Foundations

Abstract

Abstract Chapter 2 explores the constitutional principles underlying the Legislative Priority Rule, those being the principle of pre-emption and the presumption of constitutionality. Together, these principles regulate the relationship between the EU and its Member States on the one hand, and the EU legislator and judiciary on the other. While the principle of pre-emption precludes national Treaty-based discretion and generally promotes market integration, the presumption of constitutionality allows the European Court of Justice to presume that secondary product rules comply with Articles 34–35 TFEU. The presumption of constitutionality thus empowers the EU legislator since the Court must defer to legislative decisions which are assumed either to reconcile the requirements of market integration and regulation or be justified under the principle of proportionality. It can, as such, also provide a counterweight to the pre-emption on national competences, particularly as the EU legislator enjoys scope to recalibrate the relationship between market integration and regulatory goals and/or grant a degree of regulatory discretion to the Member States. Yet the presumption of constitutionality can also strengthen the judiciary at the expense of the EU legislator since it requires the Court to consistently interpret secondary law in line with Articles 34–35 TFEU or, it this is not possible, reach a finding of invalidity. As a result, while the EU legislator can genuinely impact the contours of the internal market for good, it cannot undermine the hierarchy of norms.