QUESTIONING ‘PRIMACY’: A PROPOSAL FOR A SYSTEMATIC UNDERSTANDING OF ‘IDENTITARIAN ARGUMENTS’ IN NATIONAL CONSTITUTIONAL CASE-LAW

1. Supporting unconditioned primacy: established practice and constitutional maturity[Up]

First: established practice, which is a twofold argument; advocates thereof claim that a practice of this sort must be considered settled (‍Arena, 2018: 300) and that it is also consistent with the practice of the international treaties establishing so-called ‘internal primacy’ – i.e., the priority of their own norms over national norms (‍de Witte, 1984: 425).

Second: constitutional maturity, which unfolds along a threefold line. First: the dispute on priority is a fatiguing perpetuation of the ‘sovereign’ question, which proves inappropriate in light of the accomplished constitutionalisation (‍Rodríguez Iglesias and del Valle Gálvez, 1997: 239) – as it could be inferred from national constitutions, too (‍Lupo, 2020: 379). Second: were it not so, unjustified discriminations would be allowed between a State seeking to skip the application of Union law and all the other States having to respect it nonetheless (‍Fabbrini, 2015: 1022 and ‍Kelemen, 2016: 139) which would be unsustainable for the Union in both political and constitutional terms. Third: eventually, a Member State must either stay or exit, withdrawal being the only suitable option for those who do not want to follow any longer the law of the Union as decided upon by the Court of Justice (‍Kelemen, 2016: 148-‍149).

Against these arguments, two lines of reasoning can be deployed.

2. Against unconditioned primacy: challenging established practice[Up]

As for established practice, an early answer is that such a practice cannot be declared settled so long as there are national constitutional judgments attesting to the contrary. Then, typical replies sound as follows: Member States did not contest it on the intergovernmental plane and even consented to mention the primacy principle in the Declaration No. 17 attached to the Lisbon Treaty.^[3] Such replies introduce the second part of the argument: consistent international practice shows that, once the provisions contained in a given treaty are granted priority on national laws, such priority extends to national constitutional laws, too.

Then, it should be objected that such practices, stemming from the law of international treaties, may hardly be used in straight forward support of Community (Union) law. In fact, the latter has a peculiar characteristic, labelled ‘supranationality’ (‍Mosler, 1951: 245; ‍Schuman, 1953: I; ‍von Bogdandy, 2000: 27): it allegedly establishes ‘a legal order of a new kind’ i.e. different in nature from international law (‍Constantinesco, 1966: 1). This difference, however phrased, has not remained in the empyrean of theory but has had a severe practical consequence: the subversion of the hitherto well-settled Lotus doctrine, according to which limitations to States’ sovereignty cannot be presumed.^[4] In fact, EEC law claimed priority on national laws within the boundaries of a teleologically oriented, ever-expanding scope of application (‍Bartoloni, 2018: 10) by referring to a special autonomy that made it different from international law (‍Pescatore, 1970: 167).

Hence, to refer to international law practices as evidence backing Community law’s unconditioned priority looks like a logic fallacy. Either Community law is a kind of international law, or ‘a law of a new kind’: it cannot be both at the same time. If the former is true, priority can be accorded, but restricted to specific tasks attributed via the Treaties to the Community bodies. If the latter is true, priority can be accorded within an ever-expanding area; yet, it cannot be justified by referring to the international law practices – which would tie it to a more restrictive interpretation of its applicative scope (‍Zarbiyev, 2012: 247) – but must rely on some other arguments (‍Stein, 1981: 1) to explain how once sovereign States turned into ‘Member States’ (‍Bickerton, 2012: 21).

Then, as much as Community law’s teleological, ever-expanding applicative scope stays undisputed, reference to international law is, alone, insufficient to back primacy on national constitutional laws.

3. Against unconditioned primacy: challenging constitutional maturity[Up]

As for the second line of arguments, constitutional maturity is generally marked by a certain political bias echoing the ‘nobility’ of the European cause. To put it frankly, as Joseph Weiler (‍2012: 248) did, it echoes a messianic idea of Europe as a sort of ambassador of civility; ideological drifts aside, it looks at a united Europe as an ‘end per se’, and one that deserves a battle to be fought regardless of its social, political and economic costs (‍Fabbrini, 2015: 1018; ‍Kelemen, 2016: 150; ‍Baquero Cruz, 2018: 28). This approach inherits the enthusiasm of the early ‘Community lawyers’ who used to confuse the ‘wish’ for the ‘ought’ (‍Treves, 1969: 15); yet, such an enthusiasm may be outdated (‍Dawson & de Witte, 2013: 817) as the idea of a Union bringing benefits to all members on an equal plane has been aptly challenged in more recent times (‍Chiti & Teixeira, 2013: 683). Thus, should ‘constitutional maturity’ entail the Union law’s overwhelming priority even vis-à-vis the overwhelmed Member States, it would look like a moral argument underpinned by an unquestionable ‘preferability’ of Europe’s unitary destiny whatever the consequences; then, it would only find justification in political stances ‘against constitutional pluralism’, as advocates of this position openly, and honestly, declare (‍Baquero Cruz, 2018: 29).

