Chapter 13: Autonomy of the EU legal order a general principle? On the risks of normative functionalism and selective constitutionalisation
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The EU Treaties do not refer to 'autonomy' of the EU legal order in general terms, which would merit calling it even a principle. Nevertheless, the CJEU seems to claim that autonomy of the EU legal order is a free-standing principle, based on a functional rationale. The chapter, firstly, takes the Court's claim of autonomy as a principle at face value: what is the meaning and content of autonomy? How is it used and what does it tell us about is the legal nature of 'autonomy'? (is it a legal principle, general principle or constitutional principle?); secondly: what can we learn about the method by which general principles are recognised and problems, risks and limitations associated with the process from the way the Court uses autonomy. Could a general principle come into existence as a result of the independent normative force of a mere claim to be a general principle? This chapter then analyses whether 'autonomy of the EU legal order' may be considered to be a new general principle of EU law and what its content would be, taking the perspectives, from EU law and public international law, respectively. It will consider the definition and content of 'autonomy' and the functions that references to 'autonomy' serve within and across legal orders, and as to articulate/conceptualise the relationship of EU law with public international law.

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