И.В. Яковюк









В статье анализируются теоретические и практические проблемы построения институционального механизма Европейского Союза. Акцентируется внимание на том, что организация власти в ЕС построена на сочетании элементов наднациональной и межправительственной модели, в следствии чего механизм «сдержек и противовесов» по своему содержанию отличен от механизма, используемого на национальном уровне. Аргументируется вывод, согласно которому главная особенность институционального механизма ЕС состоит в достижении баланса между наднациональным и национальным уровнями власти на основе принципов организации и функционирования ЕС.

Ключевые слова:

Европейский Союз, наднациональная власть, институциональный механизм, принципы организации и функционирования ЕС

I.V. Yakoviuk



The article is focused on theoretical and practical issues of institutional mechanism of the European Union. The author emphasizes that EU authority system is based on combination of the elements of supranational and intergovernmental models. As a result "checks and balances" mechanism of EU is, by its substance, different to the one used on the national level. The author argues an opinion that key peculiarity of the EU institutional mechanism is ensuring balance between supranational and national authorities on the principles of EU organization and functioning.

Key words:

European Union, supranational authority, institutional mechanism, EU organization and functioning principles

European Union is an integrative association of new quality and with its own philosophy and logics of development. Member states managed to develop principles that ensure balance between all-European and national interests and to create a unique authority mechanism, which is difficult to explain based on the existing forms of organization of authority. Since the time of establishment the European Communities have always been in focus of scholars. However, until the Communities represented, to some extent, the geopolitical tendencies existing before the Communities had been created, discussions about their legal nature were no sharp and the conclusions made were not controversial. In the late 1980s the process of Euro-

pean integration was forced and embraced not only economical but also social, cultural and, what is more important, political sphere. As a result of this the structure of the association becomes less clear and at the same time more centralized and bureaucratized.

With respect to identification of the EU there are several opinions. Large group of scholars believes that EU shall be referred to some type of international intergovernmental organization [28, p. 56]. Another group characterizes EU as a supranational organization [13] or a federative establishment of specific nature [15; 16; 17; 18]. In addition, European Union sometimes is compared to a confederation [26, p. 207] or organization sui generis [24, p. 190]. Nowadays, more and more often scholars tend to indicate that imperial principles are used in formation of the institutional mechanism of the Union [29; 12]. Such a variety of views is entailed by the fact that the European Union is permanently looking for an optimal model of organization of authority, which is chosen by the member states based on the comprehensive and perspective evaluation of gains and losses of economical, political and social character. From this viewpoint the answers to several questions are crucial for development of the European Union as a supranational association. The said questions include: whether a government and society are ready to share a part of sovereignty in favor of supranational structure and what sovereign rights they are ready to delegate thereto; whether the effective control over the integrative association exists and whether the national governments are able to prevent unauthorized extension of the authority of the supranational structure; whether the member states keep the right of free withdrawal from the association; whether they have the right of veto with respect to the decisions of the Union, specifically regarding its extension; whether the unanimous vote is prescribed for the principal issues. In case of negative response to all or the majority of the questions, an international organization is to be chosen as a form of integrative development. Therefore, depending on the declared purpose, process of integration can be implemented in different forms. The key factor influencing the choice of the form of integration and its institutional mechanism is attitude of a state to the issues of implementation of state sovereignty [14].

Political and legal cooperation between the institutions of the European Union and the authorities of the member states clearly indicate going out of institutional mechanism that is appropriate to traditional international organizations. Active interaction between supranational and national levels of authorities, as well as effective system of mutual control in the EU makes it look like a federative state. In this organizational and legal area (EU institutions - authorities of member states - EU institutions) is carried out historical experiment on development of the most efficient model of

political and legal relations between European nations and states. Member states resorted to a decisive step, when vested the EU institutions with the authority allowing it to perform and make decisions binding on the territories of the member states without prior internal approvals [9, p. 149-151].

