University of Amsterdam
PRINCIPLES AND FOUNDATIONS OF EU LAW
INTERNATIONAL AND EUROPEAN LAW
2024-2025
, 1. AUTONOMY OF EU LAW
Nature of EU law is the principle of autonomy (= self-sufficient, validity based on self-referential)! –
Internal and external autonomy.
1.1. Internal Dimension of EU Law
Relationship of the EU law with MS [cf. Dawson & Witte (2022): CJEU as driver of it]
● CJEU perspective: on the specific characteristics of EU Law [new independent legal order]
– functional logic: justification for the effective enforcement of EU law
⇒ creation of autonomy based on primacy and direct effect which are not in Treaties but
derived from provisions in it (special characteristics of EU law from EU law itself)
○ Van Gend & Loos: direct effect → EU law in some cases (clear, precise and
unconditional) can be invoked before courts without the need of transposition into
national law [based on Art 267 preliminary reference confirming that national courts
bound by EU law]
■ New independent legal order
■ MS with limited sovereign rights
■ Obligations between MS and creation of rights and obligations for
individuals
■ Specific obligations clear and unconditional to have direct effect
⇒ enforcement of EU law by individuals + CJEU jurisdictional sovereignty
○ Costa/ENEL: primacy of EU law → cannot be overridden by national law without it
being deprived from being effective
■ Integral part of legal systems, own legal system
■ Binds states and citizens
■ Confirmed by direct effect [Art 288 TFEU]
💭 direct effect & primacy are codependent and complementary concepts! Direct effect is the
enforcement mechanism of primacy so necessary for primacy.
⇒ Uniformity (by CJEU) needed for the effective integration of the Union, once conferred
powers to EU they become delegated (not the original ones) → Treaty interpretations!
● Challenges: foundations challenged by national courts, ultimate source of authority EU law?
⇒ direct effect from national constitutions? >< from EU itself
→ constitutional pluralism (national systems with own legal system and rationale, not one
hierarchy over the other but operating at juxtaposed levels)
But challenges of this with fundamental rights, ultra vires acts, constitutional identity, democracy
○ German Constitutional Court
, ■ Brunner: GCC remains with the right to judge upon constitutional identity
matters, cannot be blank-of-check; substantial powers within GCC
- EU okay but legitimisation comes from National Parliaments still
- EU with limited powers, MS as master’s of the Treaties
⇒ setting out stage to contest EU supremacy
■ PSPP/Weiss: on EU monetary policy / economic policy? ECB introducing
programmes which were contested by MS
⇒ EU cannot act ultra vires, CJEU yes but within its jurisprudence
[agree that CJEU with jurisdictional sovereignty but still need multi-level
cooperation because otherwise it would be blank of check]
○ Polish Constitutional Court: challenging primacy of EU law (role and independence
of national judiciary)
○ Academic discourse:
■ Fragility of self-referential reasoning and functional justification
■ Pluralism as descriptive instead of explanatory theory
■ Important to understand what is behind national contestation
● Options to reverse EU power: political stakes and balancing MS and EU powers
[cf. Alter (2001): reasons on ECJ escaping MS and not able to take it back]
○ National courts not accepting EU law supremacy: but judicial independence
questioned → authoritarian
○ Non-compliance: but can be sanctioned and other MS not agreeing because threatens
internal market
○ Amending treaties: but intergovernmental treaties very risky, joint decision trap
○ Accept EU supremacy but try influence CJEU: but appointed judges too into their
position to try to influence anything in favour of national courts
○ Change secondary legislation: but affecting MS differently
⇒ CJEU: argumentation before the Court allowed
1.2. External Dimension of EU Law
Relationship of EU legal order with international law → jurisdictional sovereignty (EU as an
independent legal order with does not depend on international nor national law for its validity –
self-referential)
[cf. Eckes (2020): absolute jurisdictional sovereignty for autonomy]
EU can bind itself to international regimes with own judicial bodies BUT
● Essential characteristics of EU law not undermined: to preserve autonomy ⇒ need (1)
principle of conferral + division of powers, (2) preserve institutional framework, (3) primacy,
direct effect, (4) mutual trust / sincere cooperation, (5) fundamental rights protection
, ● No interpretation that could bind EU institutions: need uniform interpretation of EU law→
CJEU with monopoly on it
○ Opinion 2/13: accession to ECHR would breach autonomy of EU law, agreement
cannot affect allocation of powers fixed by Treaties but it does → no accession
- ECHR given advisory opinions which could undermine CJEU’s role
- Mutual trust needs MS to trust each other in protection of HR but ECHR
demands that MS check that the other is protecting human rights
- ECHR judgements and interpretation are binding on CJEU
○ Opinion 1/17 CETA: no breach because Tribunal about facts, not law → it is not
interpreting EU law but taking it as a fact + cannot undermine essential characters.
