68
Ingolf Pernice
Deuxième séance de travail — Les retombées
‘provided that the indispensable conditions for safeguarding the es-
sential character of those powers are satisfied and, consequently, there
is no adverse effect on the autonomy of the European Union legal or-
der’.
The Court took the view that this condition was not fulfilled by the draft
agreement, given that the latter provided an exclusive jurisdiction to inter-
pret and apply European Union law in the field of Community patent law and
would, according to the Court,
‘deprive courts of Member States of their powers in relation to the
interpretation and application of European Union law and the Court
of its powers to reply, by preliminary ruling, to questions referred
by those courts and, consequently, would alter the essential charac-
ter of the powers which the Treaties confer on the institutions of the
European Union and on the Member States and which are indispensa-
ble to the preservation of the very nature of European Union law’ (
39
).
Autonomy, thus, requires institutional or functional devices for protecting
‘the essential character of the powers of the Community and its institutions’,
but it also regards the substance of the EU legal order. This was the subject of
the famous Joined Cases C-402/05 P and C-415/05 P
Kadi and Al Barakaat
,
where the Court equates autonomy with the ‘allocation of powers fixed by
the Treaties’ (
40
). It refers to the binding character of the fundamental rights,
which, according to its settled case-law, ‘form an integral part of the general
principles of law whose observance the Court ensures’. The conclusion is
‘that the obligations imposed by an international agreement cannot
have the effect of prejudicing the constitutional principles of the EC
Treaty, which include the principle that all Community acts must re-
spect fundamental rights, that respect constituting a condition of their
lawfulness which it is for the Court to review in the framework of the
complete system of legal remedies established by the Treaty’ (
41
).
(
39
) Ibid., paragraph 89.
(
40
) ECJ Joined Cases C-402/05 P and C-415/05 P
Kadi and Al Barakaat
[2008] ECR I-6351,
paragraph 282, with reference to its former case-law stating ‘that an international agreement
cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy
of the Community legal system’.
(
41
) Ibid., paragraphs 283-285.
