Personality under EU Law: A Conceptual Answer towards the Pluralisation of the EU

• Author: Matthias Ruffert
• Published date: 01 May 2014
• Date: 01 May 2014
• DOI: http://doi.org/10.1111/eulj.12059

Personality under EU Law:

A Conceptual Answer towards the

Pluralisation of the EU

Matthias Ruffert*

Abstract: Although the trend towards pluralisation within the institutional framework of

the EU is somewhat ref‌lected in theoretical efforts, legal scholarship’s answer remains

incomplete. Acknowledging that legal personality is always relative—ie related to a

particular legal system—personality under EU Law should be recognised and developed

as a distinct category. This allows for reconsideration and rearrangement of inter- and

intrapersonal relations in EU Law: inter-institutional agreements can gain f‌irmer legal

ground, the recognition of hierarchical structures within the EU executive branch can

advance the maintenance of the rule of law, legal protection of the Union’s citizens shall

be advanced, and options as well as limits to privatising organisation at the EU level

shall be formulated. On the whole, methodological self-ref‌lection along these lines is

bound to lead to a valuable contribution of legal research in times of EU crisis.

I Pluralisation as a Challenge for EU Legal Scholarship

Pluralisation—the proliferation of institutions—is a phenomenon at EU level which is

at the same time widely recognised and under-conceptualised. While one of its

aspects, ‘agencif‌ication’, has attracted European law scholars’ broad attention with

impressive insights,1conceptual gaps remain, and as far as all other institutional

developments are concerned, doctrinal ref‌lection still mainly addresses the question

whether an institution is provided for in the Treaties, in secondary legislation or on

another legal basis.2As pluralisation appears to be somewhat ‘booming’ following the

political activity to combat the State debt crisis—in practice and in proposals relating

to the political theory of integration—the need for its conceptualisation in legal

scholarship is ever increasing.

Against this necessity, the present article starts from the methodological premise

that it is the main task of legal scholarship to provide models, instruments and tools

* Dr. iur., Professor for Public Law, European Law and Public International Law, Friedrich-Schiller-

Universität Jena, Germany, holder of a Jean Monnet Chair for European Integration. I am very

grateful towards my assistant Dr. Enrico Peuker as well as towards the anonymous reviewers of ELJ

for their valuable comments, and towards Christopher P. Hunt for his linguistic support.

1In fact, both terms are used by H. Hofmann and A. Morini, ‘Constitutional Aspects of the Pluralisation

of the EU Executive through “Agencif‌ication”’, (2012) 37 European Law Review 419–443.

2cf infra IV A.

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European Law Journal, Vol. 20, No. 3, May 2014, pp. 346–367.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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to be applied within the political decision making, future-shaping process and its

analysis. As lawyers rarely if ever know, as lawyers, what are the right decisions for

the future, there is a tendency to either recur to knowledge and methodology from

other sciences or to adhere to one’s own political convictions. Whereas the former

might conceal the problem-solving scope of legal scholarship as such, though the

integration of non-juridical knowledge is of course most welcome, the latter often

does nothing more but present a hidden, mostly pro-European bias.3

Following that methodological approach, this article will show that the macro-

perspective on ideas of constitutionalism and federalism hitherto adopted, notwith-

standing its continuing impact, has inherent limits and must be complemented by a

micro-perspective concentrating on concrete models, instruments and tools; the core

institutional model to be developed from an analysis of the jurisdictions of the

Member States and from Public International Law being the notion of personality

which should be introduced and ref‌ined within the EU’s institutional framework (cf

below III). The introduction of the concept of personality into EU institutional law

will clear the way to differentiate between institutions with and without legal person-

ality, to re-analyse intra- and interpersonal relationships, to develop hierarchical,

supervisory structures within the institutional framework of the EU and to draw

consequences for the relationship between the EU and individuals concerning the

issues of judicial review and liability (cf below IV). But before all this can be under-

taken, the article will describe in which way and according to which political ideas the

institutional framework is ‘pluralised’ (cf now II).

II Pluralisation: Plague or Golden Path?

A Pluralisation as Organisational Proliferation

Although the rise of pluralisation is most apparent in the context of the current

crisis, it is by no means limited to it but has been a quality of the integration process

ever since its inception. We only have to remember the long tradition of

organisational plurality that was initiated with the creation of three Communities in

the 1950s (European Coal and Steel Community (ECSC), European Economic

Community (EEC), European Atomic Energy Community (EURATOM), the

European Defence Community, (EDC) and therefore the European Political

Community (EPC) having failed) which only belatedly unif‌ied their institutions4or

the dichotomy between EU and EC which created complex legal relationships

between the institutions of European integration in the roughly 20 years preceding

the ratif‌ication and entry into force of the Treaty of Lisbon in December 2009.5As

a matter of fact, that Treaty was far from putting an end to the continuous

discussion about the institutional shape of the Union.6What is more, since then

3The bias for advancing European integration is criticised by G. Majone, Europe as the Would-Be World

Power (CUP, 2009), at 3–4 (with strong wording 3: ‘. . . the idea that European integration may have

costs as well as benef‌its . . . is still foreign to many academic observers of the EU.’)

4General outlines to be found in: H. Schulz-Forberg and B. Stråth, The Political History of European

Integration: The Hypocrisy of Democracy-through-Market (Routledge, 2010), at 21 et seq; R. Schütze,

European Constitutional Law (CUP, 2012), at 7–46.

5OJ 2010 L 83/1.

6The problem would be further aggravated if we included the interdependence of the EU institutions with

national institutions—a perspective that is omitted here for the sake of clarity.

May 2014 Personality under EU Law

347

© 2013 John Wiley & Sons Ltd.