«Introduction Sovereignty, supremacy, direct effect, Kompetenz-Kompetenz, have definitely been the buzzwords in European constitutional law and they ...»
This situation shows that Article 4(2) CTEU probably will not be able to solve the riddle of absolute primacy as some tend to think129. The complexity of the whole issue is such that the national identity clause does not suffice and cannot be the panacea130. As a matter of fact there is doubt if also the highest courts of the two legal orders have the instruments required to bring this conundrum to an end131. If the two positions, the one of the ECJ and the other of national constitutional courts, cannot be reconciled under such circumstances then perhaps the solution should be sought in political institutions and political decisions132. Available options133 might include changes to the law, treaties or constitutions, or opting for an Irish solution i.e. enacting a protocol declaring the limit of EU law application on a matter of high constitutional importance134. Even though these alternatives are difficult to be achieved, it is to be seen that they are more viable than a withdrawal from the Union135.
Even though on a first glance the textual interpretation of this provision might suggest something else, still the national identity clause will not be able to solve the core problem of FCC, European Arrest Warrant Act case, 2 BvR 2236/04 of 18 July 2005.
For the issue to be even more interesting the Commission in its evaluation report on the directive, wrote: “....
the Commission intends to propose amendments to the Directive, based on an impact assessment.” COM(2011) 225 final from 18. 4. 2011 p. 1. The question is thus if the Commission will consider the requirements of the FCC and if it will able to meet them.
von Bogdandy, supra note 4, (733).
see Chalmers/Davies/Monti, EU Law, p. 199. on the shortcomings of pluralist theories. Also Mayer, in:
Principles of EU ConLaw, 281(311).
See Fragd, supra note 63, (659) “... balancing between uniform application or certainty of law and the fundamental principles of national constitutions will represent an extremely difficult evaluation”.
Kumm, ELJ (2005), 262 (274) and Kumm/Comella, Int'l J. Const. L. (2005), 473(490).
Mayer, in: Principles of EU ConLaw, 281 (311) cf. Mayer, WHI - Paper 2/06, p. 8.
Cf. Mayer, WHI - Paper 2/06, p. 7.
Ibid.p.8 the relationship between the two legal orders that is the source of authority of EU law and based on it the primacy of EU law. This nevertheless should not underestimate the fact that it surely provides conditions for certain level of cooperation among the highest judicial instances in Europe.
However it is very difficult to draw firm conclusions on the future relationship especially that for the time being no head-on conflict has occurred. But under these circumstances one cannot see a strong argument objecting the constitutional courts’ decisions in future to set aside and not apply EU law in exceptional cases where fundamental constitutional value or principle has been infringed. In this sense the upcoming