Abstract
AbstractScholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy.
Highlights
Consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law
I identify the fallacy of symmetry, the fallacy of selection, and the fallacy of construction
I offer an interpretation of the Public Sector Purchase Program (PSPP) judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and non-binding
Summary
The Bidimensionality Thesis Momentous as it might be, the conflict between the Court of Justice of the European Union (CJEU) and the German Federal Constitutional Court in the Weiss/PSPP judgements[1] presents a challenge familiar to the European jurist. The bidimensional thesis as applied to EU supremacy makes a different and more assertive claim In this second and stronger version, the reception into national law of the CJEU’s supremacy doctrine is said to be not exogenous but, in a sense, constitutive of the doctrine itself. See Paul Craig, National Courts and Community Law, in GOVERNING EUROPE 33-34 (Jack Hayward & Anand Meron eds., 2003) This may be correct but since the nature of the Kompetenz that Member states claim to have retained (respect for human rights, preservation of democracy, protection of identity) is more qualitative than sectorial, its irreducibly open textured nature would give member states the power to decide on the existence of a constitutional conflict and revisit at will previous recognition of EU supremacy. Whatever else it would entail, such a move certainly requires the demise of the bidimensional thesis in favor of a hierarchical, if complex, and unidimensional supremacy of EU law over national legal orders
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