Hence, the second part of the argument falls into circularity. If one takes the a-priori view that Union law must reject all differences, then such differences amount to a discrimination; otherwise, they do not.

At this point, one may rightly question the Treaties to discern whether such an aprioristic assumption is consistent with Union law. In this regard, an argument is offered by the link between Articles 4(2) and 9 TEU. Article 4(2) provides that ‘the Union shall respect equality of Member States before the Treaties, as well as their national identity inherent in their fundamental structure, political and constitutional’, thereby following a formal equality principle. Article 9 TEU adds that the Union follows the equality principle among Union’s citizens ‘who shall receive equal attention’ from the Union’s ‘institutions, bodies, offices and agencies’ (‍Zaccaroni, 2021: 20). If the two are read in combination, a twofold consequence may be advanced. First, a kind of substantive equality among Union citizens comes to supplement formal equality among States. Second, this does not entail straightforward application of a uniform law but requests careful consideration of mutual differences – for ‘equal attention’ does not impose ‘uniformity’, but rather entails a more cautious, better-pondered action.

Following this line, one would be taken to argue that, while respecting formal equality, the Union also pursues substantive equality as a result of its own actions. This would lead to a tolerant stance on primacy (‍Weiler, 2001: 54): the Union understands that Member States bear specificities as far as their inner political-constitutional structure is concerned, and undertakes as a duty of its own to pursue common solutions for common benefits, on an equal footing, through fair political negotiations (‍Goldoni, 2012: 385).

As a corollary, it would descend that, while a situation in which one Member State is made exempt from applying a piece of Union law surely reflects a formal discrimination, yet this discrimination is lawful if it prevents substantive inequality. Hence, as that piece of Union law affects rights-interests related to the ‘fundamental political and constitutional structure’ of the State concerned while giving advantages to others, it would contrast with Union’s primary law should it be recognised unconditioned primacy nonetheless.

4. Follows: the flaws of ‘radical Exit’[Up]

The latter position is countered by radical Exit arguments: eventually, if a Member State rejects the consequences of adhesion, it cannot seek a Union law’s application à la carte but must leave the Union altogether (‍Kelemen, 2016: 148; ‍Gragl, 2018: 277). Though fascinating and prima facie persuasive, as often radical arguments are, this claim proves untenable in constitutional terms (‍Wilkinson, 2017: 213). In fact, Member States consented to a Union that respects their most sensitive rights-interests. This assumption, while coherent with the idea of the integration as the supranational prosecution of the post-WWII national constitutional settlement, dates back to the ‘empty chair impasse’ (‍Corsetti, 2012: 461) and points to the ‘Luxembourg Compromise’ as the conditio-sine-qua-non to depart from unanimity in Council (‍Weiler, 1981: 267).

Another corollary stems from this argument, which alludes to the ‘European’ role of the national constitutional courts (‍Komárek, 2014; ‍Dani, 2017: 785). Such courts are called to shape the boundaries of the Union law’s priority-in-application from the national side: if the Court of Justice has a monopoly of the interpretation of Union law, this may not per se include a monopoly over decisions concerning priority on national laws. In fact, should the Court of Justice alone decide upon the latter, it would result in a self-assessment (self-limitation) of Union law ‘irrespective’ of the position of the Member State concerned – which hardly matches the ‘respect’ that the Union, in light of Art. 4(2) TEU, pays to national self-determination as shaped within the political-constitutional structure of that State. Hence, the argument linking national identity, as featuring in a provision of Union law, with the interpretive monopoly of the Luxembourg Court, falls into hyper-formalism (‍Tizzano, 2012: 811): a decision on primacy is not unilateral (‍Di Federico, 2019: 333) but stems from the interplay of the national and supranational courts involved (‍Bobić, 2022: 56).

Therefore, one is led to conclude that identitarian arguments raised by national courts are, in principle, admissible.

