Anne M.McNaughton, Institutional Competence and the Common Foreign and Security Policy of the European Union (January 4, 2016). In Hitoshi Nasu and Kim Rubenstein (eds), Legal Perspectives on Security Institutions, Cambridge: Cambridge University Press (2015), pp. 73-94; ANU College of Law Research Paper No. 16-18. Available at SSRN
The European Union (EU) is a unique legal system. This is so notwithstanding the fact that the comment, indeed perhaps a criticism, has been made that lawyers tend to categorise the EU as a sui generis legal system ‘without further explanation’. In the case of the EU, we see an intriguing model of security regulation positioned, as the title of this series collection states, at the intersection of international and public law. The legislative measures of the EU are embedded directly (in the case of regulations), or indirectly (in the case of directives), in the legal systems of its Member States. Jurisprudentially, the preliminary ruling mechanism, and the doctrines of supremacy and direct effect, combine to embed the rulings of the Court of Justice of the European Union in the legal systems of the Member States. By virtue of this unique legal structure, therefore, the Member States’ national and regional policies are synthesised into a unique form of regulation that, to use a (by now) rather clichéd term, lies ‘beyond the state’. In other words, this form of regulation is one developed and administered, not by states exercising unfettered sovereignty either unilaterally or in the context of a multilateral organisation, but rather by states exercising more limited sovereignty, together with the EU institutions to which those states have transferred part of their sovereignty. Acting together, the Member States and the EU jointly exercise a ‘blended’ sovereignty.