Burning Bridges? The Court of Justice and the Autonomy of the EU Legal Order

• Date: 01 January 2018

1

Burning Bridges?

e Court of Justice and the Autonomy of

the EU Legal Order

RACHEL O’SULLIVAN*

Autonomy means self-rule. An entity that possesses autonomy has the ability to

choose a path for itself, without the inuence, direction and control of others.1

e concept of autonomy occupies a constant but diverse presence throughout all

legal disciplines. Whether one is considering the individualised right of a patient to

make decisions as to medical treatment,2 or attempts to design systems of political

or cultural self-determination for minority groups,3 autonomy is inuential

yet rarely uncontroversial. e concept of autonomy has played a central role in

advancing the European Union4 from its origins in an international agreement

between six sovereign states, to its current status as a global power ‘of a scope and

signicance without parallel among international organisations’.5 rough the

jurisprudence of the Court of Justice of the European Union,6 the EU has emerged

as an ‘autonomous legal order’ self-declaring its independence from both the legal

orders of the Member States and the constraints of public international law.7 While

autonomy traditionally received limited academic attention,8 this absence has been

* B.C.L. (International) (UCC), LL.M. (Cantab.), Trainee Solicitor at Matheson. e author would

like to thank Dr Alicia Hinarejos for her advice and support in writing this article. e author is very

grateful to Ciarán Donohue for his insightful comments and editorial guidance on earlier dras of

this article.

1 Jed Odermatt, ‘When a Fence Becomes a Cage: e Principle of Autonomy in EU External

Relations Law’ European University Institute MWP Working Paper 2016/2017 1 tp://

cadmus.eui.eu/bitstream/handle/1814/41046/MWP_2016_07.pdf?sequence=1&isAllowed=y>

accessed 5 April 2018.

2 Daniel Callahan, ‘Autonomy: A Moral Good, Not a Moral Obsession’ (1984) 14 e Hastings

Center 40.

3 Douglas Sanders, ‘Is Autonomy a Principle of International Law’? (1986) 55 Nordic Journal of

International Law 17.

4 Hereinaer, the ‘EU’.

5 Andrew Moravcsik, ‘e European Constitutional Compromise and the Neofunctionalist Legacy’

(2005) 12 Journal of European Public Policy 349, 349. e terminology applicable following

the Lisbon Treaty will be used when referring to the EU, the CJEU and the GC. However, when

quoting from case law or academic articles, the original wording will be maintained.

6 Hereinaer, the ‘CJEU’.

7 Beginning with the seminal decision in Case 26/62 Van Gend en Loos [1963] ECR 5.

8 Jan William van Rossem, ‘e Principle of Autonomy of EU Law: More is Less’ in Rammes A

Wessel and Steven Blockmans (eds), Between Autonomy and Dependence: e EU Legal Order under

the Inuence of International Organisations (TMC Asser Press 2013) 14.

2  ’

remedied by the interest generated by two more recent CJEU cases, the Grand

Chamber decision in Kadi,9 and its ruling in Opinion 2/13.10

e signicance of the recognition of the ‘autonomous legal order’ cannot be

overstated, reliant as it was upon the voluntary limitation of sovereignty by the

Member States.11 e preservation of the autonomous legal order, therefore, is

dependent upon maintaining balance between the CJEU and the domestic legal

orders.12 e recent jurisprudence of the CJEU, however, appears to have altered

the scales substantially, in its central prioritisation of the autonomy of the EU.

While the CJEU appears to view this prioritisation as essential to maintaining

the coherency and supremacy of EU law, this article will demonstrate that such a

strategy is not without risk. By increasingly constitutionalising the concept of the

autonomous legal order, the CJEU may imperil the support of the Member States,

particularly in the current climate of antagonism towards the EU. Furthermore,

the CJEU’s unwavering adherence to the autonomous legal order has signalled

an end to many external policy ambitions of the EU institutions. Consequently,

this unyielding protection of the autonomy of the EU, essentially excluding other

international fora from any adjudicative role, risks alienating the CJEU’s political

counterparts. e CJEU is thus in danger of being viewed as a hindrance to the

institutions’ political agenda, rather than as a cooperative partner in the process

of EU integration. Irrespective of the claim to autonomy of the EU legal order by

the CJEU, its implementation depends upon the acceptance and support of the

other actors involved in the European integration project. us, notwithstanding

its attempt to protect the autonomous legal order, CJEU expansionism may have

in fact jeopardised its future stability.

e Emergence of the Autonomous Legal Order

Origins: Internal Autonomy

e initial development of the principle of autonomy emerged from the CJEU’s

mission to ensure that EU law would not be rendered ineective in the face

of conicting legal provisions of the Member States, governed by national

discretionary theories of monism and dualism. e emergence of the principle of

9 Joined Cases C-402 and 415/05P Kadi and Al Barakaat International Foundation v Council and

Commission [2008] ECR I-6351.

10 Opinion 2/13 on the Accession of the European Union to the European Convention for the Protection

of Human Rights and Fundamental Freedoms EU:C:2014:2454.

11 Van Gend en Loos (n 7); Mary Dobbs, ‘Sovereignty, Article 4(2) TEU and the Respect of National

Identities: Swinging the Balance of Power in Favour of the Member States’ (2014) 33 Yearbook of

European Law 298, 304.

12 As noted by Hinarejos, the EU rests on a ‘constitutional bargain’ between the EU and its Member

States, Alicia Hinarejos, Judicial Control in the European Union: Reforming Jurisdiction in the

Intergovernmental Pillars (OUP 2009) 9.