The European Union and the European Community are two distinct legal entities. The relationship between the EC and the EU is likely to remain far from well-defined. In this commentary, Christina Eckes, a lecturer at the University of Surrey and an expert on European Union law, analyzes the relationship between the European Community and the European Union and the overlap and interaction between their laws.
Ms. Eckes writes: The common distinction between supranational and intergovernmental procedures results from the fact that the decision-making procedures of the Second and Third Pillars (EU) allow an individual Member State, through the dominant role of the Council, a higher degree of influence and control over EU law than over EC law. However, the Member States are limited to exercising their influence within the EU institutions. Pursuant to different mechanisms of decision-making, the Member States collectively form the opinion of the Council both as an institution of the EU and as an institution of the EC. In both entities, the Council is the most powerful institution. It acts separately from the individual Member States and even from the Member States’ acting collectively. Indeed, the very same persons at the same meetings take decisions in the Council for all three different pillars. At the officials’ level, there is no division at all. The COREPER prepares all Council meetings and decisions, including those related to the General Affairs Council and CFSP; the Secretariat of the Council serves the institution exercising its different tasks. Furthermore, the mode of operation is, broadly speaking, the same across all three pillars, and the decision-making methods are overlapping. The CFSP has some supranational features. For example, CFSP decisions are, as a rule, charged to the Community budget, over which the European Parliament has considerable control, and, in the Community, some areas remain intergovernmental.
Notwithstanding the differences between the EU and the EC, and notwithstanding that the Member States retain more control over EU law, as a matter of principle, Member States do not relate to the EU any differently than they relate to the EC. Both entities are not only legal persons in their external actions under public international law, but also internally in the relationship with their Member States. Pursuant to Article 48 TEU, states can only be members of both the EU and the EC at the same time.
In view of the uniform institutional structure of the EU and in view of the similarities of the relationship between the EC and the EU with the Member States, the common distinction between “supranational” and “intergovernmental” is misleading in that it gives the false impression that the two entities are fundamentally different. [footnotes omitted]