European Union Law: How Autonomous is its Legal Order?

In its recent Kadi judgment, the ECJ insisted on the autonomy of the Community legal system, stating with reference to the Charter of the United Nations that ‘an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system’. The reference to the autonomy of the Community system in its relation to international law echoes much older references in the European Court’s case law to the autonomous nature of Community law in relation to the law of its member states. The most famous reference of the latter type occurred already back in 1964, in the Costa v ENEL judgment in which the Court held that: ‘issu d’une source autonome, le droit né du traité ne pourrait donc, en raison de sa nature spécifique originale, se voir judiciairement opposer un texte interne quel qu’il soit, sans perdre son caractère communautaire et sans que soit mise en cause la base juridique de la Communauté même.’ The introductory part of this sentence was later translated in English as follows: ‘The law stemming from the Treaty, an independent source of law, could not …’, whereby the French term autonome was rather unfortunately translated as independent. A very similar formula (again using autonome in French and independent in English), was used some years later in the Internationale Handelsgesellschaft judgment. In both cases, the invocation of the autonomy of the Community legal order was related to the affirmation, by the Court, of the primacy of EC law over conflicting rules of national law.
In legal writing, this double claim for autonomy – with respect to international law and with respect to the national law of the member states – is sometimes given a farreaching meaning. In particular, it has been argued that Community law’s autonomy from international law went so far that it was no longer part of international law, even though it may have been international law at its origin; and that Community law is no longer dependent on national legal orders for its validity and application at the domestic level. In fact, however, the European Court of Justice itself has not made such bold claims, and an examination of the evolution of European law shows that it is more realistic, and legally more appropriate, to propose a more modest reading of the claim for autonomy of the Community legal order: the autonomy of EU law is not absolute but relative; it does not mean that EU law has ceased to depend, for its validity and effective application, on the national law of its member states, nor that it has ceased to belong to international law.
The reader may have noticed a slippage, in the preceding paragraph, from the term ‘European Community’ to the term ‘European Union’. This slippage alerts to the legal change that has taken place on 1 December 2009, when the legal life of the European Community ended through its absorption of the European Union. Therefore, earlier discussions about the nature and degree of autonomy of the Community legal order must, from now on, be conducted in terms of the autonomy of the European Union legal order. This is not a simple name change. The European Union, today, is not just the successor of the European Community, as is stated in the final sentence of the new Article 1 EU Treaty: it also continues the legal existence of the European Union as it existed prior to 1 December 2009. The European Union, which used to be a separate organization though closely related to the European Community, has now absorbed the EC and the legal nature of the re-styled European Union is marked by the different characteristics of the two pre-existing organizations which were merged by the Lisbon Treaty. This hybrid nature of the ‘new’ European Union must be taken into account, when reflecting on the question of the autonomy of the European Union legal order in the new light of the Lisbon Treaty.
In view of the limited space for this article, and in view also of the overall content of this special issue, the emphasis will be on the meaning of the autonomy of EU law in its external dimension, that is its relation to (the rest of) international law. We will approach that question by first emphasizing the seemingly obvious, namely that EU law emerged as a construct of international law and remains based on international treaties (Sect. 2); we will then critically discuss the widely shared view that, despite this international law pedigree, EU law has actually ceased to be part of international law (Sect. 3); after having thus ‘cleared the ground’, we will then examine the proper meaning that should, in our view, be attributed to invocations of the autonomy of the EU legal order in relation to the rest of international law (Sect. 4).