5. Rating identitarian arguments[Up]

The question becomes whether such arguments are all equally admissible, i.e., whether specific features can be identified which enhance, or reduce, their admissibility. Assuming that primacy is a matter for legal interpretation and that the Union’s constitutionalisation comes as a consequence of primacy, the answer follows a fourfold analysis. First: what arguments for legal interpretation have been raised to establish primacy despite the strict positivism that dominated international law at that time. Second: what further arguments have been raised to support primacy vis-à-vis national constitutional law, too. Third, under what conditions has such an enhanced primacy been confirmed by national courts, and how has it crystallized in Maastricht to account for the Community’s constitutionalisation. Four: how identitarian arguments must be advanced to comply with such conditions, i.e., with the constitutionalisation’s formula.

The first three lines are walked along in the next paragraph; the remainder of the work contains a tripartite comparative analysis of identitarian arguments, a proposed pattern for such arguments, and some conclusive reflections.

1. Beyond International Legal Positivism: the Planungsverfassung[Up]

Behind this abrupt marginalization of hitherto settled theories lays an innovative idea, merits for which should be credited to Carl Friedrich Ophüls, a German jurist and diplomat, who used to name the Treaties Planungsverfassungen (planning-constitutions) since the 50’s. This name was given a more specific connotation in the context of a Symposium on economic-administrative planning, published in a book edited by Joseph Kaiser in 1965.^[5]

‘Planning’, in that book, was considered a distinctive feature of a constitution (‍Scheuner, 1965: 67) and, in Ophüls’ terms, one that marked the Community Treaties, too. The underlying idea can be summarised as follows: bound by a special intent to ‘lay the foundations of an ever-closer union’ among themselves and their peoples, Member States embraced in a common planning entire sectors of their national economies, which was, assumedly, a typical constitutional feature; thus, the Treaties they ratified, while disposing for the ever-increasing, autonomous evolution of the Communities in execution of such planning, were of a constitutional nature, though of an ‘in-planning’ one (‍Miaja de la Muela, 1974: 987).

As for the scope of this work, four implications, perhaps unpredictable for Ophüls himself, bear the mark of this construct.

One: the link between the Member States’ special initial intent and the common planning of their economies points to the Communities as the transposition on a supranational plane of the sociopolitical-economic settlements Member States achieved in their constitutions.

Two: following this line, Community law is assumed as coherent with the sociopolitical-economic settlement enshrined in the Member States’ constitutions and, simultaneously, instrumental to implementing the Member States’ special intent to expand that settlement on a broader scale.

Three: Community law is based on the Member States’ original intent as it implements the Member States’ constitutional project on the supranational plane.

Four: in legal interpretation, the argument of the original consent – based on a State’s initial will – comes to coincide with an argument aiming at implementing that project – i.e., at an ever-expanding, teleologically oriented interpretation of Community law at the expense of national laws.

As a corollary, the Court of Justice is allowed to enter the border of States’ sovereignty without formally contradicting the Lotus doctrine that dominated the interpretation of international law at that time. According to the latter, limitations to States’ sovereignty could not be presumed; yet, in fact, Community law is assumed to expand precisely under the mandate of the State whose sovereignty is breached, and precisely in light of the latter’s intent.

Then, on the wave of the Planungsverfassung idea, voluntarist-positivist arguments are gradually replaced by others in the interpretation of Community law, More precisely: as an ever-closer integration is considered as the supranational transposition of the national constitutions’ settlement that aimed to secure peace-and-prosperity and to avoid the risks of nationalisms, a moral argument supporting an ever-closer integration as an end per se provides to the argument that identifies the Member States’ original intent with a teleological, ever-expanding reading of Community law. In other words: the positivist-voluntarist reasoning that lies at the roots of Lotus eventually overlaps a moral-rational reasoning that endows Community law with an ethical preference on national laws as long as aiming at further integration.

In practice, Planungsverfassung worked as a Trojan horse to induce a turn in legal interpretation whose core translates into the following assumption: Community law must be applied with priority on national laws because it would not reach its effect otherwise. Clearly, according to the hitherto dominant legal logics, the effect of a norm comes as a consequence (effect) of its application and could not be the cause thereof. This subversion is only justified in light of the implications triggered by the influence of the Planungsverfassung on the Community’s early integration.

2. Converging Constitutional Change: the Wandel-verfassung[Up]

Even building on such implications, Community law struggled to conquer the fortress of national constitutions. Clearly, Planungsverfassung-based tools did not suffice for primacy to fully settle, as constitutional lawyers raised up against it as Community law’s expansion affected national constitutional rights.

