Opinion 2/13 and the ‘elephant in the room’: A response to Daniel Halberstam

von Sionaidh Douglas Scott

Daniel Halberstam’s challenging paper is one of the first to provide a more sympathetic interpretation of the European Court’s Opinion 2/13. Halberstam’s paper is full of detail, a close-knit and sophisticated investigation of the rather technical and recondite Court Opinion. I do not agree with everything he writes, and I cannot in this short post do justice to the complexity of Halberstam’s article. Instead, I will focus on a couple of issues.

Autonomy

By the very title of his paper, Halberstam signals a central concern of the Court’s Opinion – autonomy. Indeed, the word ‘autonomy’ is used 17 times in the Opinion, including in a section entitled, ‘The specific characteristics and the autonomy of EU law’.

Autonomy is clearly a significant concept in EU law – but how should we understand it? How does the CJEU interpret it? This proves to be somewhat elusive. In spite of its apparent importance, the Court has only infrequently in its past caselaw explicitly mentioned the concept of autonomy – in around 10 cases by my reckoning. Of course, we can trace its earliest uses back to 1964 and the Costa v ENEL case, the French language version of which describes the EEC treaty as ‘une source autonome,’ (the word is not used in the English version). In Costa, the Court used the concept of autonomy to argue for the primacy of EU law over national law, stressing also the EU as ‘an independent source of law’, which did not derive from national law. However, it went to no great lengths to define what it meant by autonomy. Beyond this, in the external field, the CJEU has used autonomy to define the EU’s relationship with international law. In Opinion 1/91, on the first EEA agreement, the Court proclaimed the constitutional character of the EU, asserting that this constitutional nature distinguished it from international law ...

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