L’autonomia del diritto UE è governata da due distinte, ancorchè collegate, dinamiche. In termini negativi, l’autonomia prova a definire cosa il diritto UE non è, cioè esso non è diritto internazionale comune. In termini positivi, l’autonomia significa definire cosa il diritto UE è, vale a dire un ordinamento giuridico autonomo che ha la capacità di operare come un sistema autosufficiente di norme. Ciò detto, va precisato che il concetto di autonomia del diritto UE in alcun modo trasmette il messaggio che l’Unione e il suo diritto sono eurocentrici e che la Corte di giustizia dell’UE prova ad isolare il diritto UE da influenze esterne costruendo muri giuridici che impediscano la migrazione di idee. Al contrario, l’autonomia del diritto UE consente alla Corte di giustizia di operare il giusto bilanciamento tra la necessità di preservare i valori che l’Unione tutela e vuole preservare per le future generazioni e “l’esprit d’ouverture” che ha ispirato gli autori dei Trattati quando hanno imparato le importanti lezioni dal passato e più in particolare dalle distruzioni della seconda guerra mondiale. Di conseguenza, l’auto­nomia del diritto UE racchiude, come parte del suo autentico DNA, l’idea di operare un esercizio di bilanciamento che permette all’Unione di trovare il suo proprio spazio costituzionale interagendo con gli Stati membri e con un mondo più ampio.

SOMMARIO:

I. Introduction. - II. What EU law is not: it is not ordinary international law. - III. What EU law is: an autonomous, self-sufficient and coherent system of norms. - IV. Concluding remarks. - NOTE

I. Introduction.

The autonomy of EU law is a topic that has drawn a great deal of interest from academics since the Court of Justice of the European Union (the ‘Court of Justice’ or the ‘Court’) gave its ruling in Opinion 2/13 [1]. That is perhaps unsurprising as that Opinion contains what is probably the most detailed and comprehensive analysis of the autonomy of EU law [2]. That said, when examining the concept of autonomy of EU law, one should begin by revisiting the classics. As is well known, the ‘constitutionalisation’ of the EU integration project began fifty five years ago when the Court of Justice delivered its ground-breaking judgment in van Gend en Loos [3]. In what is probably the most famous passage ever written by the Court, the latter held that: ‘… the [European Union] constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals’ [4]. Contrary to the position in relation to international agreements in general, the Court of Justice held that it is not for the constitutions of the Member States to determine whether an EU Treaty provision may produce direct effect, as that determination is to be found in ‘the spirit, the general scheme and the wording’ of the EU Treaty itself. Questions regarding the normative nature of EU law are to be solved in the light of the Treaties themselves. It follows from van Gend en Loos that the autonomy of EU law is governed by two different, albeit intertwined, dynamics. Negatively, autonomy seeks to define what EU law is not, i.e it is not ordinary international law. Positively, autonomy seeks to define what EU law is, i.e. an autonomous legal order that has the capacity to operate as a self-sufficient system of norms. The present contribution will focus on exploring those two dynamics of autonomy [5]. To that effect, it is divided into two parts, each focusing on one of those two dynamics. Finally, a brief conclusion supports the contention that the concept of autonomy of EU law in no way conveys the message that the EU and its law are euro-centric and that the Court of Justice seeks to insulate EU law from external influences by building legal walls that prevent the migration of ideas.

