Autonomy of the EU legal order - a general principle? on the risks of normative functionalism and selective constitutionalisation

Abstract

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) meta-teleological 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.