When speaking about the European Union as a supranational organization it ought to be mentioned that it has also features of federative establishment. Considering that, V.I. Salo suggests to treat the Union as a federation of sovereign states that does not exclude its characteristics of a supranational organization [10, p. 189]. To consider federalism as a principle of political and legal development of the EU it does not matter whether there is an agreement on federation or relevant provision in the constituent treaties. Analysis of the EU characteristics allows to conclude that the Union is of federative nature. These characteristics evidence that political and legal system of the EU is grounded and develops in compliance with the principles of federalism.

Controversial attitude of the European elite representatives to the integration process and particularly to the method of decision making led to creation in the EU of complex mechanism of authority implementation that combines national, international and supranational mechanisms of government. This resulted from several compromises between adherents and opponents of intensification of the integration process, which from time to time caused weakening of supranational grounds in organization of the EU institutional mechanism (e.g. Luxembourg Compromise that authorized member states to veto the unfavorable decisions of the EU Council) or strengthening thereof (e.g. introduction of direct and general elections to the European Parliament and extension of its authority in lawmaking and budgeting; introduction of political responsibility of the Commission before the European Parliament; gradual widening of the area of making decisions by the Council with qualified majority of votes; introduction of the EU citizenship). At the present stage of integration one can notice attempts to launch supranational mechanism as an independent "drive belt" that is confirmed by the initiatives on formation of banking and customs union with a view to proceed subsequently with the budget union, as well as discussions on introduction of economic government, etc. This gives rise to absolutely new quality of relations between the EU institutions and national governments. It appears that institutional mechanism with supranational principles and methods of governing, created by the member states, influences the policy of these states following the interests of organization of an upper level, which in a specific moment of history may not correspond to the current national interests. However, in the perspective a match need to be found, otherwise there will be no sense in participating in such an association [6, p. 11-12]. In case the mentioned and other reforms are imple-

mented and the Union receives the authorities that are deemed to be a prerogative of the sovereign states (e.g. collection of taxes, budgeting, enforcement, etc.) the national governments may seize to be that level of authority, which makes the final political decisions regarding directions of social development, and may eventually be replaced with EU institutions.

European Union as a complex supranational organization of authority requires reasonable steps of supranational and international levels of government to ensure stability and effectiveness of operation of the association being created. During the process of designing such an association special attention must be paid to the general principles of organization and operation, which determine peculiarities of relations between the national governments and institutions of the EU. These principles are aimed, on one hand, to fix and protect the grounds of the association being created, to ensure its constant and efficient functioning, and, on the other hand, to keep sovereignty of the member states. Among these principles are: loyal cooperation, delegation of authority, legality, subsidiarity and proportionality. Understanding of the listed principles is not disputed among the scholars.

Loyal cooperation principle is reasonably treated as one of the fundamental principles of the Union. It influences upon all the spheres associated with implementation of the internal functions of a state, as well as contributes to establishment of community relations in the European Union. Development of loyal cooperation principle was caused by the fact that in the EU national governments play key role in decision-making and subsequent implementation of the decisions made. European Commission does not have its own agencies in the territory of the member states to ensure implementation of the decisions made by the Union's institutions. Therefore, success of joint policy is very much dependent on the loyalty of the national governments to the decisions of the supranational authorities and on the cooperation between the member states and efficiency of their administrative systems. Considering that, loyalty cooperation principle works in a bilateral manner. On one hand, national governments are obligated to properly cooperate with the supranational institutions and authorities. On the other hand, national governments have the right to require the same treatment from the EU.

