Building Supranational Identity: Legal Reasoning And Outcome In Kadi I And Opinion 2/13 Of The Court Of Justice
Italian Journal of Public Law, 2/2016, 235-267
33 Pages Posted: 9 Jan 2019
Date Written: November 28, 2016
This article offers a comparison between the Kadi saga and Opinion 2/13 in light of what identity studies suggest. More specifically, this work looks at the case law of the Court of Justice of the European Union (CJEU) in order to explore its role as interpreter of the constitutional identity of the EU. To this aim, I shall divide this work into three parts: In the first part I shall introduce some key concepts borrowed from political philosophy in order to apply them to the Van Gend en Loos and Costa/Enel jurisprudence. In the second part, I shall explore the Kadi saga, paying particular attention to the shift occurred in the legal reasoning of European courts, from heteronomy to autonomy. Thirdly, I shall look at Opinion 2/13, trying to emphasize how its legal reasoning is quite similar to that employed by the CJEU in Kadi I. At the same time, although the techniques used in the legal reasoning are comparable, the outcome, in terms of impact over the protection of fundamental rights, is radically different. Finally, some conclusive remarks will be presented.
Keywords: European Constitutional Law, Kadi, ECHR, Court of Justice of the EU (CJEU), ECHR, ECtHR
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