L’autonomia dell'ordinamento giuridico dell'Unione europea. Riflessioni all'indomani del parere della Corte di giustizia

Though widely used in international law literature, “autonomy” is not a term of art having a commonly agreed meaning. Particularly ambiguous is the concept of “autonomous legal order”, which is employed to qualify the internal legal orders of international organizations by scholars who have opposite views concerning the original or derivative nature of such orders. This article deals with the “autonomy” of EU law, a concept which was initially laid by the Court of Justice to affirm the primacy of Community law over domestic law and to guarantee its uniform application in all Member States. Subsequently, the same concept has been utilized by the Court of Justice to indicate autonomy from international law: in this second meaning, it protects the core identity values and principles of EU law and has evolved in parallel with the process of “constitutionalisation” of the EU. The preservation of the autonomy of the EU legal order, in both its « internal » and « external » dimension, has been intended as closely linked to the defense of the prerogatives of the Court of Justice. The paper tackles the evolution of the relevant case-law, from Costa v. Enel onwards, by paying special attention to the role played by human rights in the construction of the EU identity. It emphasizes that Opinion 2/13 has marked a reconfiguration of the concept of “autonomy”, by exacerbating the distrust of the Court of Justice in external judicial review and accentuating the “European Exceptionalism”, whereby the EU tends to require a special treatment compared to the one accorded to other international organizations.