Abstract
In the span of a few months in 2020 and 2021, the constitutional courts of Germany, Poland and Romania issued a number of judgments in which they claimed to have clarified the terms of relation between national constitutional law and European Union law. All three courts reaffirmed the unconditional supremacy of their respective fundamental laws over EU law. Apparently they drew similar implications, namely a set of limits to the force of EU law. Such an apparent “consensus” (Polish and the Romanian constitutional judges claimed to be following the lead of the guardian of the German Fundamental Law) together with the temporal overlap of the judgments were regarded as indicative of a mounting rebellion, in which the authority of Union law would be put into question by national constitutional courts, and which, according to many scholars, pundits and institutional actors, would require affirming the “unconditional” primacy of EU law. In particular, the European Commission and the Court of Justice were quick to react, and basically proceeded in such a way that the line dividing primacy and supremacy seems to have been crossed. After an analysis of the three judicial sagas, some fundamental conclusions regarding the relationship between normative orders in the European legal space are drawn. First, the persistence of conflicts highlights the coexistence of claims to ultimate authority in the European legal space, which confirms that the latter is pluralistic in the sociological sense. Nevertheless, secondly, it is not possible to think of the relations between the supranational and the national legal systems by reference to the concept of autonomy. EU law has become such a complete and dense system of legal norms that it is simply no longer possible to regard it as a mere specialised system, as any talk about autonomy would require. Thirdly, the similarity between the decisions of the three national constitutional courts is more apparent than real. In this sense, it is proposed to distinguish between an open (Germany) and a closed (Poland and Romania) conception of national constitutional identity. Fourth, the judicialisation of constitutional conflicts does not seem to facilitate their resolution. The recent change of government in Poland may indeed prove the ultimate political nature of the conflict, which makes it impossible to sort out through the exclusive use of legal means. Indeed, the double Europeanisation and judicialisation of the Polish saga seemed to have favoured the positions of the former Polish government and former parliament rather than serving to contain constitutional involution and democratic backsliding. This should lead us to consider the limits of European law and its authority, ultimately resulting from its lacking a strong democratic foundation.
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