● Contestations: (1) maximalist selfish Court overprotective of its own jurisdiction, (2) difficult
criteria to understand, (3) external actors not bound by EU primacy
- BUT CJEU with absolute conceptual autonomy but relative factual autonomy!
Takeaways:
Constitutional pluralism: national systems with own system and rationale, and EU with its own as
well → both at the same level, not one over the another.
Tension in EU law: EU gettings its rights from MS giving up their sovereignty → EU thinks it cannot
take those back because new legal order, MS think it can.
Case Resolution / Application
Accession to international agreement compatible with EU law?
CETA / Accession to ECHR
1. No adverse effect to autonomy of EU law
⇒ Safeguard essential characteristics of EU law (derived from primacy and direct effect)
- CJEU cannot be subject to external control (only allowed when not adverse effects)
- Must not be binding upon CJEU
- Not impact principle of mutual trust between MS (cannot check whether violation
unless systemic risks)
2. Ensure consistent and uniform interpretation of EU law → jurisdictional sovereignty,
exclusive jurisdiction
⇒ Interpretation powers only to the provisions of international agreement
- When using EU law, taking is as matter of fact
- Following prevailing interpretation by CJEU
- Tribunal interpretation not binding to CJEU
3. Cannot prevent EU institutions from operating in accordance to EU constitutional framework
PRINCIPLES AND FOUNDATIONS OF EU LAW
INTERNATIONAL AND EUROPEAN LAW
2024-2025
, 1. AUTONOMY OF EU LAW
Nature of EU law is the principle of autonomy (= self-sufficient, validity based on self-referential)! –
Internal and external autonomy.
1.1. Internal Dimension of EU Law
Relationship of the EU law with MS [cf. Dawson & Witte (2022): CJEU as driver of it]
● CJEU perspective: on the specific characteristics of EU Law [new independent legal order]
– functional logic: justification for the effective enforcement of EU law
⇒ creation of autonomy based on primacy and direct effect which are not in Treaties but
derived from provisions in it (special characteristics of EU law from EU law itself)
○ Van Gend & Loos: direct effect → EU law in some cases (clear, precise and
unconditional) can be invoked before courts without the need of transposition into
national law [based on Art 267 preliminary reference confirming that national courts
bound by EU law]
■ New independent legal order
■ MS with limited sovereign rights
■ Obligations between MS and creation of rights and obligations for
individuals
■ Specific obligations clear and unconditional to have direct effect
⇒ enforcement of EU law by individuals + CJEU jurisdictional sovereignty
○ Costa/ENEL: primacy of EU law → cannot be overridden by national law without it
being deprived from being effective
■ Integral part of legal systems, own legal system
■ Binds states and citizens
■ Confirmed by direct effect [Art 288 TFEU]
💭 direct effect & primacy are codependent and complementary concepts! Direct effect is the
enforcement mechanism of primacy so necessary for primacy.
⇒ Uniformity (by CJEU) needed for the effective integration of the Union, once conferred
powers to EU they become delegated (not the original ones) → Treaty interpretations!
● Challenges: foundations challenged by national courts, ultimate source of authority EU law?
