58
Ingolf Pernice
Deuxième séance de travail — Les retombées
1. Autonomies of the European and the national legal
orders
Autonomy and primacy of EU law became intrinsic elements of the con-
cept of European law as law. Its uniform application is more than a mere con-
dition for the functioning of the Union. It is even a condition to guarantee
equality before the law, as we find it in Articles 9 TEU and 20 of the Charter on
Fundamental Rights (
6
). According to the ECJ the principle of equality calls
for an autonomous interpretation of EU law (
7
). Why should one feel bound,
if others in the same situation are not? This equality would not exist without
autonomy and primacy of EU law.
Van Gend,
thus, has paved the way for EU law as a new kind of legal order,
for the direct effect of the standstill-clause for custom duties among Member
States in Article 12 of the 1957 EEC Treaty implied that, in a given case, the
individual may directly invoke this norm before the national judge which, as a
further consequence, may set aside conflicting provisions of national law. All
the Member States and their courts are recognising this concept in principle.
And the Treaties of Maastricht up to Lisbon are building upon it. It is the ‘rule
of law’ that allowed the Union to developed as successfully as it did. The trust
in the rule of law instead of the rule of man, unlimited power and force, this
trust was and continues to be essential for the success of the European Union.
Nevertheless, national constitutional courts and, in particular, the GFCC
are reluctant to fully accept the autonomy-thesis and primacy of Union law.
The respect of fundamental rights, the safeguard of the limits of powers con-
ferred to the Union and the protection of the Member States’ constitutional
identity are put forward as instances for an ultimate control of the application
of EU law at the national level, so challenging the autonomy of the European
legal order. They, indeed, refer to the concept of autonomy on grounds of their
(
6
) See Ingolf Pernice,
Theorie und Praxis des Europäischen Verfassungsverbundes
, in Christian
Calliess (ed.),
Verfassungswandel im europäischen Staaten- und Verfassungsverbund.
Göttinger Gespräche zum deutschen und europäischen Verfassungsrecht
, 2007, S. 61-92;
WHI-Paper 8/2008, p. 21.
(
7
) ECJ Case C-204/09
Flachglas Torgau,
paragraph 37.