Loyalty of the Union towards the member states is reflected in the equal treatment under the constituent treaties, cooperation by the EU institutions with the member states with the view and maximum consideration of their interests [22], respect for national individuality and main functions of the states. In addition, this principle covers mutual respect and support in implementation of the objectives deriving from the Constitution [8, p. 100-101]. Loyalty of the member states is characterized differently from the one of the EU. First of all, national governments are to ensure on their territory compliance with the rules of the Union's laws. This requirement

underlies the supremacy of the EU law over the national legislations of the member states. This was confirmed by the Court of the European Communities. The Court emphasized that national courts must apply the laws of EU in their entirety and do not allow any delay in application and/or selective application thereof [3, p. 37]. Loyalty cooperation principle covers also the following obligations of the member states: to assist the European Union in achieving its goals [21]; to refrain from actions that may prevent the Union from achieving its goals [19]; to cooperate with each other regarding the said goals [20]. While the constituent treaties had designated the loyalty cooperation principle predominantly for the economic sphere, the Constitution extended its application to all the spheres as determined therein.

The European Union is a voluntarily established supranational organization. However, this does not mean that joint decisions are executed by the national governments without any reserve. This is evidenced by a disloyal behavior of French, British and Polish governments, which more than once hampered the integration process. That occurred in the cases, when integration outlines had not corresponded to the idea of integration supported by the national elites. Rapid extension of the Union naturally leads to loss of political, social and economic uniformity among its members. As a result, the European Commission following Article 258 of Treaty on the Functioning of the EU in several times had to give the opinion that the member states must ensure observance of the obligations assumed under the Treaties. In cases when a member state fails to comply with EU law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, when necessary, may refer the case to the European Court of Justice. In accordance with the official statistics during the period from 1953 to 1998 the Court of Justice considered 1446 claims filed against the member states with respect to failure to comply with their obligations. This one more time evidences the importance of compliance with the principle of loyal cooperation.

Loyal cooperation principle cements the relations within the EU. It is aimed to ensure that behaviors of the national and supranational levels of authority are correlated in a manner that allows to achieve common good, prevent conflicts, resolve arising conflicts, as well as to create preconditions for strengthening the European integrity.

Delegation of authority principle was borrowed from the system of principles of authority organization in a federal state and adapted to the needs of the European Union. In contrast to a federation, where federal and regional agencies rely upon nation as single source of authority, the situation is different in the EU. Supranational institutions receive their authority not from the nation but from the governments of the member states. Existence of the European Parliament does not affect the situation significantly.

The Parliament by its scope of authority and influence on organization and functioning of the EU institutional system substantially yields to the European Council and Council.

Nation is a source of authority. However, nation cannot grant supreme, sovereign, independent and absolute authority simultaneously to several autonomous levels of public authority (state, supranational and regional) that are located on the different stages of hierarchy. Thus, supranational, national and regional levels of authority will always be different from each other by the scope of legitimacy. Since the time of formation of the national state concept, state is granted with the authority in its entirety and is responsible before a nation for its proper execution. In this period the phenomenon of legitimacy of the state authority is established. This phenomenon includes, firstly, understanding by the state authority of its right to authority (this covers legal and ethical meaning of the word), as well as capability to exercise such authority; and, secondly, treatment of this authority by a subject (population) as the one, which can better than any other level of authority ensure rights and interests, and is entitled to determine for each individual relevant behavior model through granting the rights and fixing legal duties [1].

State can exercise by itself the granted authority. Nonetheless, it can delegate some of the powers to other subjects of public authority located on the lower stages of hierarchy (this represents the principle of decentralization of authority). Meanwhile, the authority is kept with the state that was authorized by a nation to exercise it. It ought to be mentioned that due to acceptance by public conscience and especially by chief state officers of the idea that it is possible, efficient and lawful to delegate some authorities of the state to another level of public authority (in case this allows to exercise it more effective for the benefit of society), it appeared to be impossible to argue the position that such a delegation can be made only to the lower levels of authority but not to the higher ones. Therefore, rise of the issue about possibility to delegate authority to the supranational level has been only a matter of time and associated with creation of the like structure. Recognition of the possibility to delegate the authority to the supranational level entailed the need to specify the conditions of such delegation because it is the level of authority, which is higher than the state. Name of the principle of delegation of authority itself emphasizes that though formally the supranational level is higher than a state, it does not mean any actual supremacy of the Union over the state. Competence of the EU is secondary, which means it was received from the governments of the member states and, therefore, the supranational organization cannot go out the scope of the limits designated for it in the agreement on delegation. In addition, under the constituent treaties residual competence is not as-

signed to the Union. It remains with the member states and is exercised by the national governments.

