In the Name of Primacy

In 1973, Pierre Pescatore noted that “[P]rimacy is an ‘existential requirement’ of EU law”. That statement is even more accurate today considering the growing challenges to this pivotal legal tenet. As a matter of fact, some constitutional courts of the Member States refuse to acknowledge its centrality based on the need to protect the national constitutional identity.

The Opinion of Advocate General Spielmann in Case C-448/23 (Commission v. Poland), delivered on 11 March 2025, opens with this harsh observation. His difficult task is to frame in legal terms the two essentially political rulings delivered by the Polish Constitutional Tribunal (Trybunał Konstytucyjny) in 2021, where – notoriously – the “captured” domestic court refused to adhere to the most basic principles governing the relationship between national and EU law. Indeed, the position of the Constitutional Tribunal goes well beyond the counter-limit doctrine elaborated by Paolo Barile in 1966 and is in no way comparable to precedents such as Ajos, M.A.S. and M.B., or Weiss. Here, the cornerstones of European integration are undermined, and the very authority of EU law is contested and ridiculed.

While the Tusk government is trying to return to normality, the ECJ should seize the opportunity to make it clear that there is little room in the Union for illiberal governments and captured courts. As I argue in this short contribution, this requires adjustments in the current vocabulary of the Luxembourg judges, calls for the use of uncompromising yet well-measured words in response to systemic rule of law violations by current and future rogue states, and justifies the formulation of a recommendation to the Masters of the Treaties.

The (in)famous judgements in Case K3/21 and Case P 7/20 disregarding the principle of primacy

In Case C-448/23, the Commission challenges the two (in)famous judgments of the Polish Constitutional Tribunal of 14 July 2021 (Case P 7/20) and of 7 October 2021 (Case K 3/21) and argues that the latter fails to offer the guarantees under Article 19(1) TEU, read together with Article 47 of the Charter of Fundamental Rights of the European Union. In particular, with its second plea, the Commission contests the infringement of the principles of primacy, autonomy, effectiveness and uniform application of EU law, as well as the binding effect of judicial decisions of the CJEU. In truth, the Constitutional Tribunal unilaterally affirmed the prevalence of national law over EU law, disregarded the effectiveness of Articles 2, 4(3) and 19(1) TEU and Article 279 TFEU, and instructed all Polish authorities to disapply those Treaty provisions, as consistently interpreted by the Luxembourg Court.

The case falls within the sadly well-known rule of law backsliding in Poland, but presents some specificities which is worthwhile noticing at the outset. Firstly, with the advent of the third Tusk government, the defendant no longer disputes the charges brought against it by the Commission. Secondly, the breach does not consist in the failure to comply with rulings issued by the Court of Justice in relation to specific domestic measures concerning the independence of the judiciary, but in the rejection tout court of the “existential requirements” of the EU legal order; namely: primacy, autonomy, effectiveness and uniform application.

The perverse and destructive effects of the rulings on the EU legal order

As suggested by AG Spielmann, this case is about the complicated and complex relation between the constitutional identity of the Member States, the duty to respect national identity pursuant to Article 4(2) TEU and the European constitutional identity. This is precisely why it is believed that the Court should firmly (re)claim the final authority as guarantor of the Treaties and bravely raise the existential question of what the Union is without primacy, which inevitably (also) implies the affirmation of its monopoly in the interpretation and application of the identity clause taking into account the diversity of the Member States.

As effectively put by the Editorial appeared in the Common Market Law Review after the judgement of the Constitutional Tribunal in Case K 3/21: “[T]he potentially disintegrative impact of this ruling, for the EU legal order and by extension, the EU itself, can hardly be overstated”. Contempt for primacy, as well as for the division of powers and the judicial independence in a single Member State, is capable of triggering a real existential crisis insofar as it challenges the constituent and consubstantial principles of the EU’s constitutional structure and ultimately questions the essence of European identity (see here and here). In the author’s view, there are (at least) seven triggers for this existential crisis.

First, the respective Polish case law arguably represents a systematic denial of the founding values of the Union. The attack against the independence of the judiciary and discrimination of minorities such as the LGBTQI+ community (inter alia) have determined a decline in the respect of the rule of law, democracy and equality which is not only incompatible with the Treaties, as specifically recognized in Republika, but also hampers the application of EU law, as clarified in LM.

