What is the Autonomy of eu Law, and Why Does that Matter?

Abstract

This article argues that the autonomy of eu law conveys a set of rules and principles but also constitutes a principle of eu law on its own terms. Its features suggest a distinctive existential character, in light of its internal and external reach but, particularly, a quality of extremity that has come to define its implications. Reflecting on the nature of autonomy matters because of the closing down of space for compromise it produces and what is uncovered about the nature of eu primary law in consequence. The effects of autonomy have principally concerned the jurisdiction of the Court of Justice, but the wider focus on autonomy of “Union decision-making” as a “core principle” of Brexit negotiations, for the eu part, reactivates a more generalised understanding of what the principle commands. That process also tests the extent to which an understanding of autonomy as an existential principle should be sustained.

Third Country Influence on EU Law and Policy‐making: Setting the Scene

“…We do this by considering the justifications for restricting third country participation in the making of EU law and policies, the consequences of such inclusion and the consequences of exclusion on the Union's legal and political order. From a legal‐constitutional perspective, the question of third country influence confronts the principles of sovereignty (Bellamy, 2017; Fassbender, 2003; Pescatore, 1974; Weiler, 1991), autonomy (Koutrakos, 2019; Öberg, 2020; Odermatt, 2018) and mutual trust (Brouwer and Gerard, 2016; Lenaerts, 2017; Nic Shuibhne, 2019). Participation in the decision‐making processes is a means of compensating the EU member states for the costs of membership – the pooling of sovereignty, mutual trust and the risk of future developments of EU integration, which are beyond the control of individual member states.…”

“…The participation of third countries in the EU's structures, programmes and policies, and their adoption of EU norms, is increasingly studied alongside the EU's internal differentiation under the notion of ‘external differentiated integration’ (Lavenex, 2011, 2015; Schimmelfennig and Winzen, 2020). The UK's withdrawal from EU membership has moved the country into this category of deeply interdependent third countries, giving new urgency to the search for sustainable arrangements that foster association whilst preserving the autonomy, or ‘self‐rule’ (Nic Shuibhne, 2019), of both parties. An increasingly challenging geopolitical context including Putin's war against Ukraine, new East–West antagonisms and mounting transnational challenges such as the fight against climate change, migration policy and energy supply have added to the importance of exploring flexible solutions to sustain partnerships with associated countries.…”

Friend Zone Forever? The Essence of and Justifications for the EU's Decision‐Making Autonomy

“…808–809), can be shared by acceding and associated countries, as well as withdrawing member states where the formal guarantees are either not yet applicable, possibly not applicable to a sufficient degree, or no longer applicable. The privileged membership status upholds the EU's decision‐making autonomy whilst preserving the direct influence on EU law and policies for the truly committed (Nic Shuibhne 2019, p. 38).…”