All This for «Primacy»?

There is hardly any clearer picture of the “tragic” pitfall in which the EU languishes than the last evolutions of the rule of law’s saga, the most recent of which is the C-448/23 case pending before the ECJ. The AG’s Opinion delivered on March 11^th shows signs of the decline the EU suffers for the multiple crises occurred and for its reluctance to tackle politically, and open-mindedly, the manifold interrogatives that follow.

Background

Three claims appear to summarise primacy’s alleged status quo:

1) It must be secured regardless of the attributed competences;

2) It must be enforced as EU law is assumed to implement EU founding values, which are presumed to align with national constitutional values;

3) Other lines of arguments are countered by a militant language deployed in defence of such values.

Claim 1) has a long-lasting history in the evolution of EU law’s interpretation, which can be summarised in three steps.

One. Member States’ initial consent, as aimed at establishing a special legal order, leads to a teleological-systematic reading of all the measures based on the Treaties establishing that order – for such measures are assumed to pursue the objective the States envisaged. Thus, the Lotus doctrine – “where is State’s will, there is law” – is not formally repudiated, but circumvented in an evolutionary direction: this reading of the States’ initial consent separates voluntarism from textualism while coupling it with teleologism.

Two. This construct points to the supreme objective of the European integration: to preserve peace and justice on the continent. While post-WWII constitutions reach both on a nation-wide scale, the integration protects it as merging nation-States would prevent a comeback of national autocracies.

Three. As consolidating this “national constitutional acquis”, EU law enjoys a positive bias resting on a moral preferability vis-à-vis national law. Thus, the competences conferred are understood in a functional, ever-broader sense.

Moral preferability strengthens States’ initial consent to expand EU law’s applicative scope. This leads to a subversion of legal logics, as apparent in the effet utile, a pattern for the overall EU’s primacy’s toolkit. Accordingly, “EU law must prevail on national law as it cannot reach its objective otherwise” – rather than “EU law is allowed to reach its objective only once its applicability is confirmed”.

Claim 2) adds three further steps to this trajectory.

One. That EU law prevails on national constitutional law is advanced in Internationale Handelsgesellschaft; the conflict that follows is settled in light of the so-called practical concordance. Accordingly, a converging constitutional motion is held to embrace Member States and the EU, and is taken as capable of preventing constitutional conflicts between their respective orders. A sameness of values is held to exist between the two, the integration simply implementing those common values on a single plane.

Two. Consequently, an irenic assumption emerges: EU law is able to solve all conflicts arising in Europe’s space. Thus, the relationship between EU and the Member States shifts from a procedural – inter-order relations – to a substantive plane, i.e., relations among fundamental rights. The question “who applies first?” turns into “who protects that right better?”, which only makes sense in view of the EU and the States walking on a single moral path.

Three. As EU law enters the fundamental rights’ domain, national courts and the ECJ find themselves on the same side of the river: both protect individual rights against reluctant Member States. Such courts’ growing prestige has contributed to marginalising political legislators, national claims to self-government being associated with the spectre of autocracy. This anti-sovereignty narrative overlooks that, after 1945, sovereignty carries the prime legacy of post-WWII constitutions – namely, universal suffrage. However, so long as the irenic assumption works, EU law prevails on national law: State’s initial consent is taken as given una tantum – as it covers the whole integration, whatever measure it consists of – and sovereignty, though circumvented, is not violated.

Claim 3) emerges as the last two decades signpost a EU’s ever-increasing anti-voluntarist drift. The rise of multiple constitutional conflicts contradicts the irenic assumption: sovereignty knocks back at the door and the sameness of values comes under question.

Those who wish to drive the integration just as usual, or by “increased institutional variations” in response to increased challenges, oppose this process. They claim another subversion of legal logics: “so long as EU law applies with priority, then it solves all conflicts arising in Europe’s space”. The irenic assumption, in their view, is an a-priori: the cause, rather than the effect, of the sameness of values. Common values do not construe a law able to solve conflicts, but are construed by a law that solves – rather, suppresses – such conflicts. They find in the Opinion at debate a well-crafted summary of their arguments.

The existential primacy

Any national judgment opposing this latter subversion “does not constitute some minor friction between the EU and the national legal order: it strikes to the heart of the principle of primacy”, as there exists only one order in Europe’s space, and the ECJ is the supreme court thereof. National courts daring to challenge this are labelled “rebels” albeit they do not claim to impose their law as EU law. Significantly, the Italian Constitutional court did impose its legal singularity – the “limitation-period as substantive norm” – on the ECJ in the Taricco saga, but escapes that label. This contradicts what the AG maintains, i.e., that national courts defend sovereignty to counter the EU’s centripetal force: some defend sovereignty when the conditions for the case to shift from a procedural to a substantive plane are no longer met.