At this juncture, a concept coined by the German scholar Hans-Peter Ipsen (‍1983: 29) happened to offer the constitutional background needed to support such an enhanced priority: the Wandel-verfassung, which in Ipsen’s view came as a result of the Community being a ‘purpose-oriented association’ of States backed by their special initial intent.^[6] With this neologism, Ipsen intentionally ‘played with words’ to fashion a consonance between the evolutionary motion towards a European constitution pivoted by the Court of Justice and the evolutionary change of national constitutions (named Verfassungswandel in established literature: ‍Hsü Dau Lin, 1932) which was to be driven by national courts; both, as a consequence, being credited with identical legitimacy despite proceeding from opposite contexts.

Building on this concept, priority-in-application came to prevalently rely on moral bases, as this argument elaborated on the link between the integration and the project enshrined in the national constitutions – both reportedly originated from a common moral substrate of shared values. Accordingly, national constitutions and an alleged European constitution were reported to converge in a single stream of constitutional change that revolved around these values, in principle shared by all Member States and understood as the legacy Europe was to defend against the comeback of nationalisms. From such values, distilled in common constitutional traditions, the Court of Justice was entitled to derive general principles of Community law to be applied with priority on national constitutional laws even when fundamental rights were at stake (‍Tridimas, 2015a: 23).

While supplementing teleology in backing the Union law’s priority-in-application, this assumption completes the turn from a positivist-voluntarist to a moral-rationalist reading of Community law (‍Campanini, 1965: 25). It offers the Member States’ special intent a constitutional certification based on an assumption pertinently dubbed ‘irenic’ (‍Luciani, 2006: 1644) as flowing from common values, the converging constitutional change that encompasses the States and the Union would prevent the very emergence of political conflicts between claims raised by competing authorities. These conflicts would rather be blunted and turned into legal disputes to be treated within the multilevel réseau judiciaire européen (‍Bailleux, 2009: 341).

As for the purpose of this work, the corollaries of the Wandel-verfassung’s influence on the integration are four and lay the pillars of the Community’s constitutionalisation.

One: as both derived from common values, national constitutional principles coincide with Community law’s general principles – violations of national law being violations of Community law, too, and vice-versa (‍Faraguna, 2015: 174).

Two: as supreme constitutional principles constrain national constitutional reforms, too, Community law’s frontiers coincide with limitations to national constitutional reforms, too, as both revolve around the same common values.

Three: as the mutual borders overlap, no area of national law is in principle precluded to Community law, and no reserved competence may be claimed for national law (‍Rossi, 2002: 565).

Four: the Court of Justice prevails on national constitutional courts even if fundamental rights are at stake, as it applies on a Union-wide scale the same law – better: a law allegedly stemming from common values hence, equivalent as for the content of the protection provided – that national courts apply domestically (‍Lenaerts, 1999: 423).

Thus, as the Community’s constitutionalisation kicks in, primacy is openly accorded on national constitutional laws, too. However, such a primacy only exists within the perimeter of the constitutionalisation’s abovementioned pillars, i.e., as long as the irenic assumption underpinning the constitutionalisation is not contradicted in practice.

3. A ‘constitutional balance’ to accommodate primacy[Up]

Confirmed by landmark judgments of the Italian Constitutional Court (Granital)^[7] and of the German Federal Constitutional Court (Solange II)^[8] the constitutionalisation leads to Art. F of the Maastricht Treaty (‍Gaja, 1990). This provision lays in written the conditions for this process to support Community law’s priority-in-application on national (constitutional) laws. Accordingly, the new-born European Union (EU) respects Member States’ equal sovereignty exercised by democratic self-government while protecting fundamental rights by equivalent standards in comparison to national laws.

This provision confirms that acquiescence to primacy did not come without guarantees. As noted in Weiler’s well-known investigation, the transformation of Europe received as much impulse from ‘integration through law’ as attention from the political sphere (‍Weiler, 1991: 2403). The Luxembourg compromise consolidated a consensus method at the intergovernmental level, which was crucial to overcome the ‘empty chair’ crisis; hence, it was perpetuated in the relations among Member States, which never really abdicated to their ‘space-to-think’ in European affairs (‍Nugent, 2017: 21; 111).

