Introduction
In July 2020, Professor Vlad Perju, Director of the Clough Center for the Study of Constitutional Democracy at Boston College and Professor of Law at Boston College Law School, published an open-access article entitled ‘Against Bidimensional Supremacy in EU Constitutionalism’ in the German Law Journal (Vol. 21, Issue no. 5). As the title expresses, the article critically evaluates the narrative of bidimensional supremacy of EU law. It challenges the view that EU supremacy is a necessarily bidimensional phenomenon composed of supranational and national dimensions and considers the German Federal Constitutional Court’s recent PSPP Judgment (Case No. 2 BvR 859/15) to support his view.
In the first part of the article, Perju points out how the EU has never regulated the principle of the supremacy of EU law over national law, neither in the Treaty establishing the European Economic Community, nor in the subsequent Treaties. Instead, the principle of supremacy has been developed by the case law of the European Court of Justice (ECJ). The content of the principle of supremacy and the limits of its application are debated, which in itself is natural as the case law of the ECJ is diverse and therefore difficult to interpret. However, there is no doubt that the principle of the primacy of EU law over national law – as the ECJ calls it – is upheld, despite the fact that its scope of application is met with divided delight by the Member States.
Bidimensionality of EU law
According to Perju, it is relatively straightforward what requirements the principle of supremacy places on the national court: it means that if a national provision conflicts with an EU law provision, the national court has an obligation not to apply the conflicting national norm. The difficulty is not necessarily to determine what the ECJ considers the principle of primacy to mean on a theoretical level, but rather in what practical situations the principle applies and its relation to the legal order and constitutions of the Member States.
Perju discusses how scholars commonly believe that EU supremacy is bidimensional (referring to, among others, Joseph Weiler and Neil Walker). The first dimension relates to the supranational level which is expounded by the ECJ from Costa to Simmenthal. The outcome of this dimension is the absolute and unconditional primacy of EU law over national law, the ECJ’s exclusive jurisdiction to set aside EU secondary legislation and the binding effect of the ECJ’s ruling on national referring courts. However, this supranational dimension would be toothless if there was no acceptance and cooperation from national courts. Therefore, the second dimension of EU supremacy is related to the national level. In other words, reception of EU law is dependent on its incorporation into the constitutional orders of the Member States.
Concluding, the bidimensionality of EU law holds that the supranational dimension stands parallel to the national dimension which rejects the absolute and unconditional supremacy of EU law. Perju instead argues that the mentioned bidimensional thesis of supremacy is flawed and inaccurate seen from both a conceptual and an interpretative perspective.
The Fallacies of Bidimensional EU Supremacy
Perju argues that if the EU supremacy is necessarily bidimensional, as most scholars claim, each of these perspectives can and will make mutually contradictory claims. Furthermore, it would mean that the ECJ’s supremacy rulings do not stand higher than doctrines of national courts but rather alongside and parallel with those, even if some national courts do not incorporate rulings such as Costa and equivalent rulings in their constitutional orders.
If all member states had acted in full acceptance of the Costa judgment, then obviously Perju’s article would be less relevant today. However, that is not what the case law of the Member States’ courts has shown. Instead, it has led to a clash of supremacy claims. Perju refers to earlier cases such as Semoules (French Conseil d’Etat), Solange (Case 11-70), Cohn-Bendit (Case 283/81), Maastricht (Case C-137/09) and Weiss (C-493/17) as clear evidence of national resistance to the ECJ’s absolute and unconditional claim of the EU’s primacy over national law. These cases have shown that national courts consider that under certain circumstances their domestic constitution has precedence of application over EU law, and that the bidimensional flow in the EU constitutional order leads to a legal clash. Therefore, Perju challenges the thesis of bidimensional supremacy describing four main fallacies.
- Fallacy of symmetry
The bidimensional thesis, based on the binary logic of sovereignty, mistakenly considers that the national and supranational perspectives are equally analysing and describing a complex phenomenon in terms of its simple or fundamental constituents. However, Perju argues that these two perspectives are completely different and, since the supranational perspective is already multidimensional, focusing on the latter’s integration potential can provide all the advantages of bidimensionality without many disadvantages.