Principle of delegation of authority gives rise to important requirements to organization and functioning of the Union and its cooperation with the member states. Delegation of authority to the EU results in questions regarding the requirements to the quality of the authority execution, terms and format of reporting by the EU institutions on execution of the delegated authority, responsibility for failure to execute or properly execute the delegated authority, as well as to the sources of financing of delegated authority execution. The last requirement is of crucial importance due to delegation can give positive results under the condition that EU is provided with the necessary material and financial resources. Thus, it is unacceptable to assign settlement of any issue to the supranational level, while the resources necessary for settlement are allocated by the national governments in a free order. Meanwhile, the idea of providing the European Union with its own sources of financing that would make the EU financially independent from the national governments is among the most complicated issues, because it is associated with the issue of sovereignty of the national or supranational levels.

Another issue is that delegation of authority and provision of financing is not sufficient. It is necessary to make relevant reforms of administrations of the member states, as well as of the EU institutional mechanism. Current crisis in the Euro zone to a considerable extent was caused by the national governments. After introduction of the single currency they overestimated their possibilities of self-control in financial sphere. Following that the national governments refused to establish a full-fledged all-European Ministry of Finance and broaden the functions of the European Central Bank. Nowadays it is obvious that it is impossible to ensure stable and reliable operation of EU currency system without single budget policy. Under such circumstances control over the expenses of the national governments cannot be performed. At the same time formation of all-European Ministry of Finance proposed by the Germany will hardly be supported by the majority of the member states. They are worried about the risk of losing financial sovereignty and possible strict budget discipline that will lead to cut of expenses and negative impact on the popularity of the elite in power.

Requirements as to the procedure of how the delegated authorities are revoked make a significant element of the delegation of authority principle. Under the general rule delegation of any authorities to the EU institutions is without any fixed term of validity. The procedure of how the delegated authorities are returned to the competence of the member states is not specified in the constituent treaties. However, this does not mean that such a return is impossible. One should proceed from the fact that assignment of a certain portion of competence to the EU institution by the mem-

ber states does not make the delegation irrevocable. Assignment of competence (the member states actually delegate the right to exercise competence) is temporary. Therefore, the one, who delegates, always has the right to revoke the delegation and return the right to exercise the competence by making amendments to the constituent treaties in accordance with the set legal procedure. Sharp discussions regarding the means to keep Euro zone evidence about this. As an option to resolve the issue they consider withdrawal of Greece and some other member states from this zone. Should that option be implemented, it will entail return of the right to exercise the competence in financial sphere by the Union to the government of Greece.

The issue on return by the institutions of the European Union of certain state powers must be associated with the issue on control by the national governments over proper exercise thereof. However, the EU constituent treaties do not provide for the legal grounds and procedures that would regulate how competences are assigned back from supranational to national level of authority (it appears to be obvious that such a return can be initiated by a state or group of states in question, as well as by the European Union itself).

European Union is the supranational organization that is created and operates in accordance with the federative model of authority organization. Given that, one of the attributes of the EU is a two-level system of government bodies that are formed on the supranational ("federative") level and on the level of the member states. Therefore, it is natural that tight connections must exist between these levels of authority to ensure integrity and functionality of the Union. To ensure democratic character and reality of the EU federative model it is necessary that organization of the national institutes and bodies of authority be in compliance with the basics of constitutional system and general principles of organization and functioning of the national government bodies. This makes the EU different from a federation, where a contrary approach is applied. In the course of implementation of the mentioned requirement a significant meaning is given to legality. Substance of legality in this case covers maintenance of dynamics of the EU legal order as a result of coordination between supranational, national and regional levels of authority.

