Simona Pescaru 28.05.

2021
Student number: 12693898

Final Assignment
Essay topic 2- Principle of autonomy

I. Introduction

The principle of autonomy in EU law and its internal and external dimensions are

raising many controversies nowadays. In order to protect the EU legal order, the Court of

Justice tends to interpret this principle as a distinct legal order from both international law

and Member States legal orders. Positive and negative aspects exist regarding this curious

interpretation. My essay will analyse how autonomy affects the EU external action, based on

Jed Odermatt’s argumentation that autonomy can also impede the ability of the EU to act on

the international plane. It is important to analyse EU’s autonomy and how protective is the

Court of Justice when it comes to guarding the EU legal order.

This paper concerns the question whether the fundamental human rights are neglected

or protected by the CJEU and its judicial monopoly. The accession of the EU to the

European Convention on Human Rights raised many questions about how autonomy works

and what relation will exist in between CJEU and ECtHR. Defending the fundamental rights

may be considered as one of the starting points for these communal actions and institutions.

In my opinion, the Court of Justice tends to guard its own autonomy, but it is necessary to

protect the EU legal system.

In section II, I explain the main negative and positive aspects of the Court’s

interpretation of the principle of autonomy. In section III, I argue why this is problematic

regarding human rights protection and in section IV, I will briefly summarise my points in a

conclusion.

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Simona Pescaru 28.05.2021
Student number: 12693898
II. Principle of autonomy and its interpretation

In various occasions, the Court of Justice had various interpretations on how the

principle of autonomy shall be preserved. The fact that the EU legal order should be seen as a

different legal order from the international and national law represents a starting point for

many positive and negative consequences. Simultaneously with the CJEU rulings, the

principle of autonomy is still developed.

a) Positive aspects

The first positive aspect of the Court’s interpretation on autonomy is that the EU

receives the facility to act on the international plane as a distinct actor1. In the international

legal order, it is a productive development for international organizations to act autonomous.

Indeed, the EU has exclusive areas of competences and as long as the EU does not subtract

the national values from the Member States2, it is still a development that makes the

European countries stronger together and provides them the chance to have a more valuable

opinion at international level. In this way, the EU succeeds to have a dominant position

globally, along with countries such as the U.S.A, China and Russia. Moreover, the

sovereignty of the EU on the international plane is a positive aspect.

Secondly, in the MOX Plant3 judgment, the CJEU ruled that the proceedings before an

arbitration tribunal can interfere with the Treaties and consequently affect the autonomy of

1
Jed Odermatt, “The principle of autonomy: An Adolescent Disease of EU External Relations Law?” in
Structural Principles in EU External Relations Law, ed. Marise Cremona ( Oxford: Hart Publishing,
2018) p. 291-316.

2
Andrew Guzman, ‘International Organizations and the Frankenstein Problem’, European Journal of
International Law 24, no.4 (2013): 999.

3
CJEU, Case C-459/03, Commission of the European Communities v. Ireland, ECLI:EU:C:2006:345 ( 30 May
2006).

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Simona Pescaru 28.05.2021
Student number: 12693898
the Community legal system4. This statement underlines the necessity to safeguard the

Community and its internal values. It can be seen as an empowerment of the Union to act for

the best interests. As long as there is not an interference caused by an international

arbitration, then the principles of the Union and its goals will remain at core.

Thirdly, in international relations, the autonomy concept provides for the European

Union an ability to claim rights that are usually associated with State sovereignty: the

supreme value of the EU law within its jurisdiction, the ability of its courts to support the

Community law (even when it conflicts with international norms and when those norms are

undermining the domestic legal order)5. The EU law nature consist in autonomy and federal

characteristics. It is a positive aspect on the international plane: the EU considered to be more

than an international organization, it has its own internal rules and institutions.

b) Negative aspects

In the same time, a negative dimension arises from the Court’s interpretation on

autonomy. The “closed door” policy of the EU might lead to international exclusion. The

