EU Member States as States: Between EU and International Roles and Obligations

In thinking about Marise Cremona’s scholarship on the expansion of EU membership, in their contribution Casolari and Wessel map and analyse situations in which EU Member States act as States, either because State-functions have not been affected by EU membership, simply because they completely fall outside the scope of EU law, or because statehood is an essential asset in the context of EU law. In doing so, this contribution aims to shed light on the various identities States have in engaging with the Union. The tension States may experience between being a State and a Member State at the same time is particularly visible in situations in which Member States’ obligations under EU law collide with general obligations those States may have under international law. Not only in relation to the division of competences, but also in view of, for instance, the allocation of responsibilities, this question is gaining importance. Identities often overlap and are sometimes difficult to distinguish. To differentiate between the various identities, this chapter introduces the term ‘EU States’ to distinguish their identity from the one they have as ‘Member States’. The chapter demonstrates that Union membership has resulted in a DNA mutation of statehood, giving EU states a dual identity which mirrors, to some extent, the Janus-faced attitude of EU Treaties. As ‘EU States’, those States, on the one hand, are sovereign entities under international law, acting as the framers of the integration process; on the other hand, as Member States they act as subjects of an autonomous legal order, being first obliged to respect its ‘basic constitutional charter’. The identity of EU members is fluid and dynamic as roles may overlap in specific situations and change over time. The argument presented in this chapter stresses the potentialities that the principle of sincere cooperation may express in reconciling the dual identity of EU States, contributing thus to shape a European space of shared and mutually dependent sovereignty.