Principle of legality is grounded on the principle of supremacy of the EU primary law over the national law of the member states, including constitutional law. Hence, the national legislations must correspond to the one of the Union. The principle of legality is used on the supranational, national and regional levels in making and application of the law that is based on the rules of the EU law. Supranational and national government bodies are involved to ensure "constitutional" legality.

An important role in ensuring of observance of legality plays the Commission, which in accordance with TFEU (Article 258) keeps control over compliance by the member states with their obligations implied in the constituent treaties. There is a set procedure to hold a member state liable for breach of the obligations under the treaties. This procedure is composed of two stages. The first one is an administrative stage, which is obligatory. The court stage that is the second step is not obligatory [2, p. 69-71].

The most effective guarantee of legality in the EU is legal liability of the member states, their citizens and legal entities for violating the laws of the EU. In case of an individual or a body corporate breaking the norms of EU law, an authority to impose penalties for such a breach under the general rule is given to the bodies of a relevant member state. In case of violation of anti-trust regulations the penalties are imposed by the authorized institutions (bodies) of the Union (e.g., Commission). The situation is more complicated when a member state breaches the EU laws and explicitly ignores them within its territory. The legal ground for introduction by the EU Court of the institute of liability of the member states for violating the Union's laws is the obligation of the national governments to ensure protection of the rights of a person as granted by the European Union, as well as the loyal cooperation principle. At present a member state can be held liable notwithstanding what government bodies caused a particular violation. Such an interpretation originates from the requirement that a state as a whole assumes an obligation to ensure implementation of the EU laws.

It ought to be mentioned that in case the Court satisfies the claim and alleges an act issued by the government bodies of a member state to be unlawful, then this act will be found null and void from the very moment of its issue (Article 264 of TFEU). Institution, body or establishment that has issued that act is to take actions to execute the Court's decision (Article 265 of TFEU). On the other hand, the above does not evidence the high level of legality in the EU. M.V. Baiteeva indicates that the Commission in its reports on the EU laws compliance in numerous times stated that the Court's decisions often remain unexecuted. It is a common practice for the member states to delay execution of the decisions related to violations of the requirements prescribed in the constituent treaties. Such a delay may last up to three years starting from the date a decision is delivered. This explains the existing "stability" in violations dynamics [2, p. 70-71].

In present circumstances an upcoming crisis of the national statehood is represented by delegation of some part of the authorities to the supranational structures and the other part to the regional/municipal authorities. This gives rise to the issue on balance of powers and distribution of competence among different levels of public authority not only in transitional societies and federations being created but also in steady federative forma-

tions and supranational associations, which use the federative model of operation. They need to update their institutions and structures based on federative principles and first of all subsidiarity principle.

Official recognition of the subsidiarity principle took place in the second half of 1980s. This resulted from the need to ensure broad social support to the integration process that moved up to transformation of the European Communities into the European Union. Substance of the subsidiarity principle was for the first time clearly reflected in the EU constituent treaties, though with limitations as to the sphere of application, in § 4 Article 130r of the Single European Act. In a full scope the principle was fixed in the Treaty of Maastricht on European Union, where it is mentioned two times: in the Preamble («RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity») and Article B («The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 3b of the Treaty establishing the European Community»), which refers to Article 3b that speaks about substance of subsidiarity principle («The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.») [25].

