PRINCIPLE OF NATIONAL

INSTITUTIONAL “AUTONOMY”

SUBJECT: European Union Constitutional and Administrative Law

Year: 2021/2022
CONTENTS
1. Introduction3

2. Definition4

3. Relationship with other fundamental principles5

4. A limited autonomy6

4.1. The exemple of the European Union energy policy7

5. The case of Hungary8

6. Conclusion10

7. Bibliography/Webgraphy11

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1. INTRODUCTION

Throughout the formation of the European Union, we have observed a growing

evolution of the European integration process. In addition to establishing objectives

such as promoting peace, establishing an economic and monetary union, or encouraging

economic, social, and territorial cohesion, “the foundations of a united Europe were

laid on fundamental ideas and values to which the Member States have subscribed in

article 2 and which are translated into practical reality by the EU’s operational

institutions”1. Precisely, the principle of national institutional autonomy is part of the

list of fundamental principles of European Union Law.

From very early on, the autonomy of the European Union's Legal Order was

established, both regarding International Law and regarding the Internal Law of the

Member States. Therefore, we face two autonomies that, although autonomous between

each other, do not superimpose one over the other. On the contrary, they complement

and cooperate with each other. In fact, regarding the autonomy of the European Union,

“by establishing the Union, the Member States have limited their legislative sovereignty

and, in so doing, have created a self-sufficient body of law that is binding on them, their

citizens and their courts”.2

The principle of national institutional autonomy of the Member States, in brief,

wants to demonstrate the idea that each state has the freedom and capacity to be able to

determine its own organization, choosing the competent bodies and deciding which

institutional model they want to follow. “The institutional design and organization of

the administrative structures responsible for implementing and applying European

1
BORCHARDT, Klaus-Dieter, The ABC of EU law, Publications Office of the European Union, 2018
2
BORCHARDT, Klaus-Dieter, The ABC of EU law, Publications Office of the European Union, 2018

3
Union law have traditionally remained the responsibility of the Member States of the

European Union”3.

2. DEFINITION

One of the principles on which the relationship between Community law and the

legal system of the Member States is based and regulated is the principle of national

institutional autonomy. In essence, the autonomy of the Member States is seen as a kind

of fundamental right, by the fact that the Union must respect the constitutional

autonomy and institutional structure of each Member State. However, this principle,

unlike many other fundamental principles, is not expressly mentioned in the Treaties.

“Community law is in principle not concerned with the question of which

authorities enact the necessary measures, and it does not interfere with the internal

structure of the Member States. Thus the choice of the measures, like the choice of the

competent authority, is made within the framework of national constitutional law” 4.

This means that it will be up to the State to determine the organization of its

institutional structure and establish which organs or legal entities for the pursuit of

public tasks. In other words, “this principle consists of guaranteeing the freedom of

Member States to designate and structure the administrative bodies responsible for the

application and implementation of EU rules” 5. So, this institutional dimension of the

principle of autonomy refers to the margin of freedom that the Member States have for

the internal distribution of competences and for determining the entities responsible for

them.

3
https://www.lcii.eu/eudaimonia/
4
PRECHAL, Sasha, Directives in EC Law, Oxford EC Law library, 2005. Pp 74
5
https://www.lcii.eu/eudaimonia/

4
 In fact, nowadays there is a constant and growing connection between European

Law and the administrative organization of each Member State. That is, we can see a

growing adaptation of Member States to the European Union Law. But, despite their

freedom of organization, the truth is that national administrative organizations are not

immune to the European influence, not least because, as a result of European

integration, there is a tendency for the several systems of organization of the Member

States to adapt to the European Administration model.

3. RELATIONSHIP WITH OTHER FUNDAMENTAL PRINCIPLES

The principle of national institutional autonomy reveals itself as a direct expression

of the political and constitutional identity of each Member State, in the light of article

4(2) of TEU (Treaty on European Union), which represents, in addition, the principle of

respect for national identity by stating that “the Union shall respect the equality of

Member States before the Treaties as well as their national identities, inherent in their

fundamental structures, political and constitutional, inclusive of regional and local self-

government”.

In addition, it is also associated with the principle of sincere cooperation that binds

not only the Member States but also the Union. According to this principle, there must

be consistency of action, always adopting the behaviors that prove most favorable to the

fulfillment of the obligations set out in the Treaties. According to article 4(3) of TEU

“the Union and the Member States shall, in full mutual respect, assist each other in

carrying out tasks which flow from the Treaties”.

