Autonomy now?! A brief response to Daniel Halberstam

von Tobias Lock

I read Daniel Halberstam’s eloquent and erudite defence of Opinion 2/13 with great interest and I agree that (some of) the Court’s arguments can be rationally explained. What struck me about his piece, however, is that while it is centred on the concept of autonomy, he doesn’t seem to regard it necessary to provide us with a definition of it. In order to mount an effective defence of the Court’s position, it would have surely been a good starting point to defend the Court’s conception of autonomy as expressed in the Opinion.

I think that this conception is at the core of the concerns that many of the Court’s critics have voiced. In other words, the question is what autonomy we are talking about. It seems to me as though with Opinion 2/13 the Court has tightened the screws on the autonomy concept quite a bit. In order to demonstrate this, it is perhaps worth recalling that in Opinion 1/00 the Court defined the external aspect of autonomy thus:

Preservation of the autonomy of the Community legal order requires therefore, first, that the essential character of the powers of the Community and its institutions as conceived in the Treaty remain unaltered … Second, it requires that the procedures for ensuring uniform interpretation of the rules of the […] Agreement and for resolving disputes will not have the effect of binding the Community and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law referred to in that agreement. (at paras 12 and 13)

According to this, autonomy means that an international court must not be given jurisdiction to render internally binding interpretations of EU law. It does not say here that it must not consider EU law at all. Rather it is about the power to interpret European Union law in an authoritative manner.

Opinion 2/13 seems to extend this notion quite considerably ...

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