The ‘European Multilevel Constitutional Review Composite’ Between ‘Primacy/Precedence’ and ‘Supremacy’: European Legal Integration After the Judgments by the German Bundesverfassungsgericht in ‘ECB-PSPP’ and the Polish Trybunal Constytutyjny in ‘K 3/21’ [pre-publication

Abstract

Apparently, European legal integration currently faces once again its most fundamental doctrinal problem, i.e.,: the nature of EU supranational law and its relation to the traditional ‘superiority’ of constitutional law within its Member States. Since the European Court of Justice (ECJ) repeatedly re-emphasizes the ‘primacy’ and needed effectiveness of the former, this provokes the question about the latter’s remaining functional nature. Indirectly, this issue goes also to the heart of the EU’s judicial-system of a ‘European multilevel constitutional review composite (EMCRC)’. It relates thus not only to the ECJ, but also to the functions of Member State authorities exercising constitutional review powers within the overall EU legal integration process. Whilst this inter-institutional question had received a new impulse with the German ‘Bundeverfassungsgericht (BVerfG)’-ruling of 5 May 2020 in case ‘ECB-PSPP’, it became finally undeniable with the decision of 7 October 2021 by the Polish ‘Trybunal Constytutyjny’ in case ‘K 3/21’; there regarding the persistent EU-Poland ‘rule of law’-conflict. At issue is thus not only a theoretical approach to laws at different levels, but particularly also the EMCRC’s appropriate inter-institutional future setting. Arguably, this in turn calls however for a commensurate differentiation of terminology in both EU law and national constitutional law. This article enquires into a necessary differentiation between EU law ‘primacy/precedence’ on the one, and national constitutional law ‘supremacy’ on the other side. It aims to demonstrate that such distinction cannot be based on legal-theoretical considerations alone. Instead, particular attention deserves also how the courts factually position themselves, functionally, within the EMCRC. The basic aim is thus to show that the legal-conceptual differentiation and the judicial-institutional functions interrelate decisively. With this in mind, a judicial system such as the EMCRC functionally remains plausible only when it builds upon EU law ‘primacy/precedence’, while it must respect the ‘supremacy’ of national constitutional law(s) as a reactive safeguard for national constitutional courts. Accordingly, legal ‘supremacy’ constitutes a national constitutional law principle indispensable for national courts or tribunals exercising constitutional review. While safeguarding their constitutions’ validities, it indirectly also secures their role as ‘guardians’ over possibly excessive EU acts. By contrast thereto, legal ‘primacy/precedence’ arguably defines the ECJ’s fundamental procedural prerogative to regularly lead the way with interpretative ‘inputs’ introduced into the EMCRC. However, under the above basic conceptual distinction, the national judicial bodies’ capacity to ‘supremacy’-based disagree with the ECJ’s ‘primacy/precedence’-based rulings can only commensurate with the EMCRC’s functioning, if certain additional procedural conditions are met: initially, that their constitutional review over ECJ-rulings remains an ‘exception to the rule’, and therefore, that national constitutional review bodies should ‘regularly’ also bear the burden to substantiate their exceptional disagreement Finally, that this should normally be combined to a ‘constructive input’-consideration, i.e.,: one that avoids a ‘misuse’ of constitutional legal supremacy and, instead, allows the EMCRC to think EU law constructively forward. **To substantiate the existence of indications supporting this approach, is this article’s main objective.