This assumption survives the rise and decline of the Constitutional Treaty and enters the Treaty of Lisbon. In fact, as far as Art. 4(2) TFEU is concerned, the safeguard of ‘national identity’ (‍Guastaferro, 2012: 263) enshrined in the political-constitutional structure of a State seemingly alludes to a suspension of Union law’s priority (‍von Bogdandy & Schill, 2011: 1417) which elucidates the link between primacy and a duty of fair cooperation on the political side (‍Faraguna, 2017: 1621). While prioritising qualified majority to unanimity in Council, this duty recalls the formula that Weiler borrows from Hirschman (‍1970: 19), Exit, Voice & Loyalty. Accordingly, in exchange for loyalty to Union law: a sort of ‘federal loyalty’ (‍Klamert, 2014: 47) – States are granted rights to voice in law-making to an extent that their fundamental structure cannot be affected by EU law.

This arrangement points to a stabilization, yet precarious and dynamic – like riding a bike on an endless road – of the Union’s after-State space, which works as a surrogate for a State-like stabilized political authority: it provides guidance as for the law applicable in that space.

Dwelling on the characteristics of such a peculiar constitutional arrangement would be too burdensome a task for the limited scope of this work. However, for the sake of clarity and brevity, one may describe this peculiar (un)settlement (‍Walker, 2014: 529) in the guise of a balance. In fact, the achieved compromise points to a threefold equilibrium encompassing the relations between: 1) the Union and the Member States; 2) the institutional arrangements and the legal acts; 3) the moral/rationalist and the voluntarist/positivist elements in law-making.

According to 1), the Union and the Member States cooperate on the assumption that, should any piece of Union law breach sensitive rights-interests of a Member State, it would be, in principle, suspended in that State as for its binding effects until the conflict receives adequate political solutions.

In light of 2), the Union citizens are to democratically determine the content of the rights they are recognised through the national-supranational institutional architectures, so as to meet through fair political bargaining the ‘equivalent standards’ EU law protects judicially. Hence, national sovereignty stays in a circular relation with the protection of rights and these rights would be genuinely recognized, rather than octroyés by an authority beyond the citizens’ control.

Finally, under 3), the States’ original intent must couple with a sufficient(ly) solid consent supporting today’s Union law. Hence, the latter cannot consist solely of general principles of doctrinal and judicial descent but must also keep effective links with the voluntas of those who must obey it.

Then, the question is whether the arguments deployed to oppose primacy comply with Union law whatever their form-content, or if they need certain requirements to be in line with the Union’s constitutionalisation – i.e., with the constitutional balance governing the Union’s space.

1. Hungary[Up]

The Hungarian case must be read in the context of the constitutional crisis begun in the aftermaths of the 2010 elections, as the right-wing Fidesz party seized a majority in the Parliament and Viktor Orbán was sworn in as Prime Minister (‍Bánkuti, Halmai & Scheppele, 2012: 138). Pursuant to the adoption of a new Basic Law, numerous restrictive measures impinging on fundamental rights were adopted, but (partly) cancelled by the Constitutional Court (‍Lembcke & Boulanger, 2012: 269) once they were transposed in acts of constitutional rank (‍Boros, 2013) the Court went as far as to craft a doctrine of ‘unconstitutional constitutional amendments’ to strike them down (‍Halmai, 2012: 182). Yet, the Government eventually prevailed in the duel, the Court suffering reductions in powers and independence of its members (‍Spuller, 2014: 637).

As a result, Hungarian constitutional judges have been criticized for supporting the Government’s stances, especially on questions such as the discipline of migration flows. By Decision 22/2016,^[10] the Court ‘rubber-stamped’ (‍Halmai, 2017: 1) the Government’s arguments on ‘Hungary’s constitutional self-identity’ to back the highly-controversial Fidesz Cabinet’s position (‍Halmai, 2018: 25). In the Court’s view, as fundamental rights are at stake, a scrutiny on the ‘violation of human dignity, the essential content of any other fundamental right or the sovereignty (including the extent of the competences transferred by the State)’ is comes with by a review of ‘the constitutional self-identity of Hungary’.^[11] Yet, the latter prevails, for it ‘is not a list of static and closed values’^[12] but covers an unlimited range of cases in which Union law may affect ‘the living conditions of the individuals, in particular their privacy…their personal and social security…their decision-making responsibility, and Hungary’s linguistic, historical and cultural traditions’.^[13] The Court openly subordinates the exercise of sovereignty and the protection of rights to consistency with such identity, which is ‘not created, but merely acknowledged by the Fundamental Law’, and, therefore, cannot be disposed of by the State via international treaties.^[14]

Clearly, this argument neglects the Union’s constitutional balance as hitherto construed, for two main reasons.

One: as conceived of in all-embracing terms, national identity swallows sovereignty and – despite the Court’s caveat^[15] – deprives it of any procedural value.

