Effectiveness and Primacy of EU Law v. Higher National Protection of Fundamental Rights and National Identity – A Look through the Lens of the Taricco II Judgment

Abstract

The European Court of Justice (ECJ) finally delivered a judgment that puts an end to the so-called Taricco saga − at least for the time being. More importantly, this Taricco II judgment (Case C-42/17 – M.A.S. & M.B.) deals with the relationship between the principles of primacy, effectiveness, and direct effect of EU law, on the one hand, and the concept of national (and particularly constitutional) identity of the Member States, on the other. It also addresses the extent of the possibility for Member States not to apply EU law if it conflicts with an overriding principle guaranteed by their national constitution. In this context, the article aims to assess, firstly, whether the Court overruled its Melloni doctrine with this judgment. Secondly, the article analyses whether the Court, at least implicitly, answered the sensitive question of who is the ultimate judge responsible for assessing whether the “identity clause” enshrined in Art. 4(2) TEU has been violated or not. In conclusion, it is argued here that the ECJ did not overrule its previous jurisprudence (in particular Melloni) and that the ECJ considers itself the ultimate judge for assessing the compatibility of EU legislation with “overriding national principles.”