The International Legal Personality of the European Community and the European Union

• Date: 01 January 2007

The International Legal Personality

of the European Community and

the European Union1

DR VINCENT J.G. POWER*

Introduction

This paper examines the fascinating issue of the international legal personality2

of both the European Community (“EC”) and the European Union (“EU”).3

This topic has long been of interest but it is now of even greater political

and practical importance. Over the last thirty years, the EC has been an

international legal person operating on the international plane in, for

example, global trade and commercial issues such as the General Agreement

on Tariffs and Trade (“GATT”) but now the EU is playing a greater role in

political, military and related diplomatic issues around the world.4It is

therefore both opportune and necessary to consider the issue and its

ramif‌ications.5

*Dr. Vincent J.G. Power B.C.L. (N.U.I.), LL.M. (Camb.), Ph.D. (Camb.), Solicitor and

Partner, A&L Goodbody.

1This is an amended version of a guest lecture, delivered on 20 September 2007, at the

Dalhousie Law School in Canada given as part of Dalhousie’s European Union

Centre of Excellence’s Visiting Professorship of EU Law. The author was Visiting

Professor of European Union Law at Dalhousie University.

2This paper is concerned with international legal personality (ie legal personality for

the purposes of public international law) only; it neither seeks to consider legal

personality in the sense of domestic or municipal law nor does it deal with the

broader issue of the external relations of the EC and the EU which is an enormous

topic in its own right (see note 3 below). The terms “international legal person” and

“subject of international law” are used interchangeably in this area (see Mosler,

“Subjects of International Law”, Encyclopaedia of Public International Law (1984)

at 443) and are also used interchangeably in this paper.

3On the topic of EC and EU external relations law, see, for example, Eeckhout,

External Relations of the European Union (OUP, 2004); McCloed, Hendry & Hyett,

The External Relations Law of the European Communities (OUP, 1997); Lavranos,

Legal Interaction between Decisions of International Organizations and European

Law (Europa, 2004); and McGoldrick, International Relations Law of the European

Union (Longman, 1997). See also Leal-Arcas, “EU Legal Personality in Foreign

Policy?” (2006) 24 Boston University International Law Journal 165.

4On the role of the EU in the world, see, inter alia, Kagan, Of Paradise and Power:

America and Europe in the New World Order (Alfred Knopf, 2003).

5Given the enormity of the topic, this paper is naturally selective and does not spend

too much time considering the various opinions of the European Court of Justice on

Concept of Legal Personality

International legal personality has been def‌ined in different ways over time.6

In essence, it is the ability to enter into legally binding relations with States

and other international legal persons as well as to sue and be sued on the

international plane. An entity with legal personality for the purposes of

international law has rights and duties (ie privileges and responsibilities)

under public international law.

It is clear, and long accepted, that States have such personality7but it has

not always been accepted that international organisations (such as the EC)

or international phenomena (such as the EU) had such personality. It is now

universally accepted, however, that in certain (but not all) circumstances,

international organisations may have such international legal personality.

The question that this paper seeks to address is the nature of the legal

personality, if any, of the EC and the EU but, f‌irst, it is useful to consider the

broader question of the legal personality of international organisations in

general.

The Legal Personality of International Organisations

The prevailing view in public international law, at least until the early part

of the twentieth century, was that the State was essentially the only entity

with legal standing as far as public international law was concerned. Such

international organisations or arrangements as they were, such as the

Zollverein (the old German Customs Union) or the BLEU (the economic

union between Belgium, Luxembourg and the Netherlands) had their

international relations handled by one of the States who were members

(ie Germany and Belgium respectively) rather than the “international

organisations” themselves because, it was believed, that these organisations

lacked international capacity. In domestic law terms, it was as if these

“legally incompetent” or “legally anonymous” entities acted through the

“best friend” of a State which did have legal personality.

the competence of the EC to conclude various agreements (eg Opinion 2/92 regarding

the competence of the Community to participate in the Third Revised Decision of the

OECD on national treatment [1995] ECR I–525).

6On the way in which views can change over time, see note 7 below.

7It is noteworthy that views can change. For example, L.F.L. Oppenheim believed

(International Law, vol. 1 (1905), at pp 148–149) that China, Korea, Persia, Siam and

Tibet were members of the Family of Nations for some purposes, but were not

international legal persons with the same position as “Christian States”. He was not

alone, for example, it was written in regard to the Japanese, “if they continue their

present rate of progress for another twenty years they may well become entitled to

plenary political recognition” (Lorimer, Institutes of the Law of Nations, vol. 1

(1883), at pp 101–103). Nowadays, all States are regarded as having international

legal personality.

144 VINCENT JG POWER