Two: as it is the State who exercises powers via Union’s institutions, no conferral of powers, but only attribution of tasks occurs (‍Münch, 1957: 271) which excludes the ever-closer-union teleology as a self-increasing limitation to sovereignty and leaves the protection of constitutional rights in the hands of the State alone.

Therefore, a relation between procedural breaches of sovereignty and material violations of rights is excluded: both are reduced into identity, a concept whose boundaries the Court considers as an a-priori to the whole law-making. This argument aims neither to protect nor to restore the Union’s constitutional balance: it denies primacy for reasons that rather point to national identity as a barrier for foreign law to apply in Hungary (‍Körtvélyesi & Majtényi, 2017: 1721).

2. Estonia[Up]

At the opposite pole, but at the same latitude as for the purpose of this work, the Estonian Supreme Court elaborated on the Union’s constitutional balance when adjudicating on the constitutionality of the ESM.^[16]

The Court acknowledged that the Estonian Constitution builds on separation of powers and protection of rights, the power being ‘vested in the people’;^[17] yet, it refused to make Union law’s applicative priority contingent on compliance with both (‍Ernits et al., 2019: 817). Therefore, Art. 4(4) ESM – providing a speeded-up procedure for concession of financial aids that might bind Estonia to a contribution of around 8% of the national budget without Parliament’s consent – was held constitutionally lawful.

The Court contended that the Parliament, by ratifying the ESM, legitimately disposed of constitutional powers and that the principle of proportionality was respected (‍Ginter, 2013: 335) although the disposal entailed irreversible self-limitations.^[18] As the judges put it, the aim of Article 4(4) ESM is to pursue the ESM objectives in case of emergency, i.e., to safeguard the financial stability of the Eurozone as a whole; and this aim is the most compelling when urgency is the utmost, as it was said to be the case (the urgency-emergency overlap staying undisclosed, and unaccounted for, in the reasoning).^[19] Then, as Estonia belongs to the Eurozone, ‘a threat to the economic and financial sustainability of the Euro area is also a threat to the economic and financial sustainability of Estonia’, being ‘unlikely that Estonia would be financially or economically successful’ otherwise.^[20] As a result, the objective of the Eurozone (defined by the Eurozone authorities solely) is by definition coincident with the objective of the Estonian Constitution, the latter depending, in parte qua, on the former (‍Fabbrini, 2014: 116). The Court is crystal-clear on this point: ‘[b]y disregarding the common purpose of the [Eurozone] Member States or the measure planned for the achievement thereof, Estonia cannot follow its objectives arising from the Constitution’.^[21]

Such a statement does not go without constitutional repercussions; as for the objective of this work, it must be noticed that, albeit the ESM is held lawful, the Union’s constitutional balance is neglected in all the three elements above elucidated.

One: the political genuflection Estonia accepted makes it substantially incorrect to say that equality among States is respected.

Two, the relation between national sovereignty and protection of rights is overturned, the two rather being in reciprocal opposition: in order for rights to be protected, sovereignty must be relinquished – though the citizens of the other States retain, in principle, their rights to democratic sovereign self-determination.

Three, since Estonia entered the Eurozone, the protection of national constitutional rights depends on circumstances that are to be accepted as unquestionable facts, as coming from a superior authority endowed with unchallengeable expertise. Yet, they are political decisions taken at a level in which Estonia’s participation in the decision-making is simply insufficient to secure an effective right to Voice, but accepted nonetheless.

Conclusively, the argument construed by the Estonian judges and discarded to accord unconditioned priority to Union law mirrors the Hungary’s introvert argument. Hungary alters the Union’s constitutional balance to affirm its own self-identity as a bulwark against non-national laws; Estonia contradicts it by giving in its own sovereignty altogether, while rights are protected as a consequence of a concession deliberated elsewhere.

1. Italy[Up]

Pursuant to the Court of Justice’s response in Taricco,^[22] the Italian Constitutional Court, via preliminary reference, held that the norms establishing limitation periods in penal law are of material (as opposed to procedural) nature, thus covered by the legality principle.^[23] Accordingly, before this principle, a norm establishing limitation periods is held equivalent to a norm establishing a crime. Yet, the two situations are at polar opposites as regards the subjective element of the convicted. In the latter case, the legality principle prevents that somebody is perpetrator for a conduct that was not a crime when she acted (nullum crimen sine lege); in the former, the same principle protects norms that put an end to the prosecution of conducts whose qualification as crimes was known to the perpetrator when she acted. Hence, whether they deserve equal status under the legality principle is far from obvious: de facto, such construct is unique to Italy (‍Piccirilli, 2018: 814).