When interpreting the principle of subsidiarity and determining the limits of its effect one should consider that EU member states agreed to treat subsidiarity as a dynamic concept, which is used in the light of the objectives established in the Treaty. This actually means that subsidiarity allows to extend the sphere of the Union's activity within its jurisdiction in the cases, when circumstances require that, and vice versa to limit that activity or even stop it in the cases, when it is no longer justified (par. 3 of Protocol on Application of the Principles of Subsidiarity and Proportionality). Readiness of the member states to treat subsidiarity as a dynamic concept, which substance is not limited in Article 3b of the European Union Treaty, is evidenced with signing by Germany, Austria and Belgium of a joint Declaration. The Declaration says that the Community's activity, as determined by the subsidiarity principle, refers not only to the member states but also to

their structural elements and as far as these elements in accordance with domestic constitutional provisions possess legislative competence.

When interpreting the subsidiarity principle it is necessary to take into account the connection existing between this principle and the principles of human dignity, freedom, solidarity and justice, as well proportionality and loyal cooperation principles as the specific grounds of the EU activity. Considering that, the principle of subsidiarity in the institutional context means that authorities, which belong and are exercised by a member state or the European Union, are the ones that cannot be exercised on their own by an individual, family, group of individuals or local and regional authorities. In other words, subsidiarity implies that the decisions are made on the level that is closest to a citizen and that activity of the higher levels of authority is limited and their interference with the lower level affairs is reasonable.

One should not consider that the principle of subsidiarity leads to decentralization of authority. The truth is that it works in both ways and under certain circumstances allows extension of the Union's activity within the initially determined jurisdiction. Thus, the issue of demarcation of competence of the EU and the member states is crucial for implementation of the subsidiarity principle because it influences the sphere of their joint competence.

Problems of implementation of the principle of subsidiarity are associated, first of all, with exercise of law-making activity. In that context an issue as to legality of the EU acts arises. Protocol (par. 5) requires that adoption of any act of the Union must be preceded by a relevant audit, which will give answers to the certain questions. The first one is whether a state has necessary means (in particular, the financial ones) to solve an issue in question. If the answer is positive, then the Union has to refrain from adoption of the relevant act. In case of a negative answer, the second one needs to be considered: whether the EU will be more efficient in solving the issue than a state. In case the Union fails to prove that its interference will allow to solve the issue more effective, then the Union has to refrain from taking any steps towards. When answering any of the above questions the Commission should consider the following criteria that are prescribe for in the Protocol (par. 5): whether the issue to be solved affects the interests of one or several states; what consequences may arise in case the issue is solved by the member states themselves or in case the EU does not interfere with the process; estimate efficiency of the EU's activities, if compared to the activities of the national governments. If after the analysis the Commission comes to a conclusion that within the principle of subsidiarity it is necessary to adopt relevant act, then the Commission must decide on the type of such an act. Par. 6 of the Protocol clearly indicates the priority of the framework legislation (Directives over Regulations, Framework Directives over Directives that contain more detailed rules) due to it

gives to the national governments more space to chose forms and methods of their own activity. In addition, par. 7 emphasizes that that the Union must treat with respect the national legal systems and the actions of the Union, to the extent it is possible, must allow as many options for the decisions of the member states as possible. During further work on the legal act the Commission must pay special attention to the suggestions and comments of the Council, the European Parliament and the national governments as to the compliance of its activities and the suggested amendments given by them with the subsidiarity principle.

It is declared that the decisions in the European Union are made in accordance with the principle of subsidiarity and with the maximum attention to the needs of the citizens. Given that, it is very important to have in place the mechanism to arrange preliminary broad consultations with the national governments and regional authorities of the member states. Obligation to undergo such a procedure is evidenced by the Constitution of France. Article 88-4 of the Constitution determines that proposed Communities' acts of legislative character must be submitted by the government to the National Assembly for consideration as soon as they are lodged with the Council of Communities.

