The Functional Aspects of the Concept of Conferral of Powers by States

The principle of conferral of powers is a EU law principle, written in Artice 1 TEU, saying that the EU consists of Member States who have common objectives, and that the Members States confer on the EU competences in order to attain these common objectives. The direct elements of the principle of conferral of powers by states are sources, delegation, and power but the principle of conferral also depends on the concepts of state(hood), sovereignty, legitimacy, democracy, government and governance. Although some of these concepts are related more and others less to the principle of conferral, they are all hybrid concepts that are continuously changing, i.e., there is no universal, valid and applicable in every time and place concept among these. Of the many theories that could explain conferral of powers by states, I have chosen the international law theory of global constitutionalism and global governance. The theory has common points with government and governance approach. One of my hypotheses is that the more an international actor (an international organization, the EU) contains elements of governance/functionalism, the less it contains elements of government/traditional democracy theory and vice versa. It can be inferred that EU law combines two forms of action beyond nations – international action on the functional basis, and supranational action related to democracy theory. Another hypothesis is that both of these two forms may mean merely functionalism, not connected with the traditional democracy theory, and therefore, if the EU is not a state but only functions as a state, it would mean merely deeper integration rather than the EU based on the traditional democracy theory. The theories of governance and constitutionalism would explain the problem as follows: while intergovernmental EU could mean governance, EU as a supranational state could mean the EU as a government. My presentation would test these hypotheses.