This is what supremely bothers the ECJ, which is desperate to get rid of it. Putting in a single discourse Internationale Handelsgesellschaft and EuroBox Promotion amounts to a narrative escamotage whose purpose is twofold: to tie primacy to common values straightforwardly while obliterating previous stages, so that national courts’ claims are deprived of legal anchorage.

Conferral: the supreme evil

Yet, the Treaties repeatedly mention the conferral principle as foundational to the EU integration. That principle is not a hollow box inserted at some points in the Treaties to please foolish anti-Europeanists. It entails that no legal basis can be made home for legal measures that go too far from its wording while touching upon too sensitive rights and interests of the States and the peoples concerned. Essentiality, more than proportionality and subsidiarity, seems the right key to its functioning: a principle well-known not only to the German Court, but also to the common constitutional traditions, as it undergirds the reserve de loi. The Court of Justice, too, deployed it to restrain secondary legal bases, in Köster – noteworthily, delivered on the same day as Internationale Handelsgesellschaft.

Protecting the conferral is crucial to giving a sufficient legal basis to EU law norms – “sufficient” being understood in terms of legal security and “democracy”, i.e., as a substantive link with the actual consent of the States and the peoples.

Militancy

That the fifth value listed in Article 2 TEU can be used to derive specific rules from statements of principle that had never been recognised such a capability before is the core of the Rule of Law doctrine. Cunningly anticipated in ASJP, it is being deployed as a political weapon against regimes whose policies are claimed incompatible with EU’s foundations.

What happens if EU law is deployed to fight a political struggle, rather than to solve it?

One consequence is that a subversion of legal logics affects the arguments deployed. The “captured court” rests on a circular fallacy, as whether that court can be considered “captured” under EU law is the question to be answered and cannot be part of the answer itself. That the ECJ decides on national identities under Article 4(2) exposes another fallacy: it builds on a refuted irenic assumption. Both arguments find little shelter in the Treaties and poor support in case-law: they self-constitute their own normativity. Formal constraints, as those provided by written texts, are ousted with little care for legal security and democracy, in the name of a European militancy that brings Europe towards destinations yet to be uncovered.

Self-sacrifice

In the name of this militancy – to which primacy is instrumental – the ECJ is slowly, but relentlessly, hollowing out its own jurisdiction. Freeing EU law from textual constraints stemming from national constitutions is eventually undermining “law” itself.

This is evident in another subversion of legal logics the Rule of Law doctrine entails. In the ECJ’s words, the States’ initial consent, given una tantum under Article 49 TEU, entails “respect” for Article 2 values,

“…EU law being based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values… That premiss both entails and justifies the existence of mutual trust between the Member States and, in particular, their courts, that those values upon which the European Union is founded, including the rule of law, will be recognised…”

Cause and effect are undiscernible. If the mutual trust underpinning primacy is the effect of the existence of common values, there is a legal, yet faltering, yardstick that measures the commonality to constrain primacy. Conversely, if mutual trust is the cause of the commonality, that yardstick does not measure such commonality, but is measured by it. This latter commonality hardly tolerates judicial scrutiny, for it depends upon political agreement of the élites running the EU and the national institutions. The more the political sensitivity, the less the judicial scrutiny: it is the general rule of the permacrisis that occupies the centre of EU’s debates today.

The idea that forms cannot, and ought not to, resist the movement of the forces shaping Europe is not new to international law: it was there a century ago. A difference is that it was hosted-nurtured by one State that needed to create a grand-space for its own sake; today, that space is already available. Eerily enough, appeals to values come again with a twofold side: domestic militancy couples with military stances against powerful neighbours, yet in the same alleged view of defending one’s own values.

This approach is oft presented as a necessary, emergency-based response in a world whose abrupt changes cannot be tamed otherwise. Multiple versions of the TINA argument – There Is No Alternative – have been offered at length as a justification for the authoritarian turn the EU suffers at national and supranational level.

The argument that sensitive political choices lay behind such a slogan has been already developed. Suffice here to say that, if this argument had some truth, it would mark a regression from the standard of modern constitutionalism itself, which rests on the figure of a self-determining man, faber fortunae suae. A human being who is impotent before the forces that dominate the world is matter for pre-constitutional times, when law-making flew largely above human heads that were simply to bend before super-human powers. Such a human figure is depicted as the champion of the post-WWII constitutional and Euro-unitary values: paradoxically, yet in the name of a non-regression principle from those very values.

Open-mindedness

It comes with bitter irony that Article 2’s normative force claims to work in defence of the État de Droit while getting rid first of the État, and then of the Droit. Such blindness is as scary as the magnitude of the powers threatening today’s world, and contributes in the same measure to the decline of public reason, sub specie of dialoguing arguments, in Europe’s public space. Accordingly, the ECJ would be the supreme court of a rule-of-law-based polity, but ready to manipulate the constitutional law of that polity in order to protect its political core – namely, the status of the élites that have been running the integration process. A wannabe constitutional court that, in fact, would do just the opposite as what one expects from a constitutional court.

There are motives enough to support a radical turn of this approach.