日本EU学会年報
Online ISSN : 1884-2739
Print ISSN : 1884-3123
ISSN-L : 1884-3123
The EU as a Plural Constitutional Order: An approach to the Constitutional Treaty
中村 民雄
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ジャーナル フリー

2005 年 2005 巻 25 号 p. 22-54,275

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The present paper argues that the EU is a new type of non-state polity in which the Member State constitutional order and the Union constitutional order compete as well as complement each other. The paper first categorises four main approaches to the EU polity analysis: State Sovereignty Approach, Super-State Approach, Functional State Approach and Non-State Polity Approach. Then the paper discusses various legal aspects of the Constitutional Treaty to analyse which of the four approach best captures the unique legal features of the EU as well as the political practices that have been taken so far. In brief, State Sovereignty Approach captures well the Member States' ultimate EU polity making power, but fails to recognize the on-going polity making by other fully entitled actors including the European Parliament. Super-State Approach does not correspond to the legal settings that the Constitutional Treaty stipulates, nor does it correspond to the political reality of current Europe: there seems no Member State or majority of Union citizen that want a European level nation-state. Functional State Approach, on the other hand, captures well the EU's functional similarity to a state. However that approach also faces the inconsistency between the legal provisions of the Constitutional Treaty and the functional reality: there is no formal suggestion or stipulation in the Constitutional Treaty that the EU would supersede the Member States to form a single state (with or without creating a “nation” at European level). In the end, therefore, the current and the future EU under the Constitutional Treaty are at best captured as a non-state polity at European level. However, it is the present paper's contention that the legal analysis of this polity suggests that the EU legal order is not a unitary legal order, but is consisted of two different kinds of constitutional orders: Union's and the Member States'. The Member States' constitutional order still construct a nation-state polity based on “sovereignty” concept, whereas the Union's constitutional order seeks to build a non-state polity without relying on “sovereignty” concept.
These heterogeneous constitutional orders complement as well as compete to create new legal rules and concepts that suit this new type of mixed polity as a whole.

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© The European Union Studies Association - Japan
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