human beings.
It may be early to make judgments on the effectiveness of many of the actions described, but on the evidence of recent instruments, the institutions are becoming familiar with cross-pillar techniques and are now able to use their various powers in a consistent and convincing manner.
As a result; it is necessary to mention that the Member States of the EU do want to face with the international crisis together. Because of this reason, they design instruments which help them to cooperate in the areas of foreign policy, security, justice and home affairs. By contrast, they do not prefer loosing their own national authorities which are related with sensitive interests. This conflict can be considerate as the center of the discussion of EU.
Eileen DENZA analyzes that point not only from the perspective of law. She also makes in-depth analyzes about the political reasons of making law process. After defining the instruments, she makes a historical review of them. Then, she examines the complex structures.
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about book: |
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The Three Pillars system of the European Union was intended to give flexibility to, and ultimately to extend the area over which the EU could exert its influence. Each of the pillars reflects a different level of integration and centralization, with the result that although the EU can't legislate in all areas, it can still have input into the more politically sensitive and complex policy areas. This analytical examination of the combination of public international law methods and Community methods at work in the EU is essential reading for all those with an interest in the future development of the EU. |
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