56
Ingolf Pernice
Deuxième séance de travail — Les retombées
full effect to the terms and objectives of the constitutional foundations of the
European Community – and the Court rightly did so.
The subject of the present contribution is ‘the autonomy of the EU legal or-
der’ as it results from the jurisprudence of the ECJ since
Van Gend
. Admittedly,
the Court had not used this term prior to
Costa
v
ENEL
one year later (
3
). But
when it spoke in
Van Gend
about a ‘new legal order of international law’, the
seed for developments of great impact was already set. And it has extended
the application of the principle to defend the European legal order not only
against internal challenges from Member States but also from those created
by international agreements of the Union.
Discussing autonomy of the European legal order in the light of the
jurisprudence of the ECJ is not only of academic interest. At least under three
aspects the concept seems to be of great practical relevance today as well.
The first is the accession of the European Union to the European
Convention on Human Rights. Would the autonomy of the EU legal order
be at risk if the EU was a party to the Convention with the consequence that
judgments of the ECJ are subject to review by the European Court of Human
Rights?
The second question is related to the bilateral investment agreements.
Bilateral investment agreements among Member States as well as with third
countries contain arbitration-clauses under which final awards are given even
regarding questions of European law. Is the autonomy of the European legal
order at risk if the ECJ has no opportunity to give a ruling on the interpreta-
tion or validity of the EU law at stake?
A possible threat to the autonomy of the European legal order are the pro-
ceedings pending before the German Federal Constitutional Court (GFCC)
on the powers of the European Central Bank to announce an unlimited
(
3
) ECJ Case 6-64
Costa
v
ENEL
[1964] ECR 585 (English special ed.) . Although is true only for
the German and French, but not the English translation, which speaks of an ‘independent
source of law’, the ideas of autonomy and independence carry a similar meaning, at least as
regards the relationship between the legal order of the EU and that of its Member States. For
this interpretation see Pierre Pescatore,
Van Gend en Loos, 3 February 1963 – A View from
Within
, in: Miguel Poiares Maduro and Loic Azulai (eds.), The Past and Future of EU Law.
The Classics of EU Law Revisited on the 50
th
Anniversary of the Rome Treaty, 2010, p. 3,
5: ‘…that the autonomy is already strongly emphasised in the ruling of the Court, where it
reads‚ community law, independent of Member State legislation’.
