Table of Contents: I. Introduction. – II. Jurisdictional sovereignty: a core element of an elusive concept. – III. EU autonomy as construed by the Court of Justice. – IV. Jurisdictional sovereignty of the EU as a legal construction. – V. Concluding reflections on the Court’s autonomy conception in context.
Abstract: Despite all rhetorical references to European sovereignty, the EU cannot make a convincing claim to sovereignty under international law. International law does not vest non-state actors with sovereignty. What the EU can do and what it also does is that it acts as if it was a sovereign entity and claims certain rights that are considered core elements of State sovereignty. This paper sheds light on the meaning of the notion of sovereignty in the specific context of the EU’s external legal relations. It argues that the Court of Justice’s conception of the autonomy of the EU legal order provides the EU de facto with a core element of State sovereignty, namely a form of (negative) jurisdictional sovereignty that otherwise only States can claim. Under international law, a State’s exclusive right to decide what acts shall be given effect on its territory is virtually undisputed. It is the core of the external aspect of negative sovereignty and functions as an independent, overriding justification to keep external influences out. The Court’s autonomy conception serves the same purpose. The Court’s broad conception of external influences that could threaten the EU’s autonomy has in the past jeopardized international cooperation plans of the political institutions of the EU. Yet, shutting out external interference is also a necessary precondition for positive sovereignty, i.e. the ability to determine one’s own course of action as a polity, as well as democratic legitimacy.
Keywords: sovereignty – autonomy – Court of Justice – jurisdiction – opinion 2/13 – Kadi.
* Professor of European law, Amsterdam Centre for European Law and Governance, University of Amsterdam, email@example.com.