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The principle of autonomy of EU law is not spelled out in the Treaties. As so much else about the Union, it has emerged over the years from the case-law of the European Court of Justice. Based on the unique features of the EU legal order, its original focus was internal: it was developed in the context of supremacy and was intended to bolster the normative features of the then nascent legal order in order to enable it to withstand challenges from national law.
The principle, however, has acquired an external dimension over the years. This has been about protecting one of the main policy characteristics of the mature legal order from interference originating beyond the Union. This dimension started becoming apparent in the early 1990s, when the adjudication system provided in the European Economic Area Agreement was found to pose a �threat � to the autonomy of the Community legal order�.
Since the 2000s, the principle of autonomy has attracted considerable attention by practitioners and academics alike due to a small body of case-law that has developed the principle with, at times, spectacular results. These include the annulment of measures that implement United Nations Security Council Resolutions due to incompatibility with EU fundamental human rights law, and the finding that the draft agreement on the Union�s accession to the European Convention on Human Rights, negotiated between 2010 and 2013, was incompatible with the exclusive jurisdiction of the Court of Justice. Whilst apparently distinct, these internal and external functions of autonomy are not easy to distinguish. This is the case not only in conceptual but also in policy terms. After all, the EU�s judges render their judgment with an eye to national courts. A case in point is Kadi, where the Court ruled in full awareness of the potential role that national judges might be called upon to assume if judicial review in Luxembourg was viewed as deficient.
Be that as it may, the notion of autonomy has become an increasingly prominent and seductively ill-defined principle that raises two interrelated questions about its interpretation and application in the case-law. First, has the principle been instrumentalised in order to shield the jurisdiction of the Court from any claim by other transnational tribunals in areas where international law interacts with EU law? Secondly, does the approach of the EU judges illustrate reluctance to embrace international law, therefore enabling them to be selective in their reliance upon and application of it? These issues will be revisited shortly in the context of the relationship between international investment law and EU law where, in different contexts, the autonomy of the EU legal order has been brought to the fore. A case in point is Achmea where the German Federal Court of Justice (Bundesgerichtshof) has raised questions about the compatibility with EU primary law of the arbitration procedure laid down in the BIT between Czechoslovakia and the Netherlands. At the time of writing, Advocate General Wathelet has rendered his Opinion where he sets out a symbiotic relationship between intra-EU BITs and EU law. He argues that neither the principle of autonomy nor the exclusive jurisdiction of the Court is impinged upon by the provision for investment arbitration in BITs between Member States. In his Opinion, EU and BITs are understood as two distinct legal spheres the interactions of which need not threaten the functioning of either.
In developing this approach, his line of reasoning is characterised by a strong realist streak and the avoidance of grand teleological arguments. Advocate General Wathelet draws upon the limited purview of the jurisdiction of arbitral tribunals and the capacity of EU law to deal with any threats to autonomy that may emerge. In relation to the latter, in particular, he points out that the structures and principles of EU law (including, amongst others, the broad scope of Article 267 TFEU and the application of the principle of State liability in damages) are sufficient to absorb any tensions that may arise. The difficulties raised by some of its specific points notwithstanding, the Opinion in Achmea deserves to be read by non-experts in EU external relations law. For all its anchoring on the practice of investment arbitration and the ensuing complexities that may arise, the Opinion is also asking us, indirectly, to reflect on the big questions about a Union that is confident and open to international law: how best to manage the ways in which EU law interacts with the existing and developing structures that govern international co-operation? How tolerant can the Court of Justice be of the jurisdiction of other transnational tribunals? And what is the price to pay, not least for the effectiveness of EU law and legal certainty, for seeking to ensure the harmonious co-existence between distinct but interacting areas of international law? Finally, should the principle of autonomy enable the Union�s institutions to guard zealously their powers by restricting their interactions with other transnational bodies? Or should it be construed on the basis of a pragmatic understanding of the position of the EU legal order as a part of a dynamic and constantly evolving international legal environment?