To summarize the above it ought to be mentioned as follows. Firstly, within the last decade the Commission reduced its activity as to legislative proposals. Moreover, 80% of all the proposals have been made by the Council or the member states. Therefore, the fears that EU institutions will extend their competence based on the subsidiarity principle seem to be groundless. Presently the key matters of operation of the member states and the EU as a whole cannot be resolved without consent of the national governments. Secondly, in the nearest future application of the subsidiarity principle will inevitably give rise to other issues. Analysis of the Lisbon Treaties evidences that domestic regions and the Committee of Regions will join the discussion about substance and implementation of the subsidiarity principle. The Committee positions itself as a main EU body focused on the interests and problems of the regions and, therefore, is among the followers of the idea of reformation of the European Union based on the philosophy, which includes the principle of subsidiarity as one of the key elements.

Principle of subsidiarity is closely connected with the principle of proportionality that is very-well known to the internal laws of the European states. It is considered that this principle was taken from the laws of Germany [11, p. 316-317]. Subsequently, it was fixed in the constituent treaties of the Union (for the first time it was mentioned in Article 3b of Lisbon Treaty: "Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty").

Principle of proportionality prescribes that substance and format of the Union's activities shall not go beyond what is necessary to achieve the objectives of the Treaty [5, p. 173, 396-400]. S.V. Shevchuk indicates that to understand the proportionality principle it is necessary to refer to the gains of the German legal science and practice. German lawyers distinguish within the principle of proportionality the following requirements: firstly, adequacy requirement, which prescribes that authorities must be implemented in a manner that is most appropriate to achieve the set goals; secondly, necessity requirement, which prescribes that implementation of authorities must be necessary to achieve the relevant goals; thirdly, proportionality in a narrow sense, which specifies that implementation of authorities must not create a burden or cause any harm to other legitimate interests that will lead to disproportion, nevertheless the importance of the goal to be achieved [11, p. 317-319].

In contrast to subsidiarity, the principle of proportionality is applied to the legislation adopted within the exclusive competence of the Union and to the spheres that are within the scope of joint competence. Under the proportionality principle even the spheres of social life that are within the exclusive competence of the Union's institutions must be governed with consideration of the interests of the national governance and cooperation with them in the spirit of loyalty. The substance of the proportionality principle includes also obligation of the national authorities to take into account the interests of the EU and exercise their competence in accordance with the loyal cooperation principle.

It is common to fix in legal documents and apply the principle of subsidiarity and proportionality together. This gives rise to the question about correlation between them. Analysis of the constituent treaties and practice of application thereof confirms that these principles are used consecutively. Subsidiarity principle is applied when it is necessary to find out the fact that regulations on the EU level need to be introduced to implement certain actions. Thus, application of the principle is stopped when such a fact is clear. Starting that moment the principle of proportionality comes into effect. This principle allows the European Union to determine what actions need to be taken. It means that, firstly, proportionality principle cannot be used to determine whether EU involvement in some matter is expedient or not, secondly, it cannot be used to determine on what level of authority the necessary decisions must be made.

One of the principal goals of the European Union and the member states is achieving the maximum level of integration that is possible on a particular historical stage and cannot be implemented without close cooperation of the member states with each other and with the institutions of the Union. Such cooperation is not possible beyond the general principles of

organization and operation of the European Union. Comprehensive and consecutive implementation of these principles creates preconditions for successful development and functioning of the supranational organization of authority. In addition, this ensures safety of the member states sovereignty as it shows secondary character of the supranational authority.


1. Авдийский В.И. Механизм легитимации государственной власти: историко-теоретическое исследование: дис.... д-ра юрид. наук. СПб., 2002.

2. Байтеева М.В. Контрольные полномочия Суда Европейского Союза // Вестник ТИСБИ: Сб. науч. тр. 2003. №1.

3. Барышников М.Ю. Принцип лояльного сотрудничества в европейском праве: дис. ... канд. юрид. наук. Казань, 2007.

4. Договор о Европейском Сообществе // Европейское право : учебник / под общ. ред. Л. М. Энтина. М.: Изд-во НОРМА, 2002.

5. Европейский Союз : основополагающие акты в редакции Лиссабонского договора с комментариями. М.: ИНФРА-М, 2008.

