It’s a stupid autonomy…

Risking further escalation of the rhetorical contest over a more catchy title, I would like to comment on Daniel Halberstam’s analysis of the ECJ’s Opinion 1/13 from a wider perspective. I would like to try to challenge the starting assumption which Daniel (and in fact also the commentators who were critical of the Opinion) makes – that the EU has a federal constitutional order, whose autonomy deserves the protection required by the ECJ. It is also because that no matter how much I find Daniel’s technical legal analysis insightful, I do not think the core issue concerns the doctrinal level.

It is true that it was the Member States that put the Court in front of a seemingly irresolvable dilemma: to take the obligation to accede to the Convention seriously (Article 6 (2) TEU) on the one hand, while at the same time requiring that ‘the specific characteristics of the Union and Union law’ are preserved (Protocol No 8) on the other. One can raise a technical argument already here, suggesting that the Protocol does not really mean all specific characteristics of EU (including its systemic principles of direct effect and primacy, which guarantee the autonomy of EU law), but is concerned mainly with the division of competences between the EU and the Member States – firstly when it comes to the EU’s participation in the control bodies of the European Convention and secondly as regards their respective standing before the ECHR. But again, a doctrinal argument can be left for a proper legal analysis (which I do not want to attempt in a blog post).

I would like to focus on the autonomy of EU law – which explains, as the title of Daniel’s paper, everything. It may be the case – but does it also justify it?

I do not think so. The reason is, well, what is behind the autonomy argument ...

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