Court’s focus, as argued by Jed Odermatt, is to protect the EU legal order from external

threats (international law)6. Following Opinion 2/137 and the accession to ECHR, a milestone

was added regarding autonomy and EU legal order at international level. According to Article

6(2) TEU, the EU cannot join an agreement which can affect the EU competences and its
4
CJEU, Case C-459/03, Commission of the European Communities v. Ireland, ECLI:EU:C:2006:345 ( 30 May
2006), para. 154

5
Christina Eckes, EU Autonomy: Jurisdictional Sovereignty by a Different Name?, European Papers 5, no. 1
(2020): 326.

6
Jed Odermatt, “The principle of autonomy: An Adolescent Disease of EU External Relations Law?” in
Structural Principles in EU External Relations Law, ed. Marise Cremona ( Oxford: Hart Publishing,
2018) p. 300

7
CJEU, Opinion 2/13, Draft Agreement on Accession of the European Union to the ECHR,
ECLI:EU:C:2014:2454 (18 December 2014).

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Simona Pescaru 28.05.2021
Student number: 12693898
judicial order. Opinion 2/138 established the co-respondent mechanism and the European

system of norms remains safeguarded by the Court of Justice. The Court delayed the process

of accession of the EU to the ECHR to preserve its autonomous position and the autonomy of

the EU legal order. This approach of autonomy may start out of good intention, but it can

quickly undermine the European goals such as becoming an effective and powerful global

actor since it might have made it more challenging for the EU to join international

agreements9.

In such manner, an idea which emerged from a good intention to safeguard the EU

legal order and consider it distinct, can also lead to a loss on the international plane for the

Member States and the EU external relations.

Moreover, a negative dimension of autonomy might be the complex accession of EU to

international agreement in general. Opinion 1/0010 established two conditions that must be

met beforehand when joining an international agreement: the rules of an agreement will not

have the effect of binding the Community and its institutions in the exercise of their internal

power to a particular interpretation of the rules of Community law11, but also the preservation

of the autonomy of the Community requires that essential character of the powers of the

Community and its institutions remain unaltered.12 These two requirements might lead to a

difficult process on the international plane for joining an agreement and it can be seen as an

8
CJEU, Opinion 2/13, Draft Agreement on Accession of the European Union to the ECHR,
ECLI:EU:C:2014:2454 (18 December 2014).

9
Tobias Lock, ‘The Future of the European Union’s Accession to the European Convention on Human Rights
after Opinion 2/13: is it Still Possible and is it Still Desirable?’, European Constitutional Law Review 11, no. 2
(2015): 239, 255.

10
CJEU, Opinion 1/00, ECLI:EU:C:2002:231 (18 April 2002).

11
CJEU, Opinion 1/00, ECLI:EU:C:2002:231 (18 April 2002), para. 13

12
CJEU, Opinion 1/00, ECLI:EU:C:2002:231 (18 April 2002), para. 12

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Simona Pescaru 28.05.2021
Student number: 12693898
impediment on long term. The EU follows its own policies and Treaties which are harder to

be integrated internationally comparing to a regular agreement in between countries not

bounded by the Community rules.

III. Human rights protection and the Court’s interpretation of the principle of

autonomy

The autonomy of EU law led to the exclusive jurisdiction of the Court of Justice.

Article 344 TFEU implies that Member States shall not submit interpretation requests of the

Treaties to other settlement than the ones provided for therein. Article 33 ECHR implies that

any contracting party can refer to ECtHR any breach of ECHR made by another contracting

party. It might be said that both CJEU and ECtHR are overlapping. The accession of the EU

to the European Convention on Human Rights raised many questions about the autonomy of

EU law and also about relation in between the Courts. One important question relates to the

binding effect that the decisions of the ECtHR might have. Opinion 1/9113 dealt with this

issue on the EEA Treaty and the EEA Court jurisdiction disputes. This Opinion points out

that the recognition of a binding effect of decisions of the ECtHR does not undermine the

jurisdiction of the CJEU and it does not confer the ECtHR a “supreme authority”14. The EU

Courts shall consider the judgments of the ECtHR binding as long they rule within the limits

of the ECHR and possible violations of it. The judgments must be binding due to the fact that

they determine the correct understanding of the ECHR, which it is itself a part of the EU

13
CJEU, Opinion 1/91, Draft agreement on the creation of the European Economic Area, ECLI:EU:C:1991:490
(14 December 1991).

