Between Autonomy and Dependence The EU Legal Order Under the Influence of International Organisations An Introduction (original) (raw)
Related papers
Revisiting the external dimension of the autonomy of EU law: Is there anything new under the sun?
Hungarian Journal of Legal Studies
The concept of the autonomy of EU law has received, since its inception in the 1960s, remarkably little academic attention when compared to other basic EU law premises such as "primacy" or "direct effect", particularly from the theoretical angle. However, "autonomy" is undisputedly a fundamental and structural principle of the EU legal order. Given the reflexive nature of the term "autonomy", to be distinct from something and to be able to function separately, it presupposes one or more points of reference. If these are assumed in the form of legal orders, the autonomy of EU law can be basically conceived in two ways: vis-à-vis international law or the legal systems of Member States. The concept of autonomy is traditionally perceived with regard to international law (external dimension of autonomy) as leading judgments of the Court of Justice of the EU and many of its Opinions have further developed this doctrine. This short piece attempts to clarify the meaning of the external dimension of autonomy of EU law and discuss some of the associated challenges. In this context, the paper portrays the various legal techniques and substantive requirements for preserving the external autonomy of the EU legal order from international law. Keywords: relationship between EU law and international law, autonomy of EU law, Court of Justice of the European Union, constitutionalisation of EU law, Opinion 2/13 * This article was prepared with the support of the János Bolyai Research Scolarship of the Hungarian Academy of Scienses.
Exploring the Autonomy of the European Union Legal Order
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law
Two different dynamics govern the autonomy of the European Union (EU) legal order. On the one hand, autonomy seeks to define what EU law is not, i.e. it is not ordinary international law. Positively, on the other, autonomy seeks to define what EU law is, i.e. a legal order that has the capacity to operate as a self-referential system of norms that is both coherent and complete. Yet the concept of autonomy of the EU legal order in no way conveys the message that the EU and its law are euro-centric and that the Court of Justice of the European Union (the ‘Court of Justice’) seeks to insulate EU law from external influences by building walls that prevent the migration of legal ideas. Autonomy rather enables the Court of Justice to strike the right balance between the need to preserve the values on which the EU is founded and openness to other legal orders. The autonomy of the EU legal order is thus part of the very DNA of that legal order as it allows the EU to find its own constitutio...
AUTONOMY OF THE EUROPEAN UNION LEGAL ORDER AND AUTONOMOUS INTERPRETATION
2023
I have written several case notes, such as Opinion 1/91 EEA, Opinion 1/09 Community patent, Opinion 2/13 ECHR, the case of Achmea, Opinion 1/17 CETA and others regarding the autonomy of the European Union (EU) legal order. Recently, I wrote a case report on the Dumitru-Tudor Dorobantu case. Then, a simple question came to my mind: Why did the Court of Justice of the European Union (CJEU) borrow criteria from the European Court of Human Rights (ECtHR) instead of establishing its own criteria? On the one hand, the CJEU has insisted on the importance of the autonomy of the EU legal order and has refused to commit to international agreements. On the other hand, the CJEU not only referenced the case law of the ECtHR but also used the criteria established by the ECtHR. To address this question, this article aims to discuss whether the CJEU can and should construct the fundamental rights criteria of the Charter of the EU fundamental rights.
This paper considers the different uses and conceptualisations of ‘autonomy’ in EU law and public international law (PIL) to explore its nature and legal character and determine whether it has (or should) become a general principle of EU law (GPEU). This is significant because of the powerful role and position of GPEU in the hierarchy of EU law, as self-standing legal sources, framing (and legitimising) the legal order, requiring conform interpretation, and displacing lower-ranking norms in case of conflict. We argue that autonomy should be deemed a descriptive umbrella term referring to the (functional) ‘independence’ of EU law. We take issue with the idea of autonomy being a normative one, capable on its own of providing a justification for legal decisions and related outcomes. The Court of Justice (CJEU)’s overarching claim to autonomy in Opinion 2/13 goes in the opposite direction and appears to establish it as a GPEU. This would mean that autonomy is more than the (descriptive) consequence of a set of rules and the sui generis nature of the EU as an international organisation. An independent normative content of autonomy could then be taken as the cause and justifier of the independent legal personality, powers, law-making capacity, mission, vision, and institutional makeup of the EU, and as the ultimate source of validity of ‘the structure and objectives of the EU’. It may, thus, become a sort of (self-standing) metateleological rule of interpretation of EU norms, introducing a federalist bias towards ‘an ever closer Union’, fostering regional integration through the realization of the EU’s objectives (as interpreted by the CJEU) practically at any rate. As we demonstrate, this is problematic on a number of levels. It exposes the flaws of functionalism as normative underpinning of a (potential) GPEU of autonomy, as it would entail a claim to (unhindered) self-rule above and beyond the relative independence of international organisations, and even the sovereignty of states, which does not tally with the fundamental architecture of the international legal order. If this were the case, the EU would be rendered an unconstrained, unaccountable super-entity, unbound from the foundational premises of PIL.
The Court of Justice of the European Union and International Legal Order
Russian Law Journal
This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them.
The European Union Legal Order: An Introduction to its Nature and Scope
The impact of the European Union legal order on the private law systems of the Member States can only be fully understood when put in the broader context of the raison d'être of European integration and the emergence of a supranational legal order, as well when appreciating the basic mechanics behind the processes that drive the Europeanization of the legal orders of the Member States of the European Union (EU). In fact theses mechanics are quite distinct from those traditionally to be found in the constitutional legal order of states, but also from those in public international law. Highlighting these differences, this contribution first of all observes the the nature of European law as it has emerged since the establishment of the European Coal and Steal Community and thereafter the European Economic Community (Treaty of Rome). Thereafter the two basic tools driving the integrationist efforts of the EU are explained, followed by an overview of the internal market provisions th...
EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It
34 Yearbook of European Law, 2015, pp. 74–96.
This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.
European Law Review, 2019
It seemed that Court of Justice of the European Union wanted to make it short and sweet: It took the Grand Chamber in its Achmea judgement less than fifteen pages to conclude that Investor-State dispute settlement in an intra-EU context is incompatible with EU law. The Judgement is noteworthy in terms of both the conceptualisation as well as the application of the principle of autonomy of EU law. In terms of conceptualisation of the principle, what we witness in Achmea, read in conjunction with another decision, could be a first subtle attempt to enrich the principle with notions of the rule of law. In terms of application, the Court further strengthens legal equality, its judicial monopoly, and – perhaps even more importantly – the role of the Member States' courts, understood as " traditional permanent State courts " , in the judicial dialogue.
2015
SETTING THE SCENEAt a time when the European Union is remodelling its institutional and legal architecture, as well as its borders, and redefining its priorities, identity and role in the international arena, this article aims to analyze to what extent the EU legal order constitutes a separate field of law, evolving towards a special legal regime or even a self-contained regime.An inquiry into the legal nature of the EU implies two perspectives of analysis, depending on the "level-of analysis problem"2: first of all, the analysis through the lens of international lawyers viewpoint and then, the analysis through the lens of EU lawyers perception. In the first case, if we look at the works of Dupuy3, Jan Klabbers4 or Nollkaemper5, we notice that the supremacy of international law prevails over any kind of legal regime and EU is seen as an international organization. However, in the second case, while building their arguments on the sui generis nature of EU and its legal part...