Be it as it may, the Court held that, as penal law falls outside the Union’s competence, ‘Member States are free to follow their own constitutional tradition’, and the Court of Justice must accept it as part of Union law (‍Bernardi, 2017: 17). ‘[B]uilding on this right premise’, a wholly material argument is raised to shield the Italian legal order from the application of a Union norm based on Article 325 TFEU (concerning effective protection of the Union’s financial interests) which would have prevailed on national laws concerning limitation periods for the sake of an effective protection of the Union’s financial interests. Such norm – the Court specified – is ‘totally ineffective’: the wording of Art. 325 TFEU makes it ‘irremediably indeterminate’, therefore in breach of the legality principle.^[24]

In the preliminary reference, the Court went to say that supreme principles and inalienable rights of the person belong to a reserved competence that Union law is bound to respect as such – a principle re-affirmed in a subsequent judgment on the same topic.^[25] This is the well-known Italian version of the identitarian argument: a ‘counter-limit’ whose range of application is basically left in the hands of the Constitutional Court (‍Cartabia, 2016: 37; ‍Amalfitano & Condinanzi, 2015: 176). Notably, in this view, national law trumps Union law regardless of the national standard of protection for the fundamental rights at stake (whether equivalent, lower or higher than the standard of other Member States, or of the Union itself) which questions the very foundations of the ‘common constitutional traditions’ concept (‍Fichera & Pollicino, 2019: 1097).

However, in M.A.S.,^[26] the Court of Justice apparently accepted this construct, as uniform application of Union law was sacrificed, and Italy’s national courts were freed from the duty to give applicative priority to Union law in case of breach to supreme national principles (‍Rauchegger, 2018: 1521).^[27]

For the purposes of this work, it must be noted that the argument raised by the Court fails to mention a violation of national sovereignty on the procedural side.^[28] Consequently, Italy looks unavailable to engage in negotiations on penal limitation periods aiming at a more effective protection of the Union financial interest: the issue is made impermeable from Union law and entirely left to the Italian political arena.

At this juncture, it is worth noting that in 2019 the then parliamentary majority passed a reform aimed to stop limitation periods after a first-instance trial, which entered into force on 1 January 2020. That reform fully occupied national debates since the pandemic blew up; it raised a huge wave of criticisms among commentators and occasioned unprecedented protests by the Criminal Bar Association, as well as querulous complaints on respectable newspapers (‍Vosa, 2020: 171). The heated tones igniting the still-to-date ongoing debate on the issue^[29] attest to the utter sensitivity of that topic in light of the political-constitutional structure of the country: apparently a criminal law issue only, it has turned constitutional, as well documented in the ‘90s literature (‍Padovani, 1996: 448; ‍Pulitanò, 1997: 3).

It can be concluded that the identitarian argument raised by the Italian Constitutional Court aims to protect the Union’s constitutional balance but hardly fosters a restoration thereof.^[30] Spain, in Melloni, walked a similar path, yet unsuccessful in practice, but with some differences.

2. Spain[Up]

The Spanish Constitutional Court declares itself to be legally bound to interpret national law in a manner that is consistent with Union law as interpreted by the Court of Justice.^[31] Reference to this duty must be found in the national constitutional openness to international law as enshrined in Article 10(2) of the Constitution (‍de Carreras, 2000: 321) which allegedly supplements Article 93 in allowing prior application to international law and Union law (‍Sáiz Arnáiz, 1999: 20). As a consequence, the right to judicial defence protected by Article 24 of the Constitution (‍Arzoz Santisteban, 2020) must adjust to the Union standard even if the latter is apparently inferior (‍Torres Pérez, 2014: 308). However, no radical imposition of unconditioned primacy emerges from Melloni’s rationale (‍Donaire Villa, 2017: 637): the Court did not subscribe^[32] to a fully substantive reading of Article 93 (‍Muñoz Machado, 1983: 59) and maintained the distinction elucidated in the Declaración n. 1/2004 on the Constitutional Treaty’s compatibility with the Spanish Constitution^[33] – according to which supremacy (supremacía) is to be distinguished from ‘priority-in-application’ (primacía). This distinction (‍Requejo Pagés, 1992: 41) echoes the German above-cited divide between priority-in-validity and in-application: supremacía recalls hierarchy and refers to the Constitution only, whereas primacía ‘occurs for a number of [de facto] reasons’ and suits Union law.^[34] In light of that Declaración, in cases of clash between ‘future developments’ of Union law and the Constitution, the people’s sovereignty principle would urge the Court to deny primacía and to restore supremacía, that is, the supremacy of the Spanish Constitution that enshrines the roots of national self-determination and protection of rights.