14
Piet Eeckhout, Human Rights and the Autonomy of EU Law: Pluralism or Integration?, Current Legal
Problems 66, no.1 (2013): 186. 

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Simona Pescaru 28.05.2021
Student number: 12693898
legal order and binding upon the EU institutions15. On the other hand, the CJEU ruling is not

binding for the ECtHR16. ECtHR cannot decide on matters of EU competence, fact which

possibly might led to cases that are unable to be judged by other supreme courts other than

the Court of Justice.

Both CJEU and ECtHR might rule on similar issues or on the exact same case when it

comes to inter-state disputes, but also individual cases17. Their competing competences might

lead also to contradictory judgments, but when it comes to the protection of fundamental

rights, the best interest of the individual involved shall be the most important. The collision

of competences between CJEU and ECtHR can lead to a scenario where both Courts

judgments for the same case will result in a different outcome18. The autonomy of the EU

legal system can lead to a safe net of fundamental rights protection, but indeed it might also

have reversed effects and become an impediment. For example, the Courts can enhance

fundamental rights protection in the European Union: the CJEU judgment from N.S.19 has

complemented the judgment M.S.S. v Belgium and Greece20 of the ECtHR21. The competence

of both Courts to rule and safeguard the fundamental rights can in this way be seen as

something beneficial for both parties.

15
Piet Eeckhout, Human Rights and the Autonomy of EU Law: Pluralism or Integration?, Current Legal
Problems 66, no.1 (2013): 199. 

16
CJEU, Opinion 2/13, Draft Agreement on Accession of the European Union to the ECHR,
ECLI:EU:C:2014:2454 (18 December 2014), para.185

17
Johannes Morijn, ‘After Opinion 2/13: how to move on in Strasbourg and Brussels?’, Eutopia law (2015): 8.

18
CJEU, Opinion 2/13, Draft Agreement on Accession of the European Union to the ECHR,
ECLI:EU:C:2014:2454 (18 December 2014), para.185

19
CJEU, Joined Cases C-411/10 and C-493/10, N.S. v United Kingdom and M.E. v Ireland,
ECLI:EU:C:2011:865 (21 December 2011).

20
ECtHR, Application no. 30696/09, M.S.S v. Belgium and Greece, ECLI:CE:ECHR:2011:0121JUD003069609
(21 January 2011).
21
Alexandros-Ioannis Kargopoulos, ‘ECHR and the CJEU’, Eucrim, no.3 (2015): 96-100.

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Simona Pescaru 28.05.2021
Student number: 12693898
Meanwhile, the risk of different rulings for the same case might occur. For example, on

the international plane, when it comes to refugees and Asylum policy (see judgment X and X

v. État belge22), the Court of Justice can also abuse its autonomy and judicial monopoly

without any regards to human rights. The ECtHR might have seen the case in a different

light, but rulings alike X and X23 tend to increase the illegal immigration. Also, in external

relations EU law, asylum seekers and illegal migrants remain a big priority and a very

fluctuating area. Was this the case of an abuse of autonomy and selfishness? Many analysts

have seen this light of the case. The human rights protection was nowhere to be found in this

case, because after the legal path, migrants will also try the illegal one, just in order to get

close to a European border. This situation can cause international conflicts in between EU

and other countries. Fundamental rights shall be guarded with any price by the Court, but the

case for a ruling to be strictly based on “cold” legal facts might exist. Is there any

consequence on the international plane for such cases? Tensions in between states, lives of

people lost on the sea with the dream of living in Europe, strict interpretation of EU law in

judgments, all of these factors can impede the effectiveness of the EU’s external action. In

order to protect the EU legal order and its autonomy, the Court of Justice can have the

tendency to skim through fundamental rights protection. The judicial monopoly of the Court

represents one decisive factor in this case concerning fundamental rights and migration.