The principle of national institutional autonomy is also interconnected with the

principle of procedural autonomy. Not only are Member States free to choose and

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determine the model to be followed in their institutional structure (referring to the

principle of institutional autonomy), but they are also free to follow the procedures they

consider appropriate for the implementation of European law in their respective States.

This procedural aspect refers to the concrete use of state rules regarding the Member

States' own administrative procedures for implementing European law.

Finally, the principle of national institutional autonomy is related to the principle of

conferral (article 5(1) of TEU), which consists in the fact that the European Union only

acts within the limits of the competences that European Union countries have conferred

upon it in the Treaties to perform the acts necessary to further its objectives. In

principle, it is up to the Member States to decide, by application of this principle and

national autonomy, on the internal distribution of powers, because this area is not

included in the scope of the European Union's competences.

4. A LIMITED AUTONOMY

Although the principle of national institutional autonomy of the Member States is

established, the truth is that there is no true autonomy, since there are many European

provisions that impose solutions on the internal administrations of each State. In certain

areas, European law develops a relevant influence over the institutional and organic

framework of national administrations.

Actually, this supposed “autonomy” of each State to establish its own internal

administrative organization and decide the model of management and exercise is also

affected by the principle of the primacy of European Union law. Sometimes it happens

that the Member State has to designate some authority or create some independent

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public enforcement body on its own territory. Similarly, constitutional changes may

occur within the legal system that also affect the internal distribution of competences.

4.1. THE EXAMPLE OF THE EUROPEAN UNION ENERGY POLICY

One of the objectives followed by the European Union has been the promotion of

an energy policy for the development of sustainable, secure and economical energy.

And with this in mind, the Union has been adopting legislation on the operation of

European energy markets6, containing clear rules to be implemented in each Member

State. “Several Directives on liberalized public services markets and networks

(telecommunications, electricity and gas) have enshrined the obligations of the Member

States to attribute precisely to independent administrative authorities (the so-called

national regulatory authorities), and not to the legislator, the discretionary power to

determine the relevant markets and the basic criteria for accessing the network” 7. This

gives a real "false" impression that Member States are autonomous both institutionally

and procedurally. As the name implies, these national regulatory authorities 8 have the

important task of ensuring the implementation of European Union regulatory policy and

its objectives for the energy markets.

Taking Portugal as an example, we find, in this context, the ERSE 9

(Energy

Services Regulatory Authority or in Portuguese “Entidade Reguladora dos Serviços

6
Reference to the Third Energy Package
(https://ec.europa.eu/energy/topics/markets-and-consumers/market-legislation/third-energy-package_en?
redir=1)
7
SANTISTEBAN, Xabier Arzoz, La autonomia institucional y procedimental de los Estados Miembros
en la Unión Europea: Mito y Realidade, Revista de Administración Pública, 2013. Pp 177
8
https://ec.europa.eu/energy/topics/markets-and-consumers/energy-consumer-rights/protecting-energy-
consumers/national-regulatory-authorities_en
9
https://www.erse.pt/inicio/

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Energéticos”). It is a legal person under public law, with administrative, financial and

management autonomy and organic independence (it is not subject to government

supervision). In this respect, ERSE has to prepare an annual report on the electricity and

natural gas markets in Portugal and submit it to the European Commission.

Nevertheless, an important aspect is that ERSE has the authority (based on the Energy

Sector Sanctioning Regime, approved by the law no. 9/2013, of 28 January 10) to process

and punish infractions in the scope of the National Electricity System and the National

Natural Gas System, based on Directives 11 which establish common rules for the

internal natural gas and electricity market for each Member State.

Turning now to Slovenia, we find the Agencija za energijo 12 (the Energy Agency in

the Slovenian energy market). Like Portugal, Slovenia also belongs to the European

Union, which means that it is also subject to the common rules for the internal market in

natural gas and electricity. Thus, energy consumer rights have to be clearly set out in

the national laws of the EU countries and must reflect provisions in EU legislation”13.