Thus, albeit the identitarian argument is phrased as a simple conflict of material rights, an account of the Union’s balance is envisaged, which may prompt the Spanish Court to re-formulate the argument in a fully-comprehensive way should the circumstances arise (‍Alonso García, 2005: 341). Moreover, the Spanish identitarian argument does not display Spain’s reluctance to engage in political negotiation on the issue(s) concerned, and to adapt its position should the relevant decisions be backed by acts based on commensurate political responsibility (‍Azpitarte Sánchez, 2002: 69).

1. Denmark[Up]

The Danish Supreme Court in Ajos^[35] issued a preliminary question to the Court of Justice on a case of discrimination on grounds of age in the private working sector. The norm concerned – the ban on age-based discrimination – is laid down by Article 3 of Directive 2000/78. However, in line with Mangold-Kücükdeveci, the Court of Justice holds that such norm is not based on that Directive, but on a general principle of Union law (‍Tridimas, 2015b: 425) – non-discrimination on grounds of age – to which the Directive 2000/78 ‘gives expression’.^[36] As a result, limitations to direct effect of a norm based on a Directive do not apply (‍Robin-Olivier, 2014: 165); what applies, so long as the case falls within the competence of the Union, is the correspondent general principle.^[37]

The Danish Supreme Court highlights that such application of that principle results in breach of legal certainty (‍Krunke & Klinge, 2018: 172). Noticeably, the Danish judges do not seek to directly balance the two principles, but refer to the Danish Act of Accession as a benchmark to evaluate whether compliance with the duty to interpret national law in a manner consistent with the non-discrimination principle (or not to apply it at all) falls within the limitations to national sovereignty Denmark has committed to. In this light, the Court does not impose its own constitutional standard as part of Union law – as the Italian Court does – but raises the following question: ‘is this measure of Union law sufficiently based on the powers that Denmark conferred on the Union institutions? (‍Madsen, Olsen & Šadl, 2017: 140). The answer builds on the travaux préparatoires and refers to the circumstances of the case, as well as to the prejudice that would derive from the straightforward application of Union law (‍Neergaard & Sørensen, 2017: 275) to argue for the negative and free Danish courts from the duty to prioritise the application of that norm of Union law (‍Zaccaroni, 2018: 428).

2. Germany[Up]

A similar line of arguments emerges in German Federal Constitutional Court’s case-law on the European integration. The Bundesverfassungsgericht (BVerfG) links the defence of national sovereignty with the protection of material rights to construe an identitarian argument whose anchorage lies in the ‘substantive content of the right to vote’ ex Article 38 Grundgesetz^[38] – which points to an actual right to Voice in exchange for Loyalty.^[39]

The Karlsruhe judges insist on the idea that a measure of Union law must rest on a sufficiently solid legal basis as a tie to an effective consent of the State involved^[40] – all the more so when it comes to measures based on non-parliamentary ‘strands of legitimation’.^[41] ‘Sufficiently solid’, in this respect, refers to both the content of the legal basis itself (to avoid a ‘blanket authorization’)^[42] and to its form, which must display commensurately robust parliamentary ties.^[43]

Albeit disguised as proportionality, which possibly misleads the readers, this reasoning builds on the Wesentlichkeitstheorie (theory of essentiality: see ‍Steinbach, 2014: 381) and refers to the Vorbehalt des Gesetzes (reserve de loi) in German law. Accordingly, secondary law is unlawful if it exceeds the ‘content, purpose, scope’ (Inhalt, Zweck, Ausmaß) of the legislative authorization (‍Ossenbühl, 2007: 183). The needed regulatory density (Regelungsdichte) of the legal basis (Rechtsgrundlage) depends on the sensitivity of the matter concerned; the reason being that, in order to preserve the ‘substantive content of the right to vote’, it must be for the Parliament, as the expression of the people’s sovereignty, to take the ‘essential decisions’ (‍Kloepfer, 1984: 685) – ‘essential’ being understood in view of protecting fundamental rights.

Likewise, if a measure of Union law^[44] is based on a Treaty’s mandate that is interpreted too extensively with respect to the effects sought, this measure is considered as grounded on a legal basis that lacks regulatory density:^[45] it goes ‘too far’ from the (wording of the) mandate that the sovereign people conferred on the Union, and is, therefore, non-binding on national authorities.