IV. Conclusion

Given these points, the autonomy of the EU legal order and its interpretation by the

Court of Justice have both positive and negative aspects. The ability of the EU to act on the

international plane might be affected by the principle of autonomy, but it can also be

strengthened. Personally, I agree with Jed Odermatt’s point of view on the one side, that the

22
CJEU, Case C-638/16 PPU, X and X v. État belge, ECLI:EU:C:2017:173 (7 March 2017).
23
CJEU, Case C-638/16 PPU, X and X v. État belge, ECLI:EU:C:2017:173 (7 March 2017).

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Simona Pescaru 28.05.2021
Student number: 12693898
EU tends to be scared of external factors and to join international agreements which might

represent a turning point for the internal legal order. On the other side, without the principle

of autonomy, the European Union would not have the same external power and international

relations. The fundamental principles such as autonomy constructed the “fortress” of today,

which holds together different cultures and countries for bigger common goals and values.

Even without cleared defined boundaries, the principle of autonomy tends to protect the

values and the independence of the EU on the international plane. I would say that Jed

Odermatt’s affirmation that “autonomy undermines many of the principles it seeks to

protect”24 it has its own truth. Indeed, as shown in the previous section, the fundamental

rights might be neglected by the CJEU on long term and it can also lead to international

conflicts.

In this moment, it is hard to anticipate a policy change able to fix the gaps of the

autonomy principle at international level. More integration on the international plane is

needed, the EU cannot isolate itself from international agreements and negotiations.

2234 words

Bibliography

24
Jed Odermatt, “The principle of autonomy: An Adolescent Disease of EU External Relations Law?” in
Structural Principles in EU External Relations Law, ed. Marise Cremona ( Oxford: Hart Publishing,
2018) p. 316.

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Simona Pescaru 28.05.2021
Student number: 12693898
1. CJEU, Case C-459/03, Commission of the European Communities v. Ireland,
ECLI:EU:C:2006:345 ( 30 May 2006).

2. CJEU, Case C-638/16 PPU, X and X v. État belge, ECLI:EU:C:2017:173 (7 March

3. CJEU, Joined Cases C-411/10 and C-493/10, N.S. v Secretary of State for the Home
Department and M.E. and Others v Refugee Applications Commissioner and
Minister for Justice, Equality and Law Reform, ECLI:EU:C:2011:865 (21 December
2011).

4. CJEU, Opinion 1/00, Proposed agreement between the European Community and
non-Member States on the establishment of a European Common Aviation Area,
ECLI:EU:C:2002:231 (18 April 2002).

5. CJEU, Opinion 1/91, Draft agreement between the Community, on the one hand, and
the countries of the European Free Trade Association, on the other, relating to the
creation of the European Economic Area, ECLI:EU:C:1991:490 (14 December
1991).

6. CJEU, Opinion 2/13, Draft Agreement on Accession of the European Union to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, ECLI:EU:C:2014:2454 (18 December 2014).

7. ECtHR, Application no. 30696/09, M.S.S v. Belgium and Greece,

8. Eckes, Christina. EU Autonomy: Jurisdictional Sovereignty by a Different Name?,

9. Eeckhout, Piet. Human Rights and the Autonomy of EU Law: Pluralism or

10. Guzman, Andrew. ‘International Organizations and the Frankenstein Problem’.

11. Kargopoulos, Alexandros-Ioannis. ‘ECHR and the CJEU”, Eucrim, no.3 (1 August
2015): 96-100.

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Simona Pescaru 28.05.2021
Student number: 12693898

12. Lock, Tobias. ‘The Future of the European Union’s Accession to the European
Convention on Human Rights after Opinion 2/13: is it Still Possible and is it Still
Desirable?’, European Constitutional Law Review 11, no. 2 (1 September 2015):
239-273.

13. Morijn, Johannes. ‘After Opinion 2/13: how to move on in Strasbourg and
Brussels?’, Eutopia law (2015).

14. Odermatt, Jed. “The principle of autonomy: An Adolescent Disease of EU External

10