In the face of rising political and geoeconomic tensions, the EU has been focused on revamping its ‘strategic autonomy’. Hoffmeister recently offered a legal definition of strategic autonomy. Accordingly, the ‘concept combines giving more weight to the constitutional objective under Article 21(2)(a) TEU among the competing foreign policy goals with a quest to create new EU powers in the area of EU external relations.’²

This paper argues that a conception and practice of ‘strategic autonomy’ that is grounded in the quest to create new EU external relations powers through external and/or internal action is problematic from a competence perspective, as there is a high risk that the EU ends up legislating in areas where it has not been conferred a specific competence ('competence creep’). Against that background, it examines the extent to which the EU’s recent strive for strategic autonomy has caused competence creep, as well as the potential consequences that result competence creep through external action. Furthermore, it assesses the ever-changing position of the EU Member States as subjects of international law. Ultimately, the paper calls for a more cautious definition and pursuit of strategic autonomy: If the EU gains strategic autonomy from third states by disrespecting the national autonomy of its own Member States, it risks infringing what it intended to protect from external pressures (i.e. ‘its values, fundamental interests, security, independence and integrity’ (Art. 21(2)(a) TEU)). This, in turn, means that the rationale of the EU’s legal order can be put under pressure.

The paper is structured in three parts. The first part briefly revisits the problem of 'competence creep’. By focusing specifically on the risk of competence creep through EU external action, it seeks to add an ‘external dimension’ to the existing literature. The second part examines the selected EU instruments adopted in pursuit of strategic autonomy. Looking particularly at the choice of legal basis, it shows how the EU institutions (including the Member States in the Council) deliberately subjected Member State powers to EU integration. The third part reflects on the consequences of external competence creep in light of recent (geo-)political challenges, on the one hand, and the need for Treaty reform, on the other.

²Hoffmeister, ‘Strategic autonomy in the European Union’s external relations law (2023) 60 CMLR, 667, 697-698, emphasis added.

This paper derives from a chronological review of the policy and conceptual gaps between the EU and China before (1995-2019) and after the COVID-19 (2020-2023) periods to explore the potential of the EU's strategic autonomy in its external policy on China in the post-covid era.

Methodologically, the paper combines the interpretive approach and international political economy perspectives to explore and evaluate the potential of the EU's strategic autonomy in its external policy on China. It strives to see whether and how the gaps between the EU and China in their evolving policy priorities, social-political ideas, and trading data are relevant in understanding and adjusting the EU's external policies on China in the age where the EU tends to both take more inward-looking approaches and seeking strategic autonomy as the same time.

The paper argues that self-innovation, resilience, and sustainability are key criteria for assessing the potential of the EU's strategic autonomy in the case of EU-China relations. Each of these criteria is related to factors including stability, priorities, and challenges, the extent of which requires an integrated analytical framework with social, political, and economic evidence.

The paper further argues that while last year saw the discussion of the metaphor of the EU as an idyllic "garden", it is necessary to distinguish the differences between this narrative and that of the EU's strategic autonomy to avoid an isolated EU from the Global South. The "garden", if taking the metaphor, needs a sustained flow of sunshine, water, and customers, and the EU industrial chain alone can hardly sustain the autonomic running based on the development timeline of the strategic autonomy informed by the analytical framework of this paper.

Overall, the paper argues that for bilateral relations between the EU and China in the current international climate, it is crucial to have "bottom-line" thinking, ensuring at least the essential bilateral interactions for the coming periods, and from there, clarifying and enhancing common grounds for optimum mutual benefits for the longer term.

In Opinion 2/13 the EU Court of Justice (CJEU) found the EU’s accession to the European Convention on Human Rights (ECHR) to be contrary to the EU’s autonomy insofar the powers attributed to the European Court of Human Rights (ECtHR) would encroach on the exclusive powers of the CJEU with respect to the interpretation and validity of EU law. In a similar vein, the CJEU halted the conclusion of the Agreement on the European Economic Area (EEA) in Opinion 1/91, since the judgments of the proposed EEA Court would influence the interpretation of EU law. The EEA Agreement extends the EU’s internal market rules to Norway, Iceland and Liechtenstein (the EEA EFTA States). For the purpose of ensuring a homogeneous interpretation of these rules throughout the whole EEA, the EEA EFTA States set up their own court as a counterpart to the CJEU, i.e. the EFTA Court. In Opinion 1/92, the CJEU found the establishment of the EFTA Court to be compatible with the autonomy of EU law.

Although the EFTA Court’s procedures and powers have been inspired by those of the CJEU, some important discrepancies exist for the protection of the EEA EFTA States’ sovereignty. These procedural discrepancies have lead the ECtHR to doubt whether its Bosphorus “equivalent protection doctrine” might be applicable to the EEA. That doctrine was introduced by the ECtHR in order to allow the ECHR and EU legal orders to peacefully co-exist, and has as a result that the ECtHR only marginally assesses the compatibility of Member States’ EU law obligations with the ECHR, limited to “manifest deficiencies”. Since the EEA Agreement extends the EU’s internal market rules to the EEA EFTA States, the ECtHR’s refusal to apply the “equivalent protection doctrine” to the EEA could, however, lead to an indirect and full review of EU law through the backdoor of the EEA, as evidenced by the case LO and NTF v. Norway. By approving the compatibility of the EFTA Court with the EU’s autonomy, unwillingly the CJEU may therefore have opened the door for an unanticipated threat to its autonomy.

This contribution aims to critically analyse the ECtHR’s assessment of the “equivalent protection doctrine” vis-à-vis the EEA, the grounds for (not) applying that doctrine to the EEA, and the possible implications the interconnectedness of the ECHR, EEA and EU legal orders may have for the autonomy of the EU legal order.