Interconnecting Legal Systems and the Autonomous EU Legal Order: A Balloon Dynamic

Abstract

The concept of the new and autonomous EU legal order, as it emanated from the historic Van Gend & Loos judgment of the Court of Justice of the European Union (CJEU),1 can best be pictured as an empty balloon firmly slid in-between public international law and constitutional law. 2 At first this would sit somewhat uneasily and create some friction, but it would not yet raise any major concerns. More important frictions with international law however started to appear with the rapid expansion of the EU integration process both in terms of substantive coverage and territorial scope, due to the constant transfer of competence towards the EU, coupled with the EU enlargement process to include new Member States. The balloon imagery goes that with every such new EU development, more air is automatically blown into the balloon. Yet strongly inflating the EU balloon has as a direct consequence that also more and more international law (and Member States’ constitutional law) is systematically squeezed out. It is this gradual but steady EU integration process which inevitably causes increased friction and possibly even resistance against a further expansion of the autonomous EU legal order. Not surprisingly, the biggest friction is likely to relate to the transfer of areas which for a long time were kept outside the EU law balloon and within the sole realm of international law.