The Autonomy Paradox

von Thomas Streinz

Daniel Halberstam’s “constitutional defense” of Opinion 2/13 is certainly thought-provoking, but it ultimately fails to convince. By taking on the seemingly impossible task of defending the indefensible, Daniel allows us to see more clearly what’s really wrong with the Court’s view. However, he mischaracterizes the Court’s many critics by alleging that “they rushed to embrace Strasbourg while forgetting about the constitutional dimension of EU governance along the way”. Criticism of Opinion 2/13 is grounded in more than amnesia about the distinctive character of EU constitutionalism. Rather, the true problem is precisely the Court’s interpretation of the EU’s constitutional order: it ignores the fact that accession is a constitutional requirement and engages in cherry-picking when it comes to the relationship between EU law and international law. To move accession forward, we need to unpack what I call the “autonomy paradox.”

Accession is a constitutional requirement

The EU’s constitutional order is founded on the EU Treaties. Article 6(2) of the Treaty on European Union (TEU) is an intrinsic part of this constitutional order and deserves to be taken seriously. In a bold, but carefully considered, move, the Member States decided to make accession of the EU to the ECHR mandatory in the Treaty of Lisbon. The Opinion of the Court of Justice completely ignored this unique feature. In all other cases in which the Court has had to opine on the compatibility of a contemplated agreement with EU law, there was no legal obligation to enter into an international agreement in the first place. Accession to the ECHR is different: a commandment to accede has been built into the foundational instrument of the EU order, subject to the conditions posed in Protocol No. 8, most notably the preservation of “the specific characteristics of the Union and Union law”. Daniel applaudes the Court for protecting the EU’s constitutional order ...

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