⇒ direct effect from national constitutions? >< from EU itself
→ constitutional pluralism (national systems with own legal system and rationale, not one
hierarchy over the other but operating at juxtaposed levels)
But challenges of this with fundamental rights, ultra vires acts, constitutional identity, democracy
○ German Constitutional Court
, ■ Brunner: GCC remains with the right to judge upon constitutional identity
matters, cannot be blank-of-check; substantial powers within GCC
- EU okay but legitimisation comes from National Parliaments still
- EU with limited powers, MS as master’s of the Treaties
⇒ setting out stage to contest EU supremacy
■ PSPP/Weiss: on EU monetary policy / economic policy? ECB introducing
programmes which were contested by MS
⇒ EU cannot act ultra vires, CJEU yes but within its jurisprudence
[agree that CJEU with jurisdictional sovereignty but still need multi-level
cooperation because otherwise it would be blank of check]
○ Polish Constitutional Court: challenging primacy of EU law (role and independence
of national judiciary)
○ Academic discourse:
■ Fragility of self-referential reasoning and functional justification
■ Pluralism as descriptive instead of explanatory theory
■ Important to understand what is behind national contestation
● Options to reverse EU power: political stakes and balancing MS and EU powers
[cf. Alter (2001): reasons on ECJ escaping MS and not able to take it back]
○ National courts not accepting EU law supremacy: but judicial independence
questioned → authoritarian
○ Non-compliance: but can be sanctioned and other MS not agreeing because threatens
internal market
○ Amending treaties: but intergovernmental treaties very risky, joint decision trap
○ Accept EU supremacy but try influence CJEU: but appointed judges too into their
position to try to influence anything in favour of national courts
○ Change secondary legislation: but affecting MS differently
⇒ CJEU: argumentation before the Court allowed
1.2. External Dimension of EU Law
Relationship of EU legal order with international law → jurisdictional sovereignty (EU as an
independent legal order with does not depend on international nor national law for its validity –
self-referential)
[cf. Eckes (2020): absolute jurisdictional sovereignty for autonomy]
EU can bind itself to international regimes with own judicial bodies BUT
● Essential characteristics of EU law not undermined: to preserve autonomy ⇒ need (1)
principle of conferral + division of powers, (2) preserve institutional framework, (3) primacy,
direct effect, (4) mutual trust / sincere cooperation, (5) fundamental rights protection
, ● No interpretation that could bind EU institutions: need uniform interpretation of EU law→
CJEU with monopoly on it
○ Opinion 2/13: accession to ECHR would breach autonomy of EU law, agreement
cannot affect allocation of powers fixed by Treaties but it does → no accession
- ECHR given advisory opinions which could undermine CJEU’s role
- Mutual trust needs MS to trust each other in protection of HR but ECHR
demands that MS check that the other is protecting human rights
- ECHR judgements and interpretation are binding on CJEU
○ Opinion 1/17 CETA: no breach because Tribunal about facts, not law → it is not
interpreting EU law but taking it as a fact + cannot undermine essential characters.
● Contestations: (1) maximalist selfish Court overprotective of its own jurisdiction, (2) difficult
criteria to understand, (3) external actors not bound by EU primacy
- BUT CJEU with absolute conceptual autonomy but relative factual autonomy!
Takeaways:
Constitutional pluralism: national systems with own system and rationale, and EU with its own as
well → both at the same level, not one over the another.
Tension in EU law: EU gettings its rights from MS giving up their sovereignty → EU thinks it cannot
take those back because new legal order, MS think it can.
Case Resolution / Application
Accession to international agreement compatible with EU law?
CETA / Accession to ECHR
1. No adverse effect to autonomy of EU law
⇒ Safeguard essential characteristics of EU law (derived from primacy and direct effect)
- CJEU cannot be subject to external control (only allowed when not adverse effects)
- Must not be binding upon CJEU
- Not impact principle of mutual trust between MS (cannot check whether violation
unless systemic risks)
2. Ensure consistent and uniform interpretation of EU law → jurisdictional sovereignty,
exclusive jurisdiction
⇒ Interpretation powers only to the provisions of international agreement
- When using EU law, taking is as matter of fact
- Following prevailing interpretation by CJEU
- Tribunal interpretation not binding to CJEU
3. Cannot prevent EU institutions from operating in accordance to EU constitutional framework
