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

Date01 January 2018
Burning Bridges?
e Court of Justice and the Autonomy of
the EU Legal Order
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://
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.

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