Second, the Polish case law directly hinders the objectives of the Union, which include promoting the welfare of citizens, combating social exclusion and discrimination, promoting justice and social protection, as well as equality between women and men.

Third, the rejection of primacy violates the equality of the Member States before the Treaties. This hinders mutual trust, with serious repercussions on the functioning of the system and the possibility to deepen (and widen) the European integration process, the ever-closer Union evocated under Article 1 TEU.

Fourth, the Polish case law challenges, demonizes, and finally renders ineffective the preliminary ruling mechanism – the keystone of the judicial system as thus conceived. Failure to comply with the obligation under Article 267(3) TFEU disconnects the national legal order from the supra national one and prevents the correct and uniform application of Union law.

Fifth, the principle of loyal cooperation is mortified. The Union’s legal order is thereby deprived of an essential dynamic instrument that implies good faith in the fulfillment of the Treaties, aims to prevent disagreements and allows conflicts to be resolved without resorting to corrective or sanction mechanisms.

Sixth, the principle of autonomy of Union law is directly called into question; a principle upon which the Court has largely built its bold rule of law jurisprudence to defend the values enshrined in Article 2 TEU since Associação Sindical dos Juízes Portugueses.

The need for a lucid, bold and forward-looking judgment

Although the principle of primacy has traditionally been regarded as a “structural principle” of the European Union’s constitutional system (Opinion 2/13, paras 165-166), this case brings out the latter’s true nature; that of an international organization, albeit sui generis. Despite its existential nature, primacy remains in practical terms a regional customary rule which is currently contested by a number of constitutional courts (Bulgaria, Hungary, Poland, Romania, Czech Republic) throughout the Union.

At the end of the day, the overall resilience of the system in the medium and long term depends on true and full adherence to European values. Insofar as Member States effectively comply with Article 2 TEU, the chances of conflict between EU law and provisions reflecting the relevant domestic constitutional identity are scarce, and in any case manageable via the identity clause, the principle of loyal cooperation, and the principles of subsidiarity and proportionality.

Hence, the ECJ should send a clear and loud warning to the Member States and candidate countries with a judgment that is lucid, bold, and forward-looking.

Lucid, because it should be made clear that constitutional identity cannot be invoked when the situation falls within the scope of Union law. When raised before the ECJ, the argument is misleading and formally not pertinent. This actio finium regundorum is essential: regardless of any possible material juxtapositions, only the Luxembourg Court can decide whether the case concerns national identity under Article 4(2) TEU and what the consequences are in a given case. In preliminary rulings, it will ensure that the specificities covered by the identity clause are duly considered (see Sayn-Wittgenstein). Similarly, in the context of infringement actions, it will not uphold objections that impinge on the prerogatives granted to Member States under Article 4(2) TEU (see Commission v Spain).

Bold, because in the face of such macroscopic violations of the values affirmed by Article 2 TEU – threatening “the very identity of the Union as a common legal order” (Hungary v Parliament and Council, para 127) – Article 4(2) TEU is incapable of performing an irenic function. Failure to follow the position of the government or the referring court will invariably lead to a refusal to comply with the judgment (or order) of the ECJ. It would therefore appear appropriate and possible – especially now that the elections in Poland seem to allow this without fear of governmental counter-measures at the EU Council level – to confirm that such violations reflect a degree of rule of law deterioration incompatible with EU membership. It would be meaningful to add that Article 50 TEU provides for an orderly withdrawal of a Member State that wishes to leave the Union.

Forward-looking, because this is a period of strong and rapid political change, not necessarily advancing democracy. For the European Union, which inherently works for peace and economic stability, the risk of an illiberal drift is not acceptable. The EU institutions, including the Court of Justice, are committed to upholding the values enshrined in Article 2 TEU and cannot remain passive in the face of their erosion. The desire to continue with the enlargement process, and the corresponding need to amend the Treaties, presents the Court of Justice with an opportunity to openly acknowledge the limitations of Article 7 TEU and suggest that Member States amend primary law accordingly, à la UPA, so to speak. Indeed, in the absence of a thorough amendment of Article 7 TEU, possibly including a (relatively flexible) expulsion clause for non-EU value abiding states, the Union risks being hollowed out from within, losing both its values and its purpose. Paradoxically, the enlargement process may offer an opportunity in this regard, as every new accession requires a revision of the Treaties.