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The single most far-reaching, and probably most disputed, principle of the European Community (EC) and of the European Union (EU)[1] is its claim to a legal order autonomous from Member State law. In this Article, I discuss four possible foundations of this claim to autonomy: the European Treaties as originally concluded,[2] subsequent developments under these treaties, natural law, and public international law. I conclude that only the fourth possibility is a valid foundation for a limited notion of Community law autonomy.
Autonomy can have different meanings. "Original autonomy" describes a particular legal order that is not derived from any other legal order. It is ultimately created by its own original constituent power and is absolute by necessity. "Derivative autonomy" indicates that the particular legal order, although derived from other legal orders, once it has been set up, is independent from the contents of those other orders. Derivative autonomy may exist in varying degrees. Finally, "interpretive autonomy" means that only the institutions of the particular legal order are competent to interpret the constitutional and legal rules of this order. This last meaning of autonomy is inherent in original autonomy, but not necessarily present in derivative autonomy. It may well be that a legal order has a large degree of derivative autonomy, but the legal orders from which it stems have reserved power for their own institutions to interpret at least the constitutional rules of the otherwise autonomous legal order. Such an order would have derivative autonomy, but no interpretive autonomy.
[]1 The two must be distinguished. The European Community is only one of the three Communities on which the European Union is founded. I deal with the most important community, i.e., the European Community, formerly the European Economic Community (EEC).
[]2 EUROPEAN COMMUNITY [EC] TREATY (renaming the European Economic Community that originated under the TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY [EEC]); TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY [ECSC]; TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY [EURATOM]; TREATY ON EUROPEAN UNION [MAASTRICHT TREATY]. Hereinafter, I refer to these treaties collectively as the "European Treaties."