1 - Autonomy of EU Law

Question 1

How is autonomy approached within the EU legal order?

Answer 1

As a fundamental constitutional concept

Question 2

What is the autonomy of the EU legal order? (2)

Answer 2

1/ no single answer

2/ pluralism among opinions

Question 3

What is the narrative of the CJEU regarding autonomy? (4)

Answer 3

1/ autonomy of EU legal order is absolute

2/ EU legal order is autonomous, self-sufficient, self-referential and dualist

3/ importance of preliminary ruling procedure

4/ autonomy essential for effectiveness of EU legal order

Question 4

How does the CJEU support its reasoning regarding autonomy? (3)

Answer 4

1/ EU treaties are not just international agreements btwn MS but also btwn the peoples of EU MS

2/ which creates a direct link btwn EU and individuals

3/ see Van Gend en Loos (1963) and doctrine of direct effect

Question 5

Main contributions of Van Gend en Loos (1963)? (5)

Answer 5

1/ doctrine of direct effect

2/ ‘EU constitutes a new legal order of IL’

3/ subjects of this new legal order are MS and their nationals

4/ nationals of MS therefore have obligations & rights

5/ litigants can directly invoke those rights where they are violated by MS (if 3 conditions are fulfilled)

Question 6

According to Van Gend en Loos, what are the 3 conditions for an EU provision to have direct effect?

Answer 6

1/ clear

2/ sufficiently precise

3/ offers an unconditional right

Question 7

Main contributions of Costa v ENEL (1964)? (2)

Answer 7

1/ doctrine of primacy

2/ when national law and EU law conflict, EU law trumps national law

Question 8

What were VGL and Costa v ENEL mainly focused on? (2)

Answer 8

1/ independence of EU from national law

2/ thus, CJEU can shape concepts of EU law independently from concepts of national legal orders

Question 9

How can the ECJ’s practice in VGL and Costa be defined? (2)

Answer 9

1/ legal construction to rein in MS

2/ circular reasoning

Question 10

What did Opinion 2/13 (‘EU Accession to the ECHR’) emphasize?

Answer 10

Importance of preliminary ruling procedure (cannot be interfered with)

Question 11

According to CJEU in Opinion 2/13, what is the object of the preliminary reference procedure? (2)

Answer 11

1/ secure uniform interpretation of EU law

2/ which in turn ensures consistency, full effect, autonomy and the particular nature of EU law

Question 12

Main contribution of Komstroy (2021)? (3)

Answer 12

1/ recalls that an int. agreement cannot affect the allocation of powers laid down by EU Treaties

2/ intra-EU application of the ECT’s investor-State DSM is therefore incompatible with EU law

3/ this was a question approached as one about the autonomy of EU law

Question 13

What article allows the CJEU to give an opinion on whether a draft agreement is compatible with EU law?

Answer 13

Article 218(11) TFEU

Question 14

What is the reasoning supporting the CJEU’s findings in Komstroy? (2)

Answer 14

1/ institutional and substantive questions cannot be solved by external quasi-judicial bodies

2/ bc the CJEU must have the last word on the interpretation of EU law

Question 15

What is a big point of uncertainty left by Komstroy?

Answer 15

The fact that the ECT may require MS to comply with arbitral mechanisms in their relations with investors from 3rd States

Question 16

What is the basic infrastructure of autonomy? (3)

Answer 16

1/ primacy

2/ direct effect

3/ judicial enforcement

Question 17

What does the basic infrastructure of autonomy allow?

Answer 17

The effectiveness of EU law and integration

Question 18

What are some of the differences btwn EU law and PIL? (6)

Answer 18

1/ ascending (PIL) v. descending (EU) reasoning

2/ constitutionalisation of EU law

3/ differentiated relevance of consent and State practice

4/ in EU, law is purpose of integration

5/ EU has rule-based multilateralism as an objective

6/ the EU legal order is Court-centric

Question 19

What are some criticisms of autonomy? (4)

Answer 19

1/ value commitment (destination of ‘ever closer EU’)

2/ various cultural choices

3/ fundamental rights (& other legal principles limiting integration)

4/ democratic legitimacy

Question 20

Why is autonomy of EU legal order relevant? (4)

Answer 20

1/ effectiveness as a distinctive characteristic

2/ low facticity of EU law

3/ pluralist legitimacy

4/ constitutional order

Question 21

What are the 2 categories of limits of autonomy?

Answer 21

1/ legal limits

2/ political limits

Question 22

What are concrete examples of limits of autonomy? (4)

Answer 22

1/ separation of powers

2/ political constraints on judicial powers of CJEU

3/ legal limits on the integration of EU law

4/ potential counter limits set up by national courts (?)

Question 23

How does the PSPP ruling (2020) affect the autonomy discourse of CJEU? (4)

Answer 23

1/ ruled that ECB decisions exceeded EU competences

2/ doctrine of ultra vires acts

3/ didn’t refer matter to CJEU

4/ considered as an instance of “biting”

Question 24

Where and why does autonomy concern of CJEU become particularly apparent? (1(a,b) & 2 (a,b))

Answer 24

1/ internally (with regard to MS)

1a essentially contested autonomy

1b counter-narratives of national constitutional courts

2/ externally (with regard to other legal orders)

2a international courts and tribunals

2b one common conceptual frame of reference

Question 25

Main contribution of CETA Opinion (2019)?

Answer 25

Mechanism for settlement of investor-State disputes within CETA Agreement found to be compatible with EU Treaties and CFR

Question 26

Key elements supporting reasoning of CJEU in CETA Opinion? (4)

Answer 26

1/ pcple of autonomy of EU law

2/ general pcple of equal treatment

3/ pcple of effectiveness

4/ right of access to an independent tribunal

Question 27

Main contribution of Brunner et al judgment (1993)? (3)

Answer 27

1/ German CC asserted its power to review whether acts adopted by EU institutions remained within limits of EU competence

2/ doctrine of ultra vires acts

3/ doctrine undermines exclusive competence of CJEU to review compliance of EU legal acts with Treaties

Question 28

What explains the apparent failure of national gvts to respond more forcefully to early ECJ rulings? (3)

Answer 28

1/ different time horizons and focus of politicians v. judges

2/ ECJ’s strategy (playing off short time horizons of political actors)

3/ shifting the context of gvts by forcing them to play by the legal rules of the game

Question 29

Why did national gvts not reassert control in light of dvpt case-law regarding autonomy? (3)

Answer 29

1/ unsuccessful attempts to stop national courts from accepting EU law supremacy (they like preliminary reference procedure)

2/ institutional constraints to redefining the CJEU’s mandate

3/ credibility gap which renders it difficult to influence ECJ decision-making

Question 30

Why is primacy of EU law (Costa v. ENEL) necessary? (2)

Answer 30

1/ uniformity

2/ legal stability

Question 31

What are challenges resulting from constitutional pluralism within the EU? (4)

Answer 31

1/ fundamental rights

2/ ultra vires doctrine

3/ constitutional identity

4/ democracy

Question 32

What are the solutions to instances of conflict btwn EU legal order and national legal orders? (2)

Answer 32

1/ embrace doctrine of absolute primacy of EU law

2/ political solutions

=> it seems impossible to resolve this solely from a legal point of view

Question 33

Can EU accede to int. treaty regimes whereby it subjects itself to binding legal regime with their own judicial bodies? (3)

Answer 33

1/ yes with substantive ‘but’

2/ external judicial bodies cannot interpret EU law in a way that is binding on EU institutions

3/ external judicial bodies cannot undermine essential characteristics of EU law (preliminary ruling, final word of CJEU to interpret EU law)