- Fallacy of selection
Perju identifies as a second fallacy the choice between the national and supranational supremacy claims. He argues that the necessitarian claim of bidimensional supremacy lacks an objective basis. The selection between these two perspectives is, according to Perju, not dictated by criteria internal to the choice itself, but preferably by exogenous, political considerations, while asserting to be “independent and disinterested.” In other words, Perju argues that the bidimensional supremacy thesis is based on a certain political and ideological project of European constitutionalism. As such, it is not objective and not disinterested. It is only a constitutional thesis grounded on deeper normative visions.
- Fallacy of construction
The third fallacy put forward by Perju is the fallacy of construction. Accordingly, the denial of hierarchical supremacy in bidimensionality reflects a sovereignty theory where individuals are dual sovereigns as members of nation states and, at the same time, of the EU supranational polity. Perju expressed that when this view is put to the test of political reality, which shows a resistance to the absolute primacy of EU law on behalf of national courts, the internal imbalance between the two views becomes a breaking point. Therefore, he argues for a popular sovereignty theory that provides a more clear and assertive account of supranational constituent power.
- Fallacy of interpretation
Looking at the bidimensional thesis from an interpretative perspective, Perju points out that the empirical evidence, which underpin the theory of bidimensional supremacy is weaker than assumed and relies merely on a few high-profile judgments of national courts. He places great weight on the fact that “national acceptance” of the absolute and unconditional supremacy of EU law had characterized legal dynamics way before “national resistance” and outright rejection did.
Perju argues that the doctrinal case for bidimensional supremacy is focusing on the national courts’ resistance to ECJ judgments affirming the supremacy of EU law and found the PSPP judgment of the German Constitutional Court, which found a decision of the ECJ to be ultra vires, unlawful and non-binding, to support his view. From Perju’s point of view, the PSPP decision reflects a problem of German cast instead of deriving from EU constitutionalism. In this context, national challenges to EU supremacy in cases like PSPP may occur, but it is not necessarily the national understanding of the principle of supremacy.
According to Perju, the PSPP judgment indicates a national constitutional court’s will to go all the way to defend the rule of law and nourishment of “Fiat justitia et pereat mundus”, as Perju puts it. However, what would be the consequences if each Member State considered itself autonomous and act as primus inter pares in the EU context? Perju holds the opinion that the consequence would be a “treaty opt-out” of the Member states fearing the EU expanding its competences and interpreting the principle of conferral in a way that serves them. This would disrupt EU constitutionalism and breach the fundamental principle of equality.
Conclusion and reflection
The article has provided a comprehensive understanding of the inaccuracies of bidimensional supremacy and how it may lead to fragmentation of EU law. The findings suggest that the hierarchical structure plays a critical role in characterizing legal dynamics between EU law and national constitutions. Perju emphasizes that EU supremacy seeks, not only to hinder this sort of fragmentation but also to harmonize the relations of authority between national legal orders of Member States. Consequently, Perju holds a strong position against the bidimensional supremacy view in EU constitutionalism.
The sense of urgency which is apparent in Perju’s article is also perceptible in other recent attempts to explain supremacy of EU law. Koen Lenaerts, President of the ECJ and Professor of EU law at the University of Leuven, in a similar vein, argues that primacy is not merely to address bilateral conflicts between legal orders but also a tool-principle to make sure that Member States are treated equally before the EU law (see Verfassungsblog, 8 October 2020).
This view is supported by other scholars, such as Robert Schütze, who believes that the hierarchy and supremacy of EU law belongs to Europe’s federal nature, which makes it impossible for member states to accord precedence to national law (See Schutze, European Union law, 2nd edn., p. 121). Schütze describes in his book that the EU treaty has formed its own legal system, which came to be an essential piece for the member states legal systems (p. 122). Their courts are therefore obliged to apply EU law over national law. He continues that the conditions and the spirit of the Treaty makes it not possible for member states to grant primacy to a national legal measure over unilateral EU legislations. That measure cannot for that reason be incompatible with that legal system. To conclude, the European law cannot be overridden by domestic legal provisions. Considering Perju’s, Schutze’s and Lenaerts’ opinion on supremacy, it is rational to conclude that the ECJ should have the final say, since it is the only instance that has the authority to ensure that EU law has the same meaning all around the EU. This means that if a Member State undermines the supremacy of EU law and acts unilaterally, it not only shows disrespect towards other Member States, but also leads to the fact that EU law is not applied in the same manner throughout the EU. Consequently, supremacy can be seen as a fundamental principle that upholds important EU values such as respect for the law and European unity.
Jasmine Karlsson and Mansoor Hoffiani
EU Law | Örebro universitet 