6. Зуев В.Н. Наднациональный механизм как фактор развития экономической интеграции в Европейском Союзе : Автореф. дис. д-ра эконом. наук. М., 2011.

7. Капустин А.Я. Европейский Союз: интеграция и право. М.: Изд-во Рос. ун-та дружбы народов, 2000.

8. Конституция Европейского Союза: Договор, устанавливающий Конституцию для Европы (с комментарием) / С.Ю. Кашкин (отв. ред.). - М.: ИНФРА-М, 2005.

9. Павельева Э.А. Взаимодействие органов Европейского Союза и органов государств-членов: дис. ... канд. юрид. наук. СПб., 2007.

10. Сало В.І. Внутрішні функції держави в умовах членства в Європейському Союзі: дис. ... канд. юрид. наук. Х., 2008.

11. Шевчук С.В. Судова правотворчість: світовий досвід і перспективи в Україні. К.: Реферат, 2007.

12. Яковюк І.В. Германський імперський федералізм і його вплив на європейські інтеграційні процеси // Державне будівництво та місцеве самоврядування : зб. наук. пр. Харків: Право, 2011. №21.

13. Яковюк І.В. Прояв наднаціональності в Європейському Союзі // Державне будівництво та місцеве самоврядування: зб. наук. пр. / ред. кол.: Ю.П. Битяк та ін. Харків: Право, 2006. №12.

14. Яковюк И.В. Реализация государственного суверенитета в условиях наднациональной организации власти (на примере Европейского Союза) // Правовые проблемы определения и реализации государственного суверени-

тета на современном этапе / под ред. А.К. Сковикова, И.В. Яковюка. М.: ООО «НИПКЦ Восход - А», 2010.

15. Beyme K. Von Asymmetric federalism between globalization and regionalization // Journal of European Public Policy. Jun. 2005. Vol. 12, Issue 3.

16. Bogdandy A. Von the European Union as a Supranational Federation: a Conceptual Attempt in the Light of the Amsterdam Treaty // Columbia Journal of European Law. Winter. L., 2006.

17. Buchanan J.M. Federalism as an ideal political order and an objective for constitutional reform // The Journal of Federalism. 1995. №25(2).

18. Burgess M. Federalism and Federation, in European Union Politics. Ed. M. Cini. Oxford and New York: Oxford University Press, 2003.

19. Case 118/75, Lynne Watson & Allessandro Belmann, 1976 E.C.R. 1185.

20. Case 217/88 Commission v Germany [1990] ECR 1-2907.

21. Case 804/79 Commission v. United Kingdom (Sea Fisheries Conservation Measures) [1981] ECR 1045 at 1075.

22. Case C-234/89, Delimitis v Henninger Braü AG [1991] ECR p I-935.

23. International Law. Cases and Materials / L. Henkin, R. Pugh, O. Schachter, Н. Smit. St. Paul, 1993.

24. Spruyt H. The Sovireign State and its Competitors. An analysis of System Change. Princeton, Princeton University Press, 1994.

25. Treaty on European Union [Электронный ресурс]. URL: http://eur-lex.europa.eu/en/treaties/dat/11992M/htm/11992M.html (дата обращения 10.10.12)

26. Vaubel R. Comments on article by Lenaerts and de Smijter // Reforming of the Treaty on European Union. The Legal Debate. The Hague: Kluwer Law International, 1996.

27. Velasco de M.D. Las organizaciones internacionales. Madrid, 1996.

28. Wyatt & Dashwood's European Union Law: 5th ed. / Edited by Antony Arnull, Alan Dashwood, Michael Dougan, Malcolm Ross, Eleanor Spaventa, Derrick Wyatt, Q.C. London : Sweet & Maxwell, 2006.

29. Yakovyuk I.V. Imperial Model as a Basis for Development of the European Union at the Present Stage // WEST-OST-REPORT : International Forum for Science and Research. Berlin. 2012. №4.