Justicia constitucional y principio de primacía¿conflicto de legalidad? o ¿conflicto entre identidades (constitucionales)?

  1. Ainhoa Lasa López
Unión Europea Aranzadi

ISSN: 1579-0452

Year of publication: 2022

Issue: 6

Type: Article

More publications in: Unión Europea Aranzadi


In recent decades, some of the ordinary and constitutional reforms undertaken by certain member states have unleashed a relative political- institutional activism in the Union that contrasts with the perseverance of the European judge in limiting the growing possibilities of national governments and legislators to introduce modifications that restrict the spaces for the application of Union law in the areas of their competence. Specifically, reforms aimed at colonising the different profiles of the common European constitutional principle of the rule of law. In these processes, moreover, the States have had an unusual ally. In fact, they, under the protection of the counter-limits of national identity and constitutional supremacy, have generated a double process of denaturalisation. On the one hand, of the constitutional statement itself, which no longer corresponds to the material presupposition of the compromise between different ideologies and interests; and, on the other hand, of the meaning and scope of the (structural) constitutional principle of the primacy of the European order. With regard to the latter, constitutional judges have attributed to themselves the power to exercise the power to judge the negative validity of Union law in cases of potential conflict with national constitutional provisions, on the basis of the hierarchy of the Constitution, but in clear dissonance with Article 267 of the Treaty on the Functioning of the Union, which reserves this function to the European judge. In this respect, it is interesting to analyse the recent judgment of the Luxembourg Court of 22 February 2022. The reason is not to reproduce the already consolidated case law on the principle of primacy and its interactions with national provisions and decisions, whether of an ordinary or constitutional nature. On the contrary, what is significant about this judgment is that the Kirchberg judges have consolidated in the Romanian "saga" inaugurated on 18 May 2021, the constitutional determinism of the principle of the primacy of Union law and its systemic nature from the conjunction of national and European identities