Edited by Samo Bardutzky and Elaine Fahey
Chapter 10: The EU as an international person between functionalism and constitutionalism
As with any dichotomous relations; the distinction between objects and subjects of law can be seen as a purely reductionist exercise. Any legal system enshrines much more nuance in the way it approaches its objects and subjects than a dual epistemological ways of thinking. When it comes to reflecting on the European Union (EU) as an international subject the nuances and perspectives become even more relevant. Unlike states that just exist, the existence of the EU, as with any other International Organizations (IO), depends on the pursuit of its objectives conferred by the states that created it. In this regard, it is often mentioned that the EU has an incomplete legal personality inasmuch as, first, it is conferred by the Member States, and second, it is limited by those powers conferred upon it by them. The discussion of the EU as subject takes a very interesting focus; this contribution examines how the limited or functional nature of the EU continues to play a fundamental role in its conceptualization as a subject. After briefly dealing with how international law deals with its subjects by assigning them human-like feature (Section 2), this chapter moves to provide an overview of how functionalist theories continue play a fundamental role in our understanding of the EU as subject (Section 3). The chapter identifies a general tension between the functional nature of the EU and its Member States’ quest for control over the EU which tends to disregard other aspects of the EU´s actions as subject. Furthermore, most of the attempts to overcome the EU’s functionalist theories have not been as successful as could have been expected both internally (Section 4) and externally (Section 5). Keywords: European Union, International Legal Personality, International Institutional Law, EU External Relations Law, Functionalism, Constitutionalism
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