5. THE CASE OF HUNGARY

In the past few years, Hungary has been the subject of a long discussion within the

European Union about possible violations of the integrating principles of the European

Community. We know that Hungary is part of the European Union, so, consequently, it

has to respect the European rules contained, for example, in the Treaties.
10
https://dre.pt/dre/detalhe/lei/9-2013-257008
11
Concerning common rules for the internal market in natural gas (https://eur-lex.europa.eu/legal-
content/PT/TXT/?uri=CELEX:32009L0073) and in electricity
(https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:32009L0072)
12
https://www.agen-rs.si/o_agenciji
13
https://ec.europa.eu/energy/topics/markets-and-consumers/energy-consumer-rights/protecting-energy-
consumers_en

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 It turns out that the European Commission in 2012 initiated infringement

proceedings against Hungary, within a few situations, because of its data protection

authority. In this particular case Hungary decided to create a new Data Protection

Agency, which has caused the commissioner of the old data protection office to resign

prematurely. Besides, the new rules would make it possible for the Prime Minister and

the President to dismiss the new supervisor arbitrarily.

So, it is true that under the principle of national institutional autonomy, Member

States are free to determine their organizational structure and institutional model.

However, as mentioned before, we see that in fact there is no true principle of national

institutional autonomy, since there are rules imposed by the European Union that can

change not only the distribution of internal powers, but also the institutional structure of

each State. In fact, and based on this case about Hungary, “EU rules on data protection

(Directive 95/46/EC) require Member States to establish a supervisory body to monitor

the application of the Directive acting in complete independence”14. Furthermore, in

judgment C-518/07 of March 9, 2010, the Court of Justice stated that “data protection

supervisory authorities have to remain free from any external influence, including the

direct or indirect influence of the state”15.

In this way, we see a clear limitation to the principle of national institutional

autonomy when the creation of an independent authority is imposed by European Law

to the Member States.

6. CONCLUSION

14
https://ec.europa.eu/commission/presscorner/detail/en/IP_12_24
15
https://ec.europa.eu/commission/presscorner/detail/en/IP_12_24

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 With this research, the conclusion is that by national institutional autonomy we

mean the ability of each Member State to choose and determine its own organizational

structure within its legal system.

However, this is not quite what occurs. In fact, we are facing a constant decrease in

the institutional autonomy of Member States, as the European Union has gradually

taken overpower. The truth is that each State, by joining the Union, has “renounced”

certain individual decision-making powers, that is, powers that would be subject to the

autonomy of the States themselves and that are now indirectly (even directly) subject to

European norms.

As mentioned in the examples explained above regarding national regulatory

authorities, Member States are limited in this respect. By virtue of their membership in

the European Union, each State is directly subject to European rules. Therefore, and

taking as an idea the limitation-example mentioned above, European Union Energy Law

clearly demands the establishment of national regulatory authorities in each country to

adopt and promote a greater "sustainable Union" in energy matters. It is certain that

imposing the creation of these entities within a country will change the internal

institutional structure that, in the first instance, should be part of each State's

competence, according to the principle of institutional autonomy and principle of

conferral. In addition, along with the creation of independent entities, there is the

imposition of other rules and obligations that affect the internal distribution of

competencies.

In this way, we understand that we don’t really find a principle of national

institutional autonomy, as it has been " shortened" by the influence of European Law.

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7. BIBLIOGRAPHY AND WEBGRAPHY

- Borchardt, Klaus-Dieter, The ABC of EU law, Publications Office of the

European Union, 2018
- DÍEZ-PICAZO, Luis María, La naturaleza de la Unión Europea, Revista para el
análisis del derecho, 2008
- Guerra Martins, Ana, Manual de Direito da União Europeia, 2ª ed., Almedina,
2017
- PRECHAL, Sasha, Directives in EC Law, Oxford EC Law library, 2005
- SANTISTEBAN, Xabier Arzoz, La autonomia institucional y procedimental de
los Estados Miembros en la Unión Europea: Mito y Realidade, Revista de
Administración Pública, 2013

- https://repositorio.ucp.pt/bitstream/10400.14/16617/1/Dissertação
%20Mestrado___Marta%20Moutinho.pdf
- https://orbi.uliege.be/handle/2268/264192
- https://www.yumpu.com/pt/document/read/12980411/a-influencia-do-direito-
da-uniao-europeia-na
- https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?
article=3762&context=facpub
- https://www.lcii.eu/eudaimonia/
- https://ec.europa.eu/energy/topics/markets-and-consumers/market-legislation/
third-energy-package_en?redir=1
- https://ec.europa.eu/energy/topics/markets-and-consumers/energy-consumer-
rights/protecting-energy-consumers/national-regulatory-authorities_en
- https://www.erse.pt/inicio/
- https://dre.pt/dre/detalhe/lei/9-2013-257008
- https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:32009L0073
- https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:32009L0072
- https://ec.europa.eu/commission/presscorner/detail/en/IP_12_24
- https://www.agen-rs.si/o_agenciji

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