II. What EU law is not: it is not ordinary international law.

The autonomy of EU law may be defined in a negative fashion: EU law is not ordinary international law. Traditionally, international law has operated on the assumption that actions brought by a contracting party against another contracting party are sufficient to guarantee respect for an international agreement. However, in van Gend en Loos, the Court of Justice rejected that assumption. It explained that if the judicial protection of EU rights were limited to proceedings brought by the European Commission or a Member State, that limitation ‘would remove all direct legal protection of the individual rights of [Member State] nationals’. Hence, the judicial protection of EU rights is based on a system of ‘dual vigilance’: in addition to the supervision carried out by the European Commission and the Member States, individuals are entitled to rely on their EU rights in the national courts [6]. Van Gend en Loos established the autonomy of the EU legal order vis-à-vis international law. In the following years, the Court of Justice continued to distance itself from international law. For example, whilst in van Gend en Loos, it wrote ‘the [Union] constitutes a new legal order of international law’ [7], in subsequent judgments, the expression ‘of international law’ was abandoned by the Court. For example, in Commission v Luxembourg [8], decided a year and a half later, the Court of Justice refused to apply, in the context of infringement proceedings, the principle of international law according to which ‘a party, injured by the failure of another party to perform its obligations, [may] withhold performance of its own’ (the so-called ‘exceptio non adimpleti contractus’). ‘[T]he Treaty is not limited to creating reciprocal obligations between the different natural and legal persons to whom it is applicable’, the Court wrote, ‘but establishes a new legal order which governs the powers, rights and obligations of the said persons, as well as the necessary procedures for taking cognisance of and penalising any breach of it’ [9]. In the same way, in Costa v ENEL, the Court of Justice ruled that ‘[by] contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of [continua ..]

III. What EU law is: an autonomous, self-sufficient and coherent system of norms.

Expressed positively, the autonomy of EU law focuses on the fact that the EU legal system functions as an autonomous legal order, since it has the capacity to operate as a self-sufficient system of norms. As mentioned in my introduction, in Opinion 2/13 the Court of Justice undertook what is probably the most detailed and comprehensive analysis of the autonomy of EU law [25]. By giving concrete expression to the relevant passages of van Gend en Loos and Costa v ENEL [26], the Court explained that the concept of ‘autonomy’ relates to the constitutional structure of the EU [27], the nature of EU law [28], the principle of mutual trust between the Member States [29], the system of fundamental rights protection provided for by the Charter [30], the substantive law of the EU that directly contributes to the implementation of the process of European integration [31], the principle of sincere cooperation [32], and the EU system of judicial protection of which the preliminary reference procedure laid down in Article 267 TFEU is conceived as its keystone [33]. One may draw five distinct conclusions from that positive understanding of autonomy. First, it is the Treaties themselves that determine whether a norm belongs to the EU legal order. The incorporation of external norms into EU law is made conditional upon those norms complying with the fundamental values and structures on which the European Union is founded [34]. If those norms fail to comply with those values and structures, then they cannot form part of EU law. For example, the Kadi I and II judgments demonstrate that no public international law obligation may be incorporated into the constitutional fabric of the EU if compliance with that international obligation entails a violation of fundamental rights as recognised in the Charter [35]. In the same way, it follows from Opinions 1/09 and 2/13 that the EU may not enter into an international agreement the effects of which would be to compromise the judicial dialogue between the Court of Justice and national courts [36]. More recently, in Achmea, the Court of Justice held that the autonomy of EU law precludes an international agreement entered into by the Member States the effect of which would be to remove from the jurisdiction of national courts – and thus from the scope of the preliminary reference procedure – disputes that may [continua ..]

IV. Concluding remarks.

From a normative perspective, the autonomy of EU law reflects the idea that the Treaties lay down a ‘constitutional order’, given that they have established an autonomous, self-sufficient and coherent system of norms. That constitutional order is to be distinguished from ordinary international law. However, that concept of autonomy in no way implies that the EU and its law are euro-centric and that the Court of Justice seeks to insulate EU law from external influences by building legal walls that prevent the migration of ideas. On the contrary, autonomy enables the Court of Justice to strike the right balance between the need to preserve the values that we Europeans cherish and wish to preserve for future generations and the ‘esprit d’ouverture’ that inspired the authors of the Treaties when learning vital lessons from the past and more particularly from the ravages of World War II. Accordingly, the autonomy of EU law has, as part of its very DNA, the idea of engaging in a balancing exercise that allows the EU to find its own constitutional space whilst interacting with the Member States and the wider world.

NOTE