Unquestioned Primacy Still Begs the Question

Earlier this week, 32 leading scholars of EU law and politics signed the statement that national courts cannot override CJEU judgments, in response to a demonstration by the BVerfG that it actually can. Yet, might is not right, suggest the signatories of the statement, to argue that “the German’s court […] assertion that it can declare that a CJEU judgment ‘has no binding force in Germany’ is untenable and must be forcefully rejected”. We share the signatories’ concern that Weiss might (and most probably will) be used as a pretext for refusing to comply with the CJEU’s rulings and the EU rule of law requirements in Member States such as Poland or Hungary. We are also critical of the conclusion to which the BVerfG arrived in its decision, though we accept some of its premises (i.e., that the national disapplication of EU acts may be justified in some rare and exceptional cases). However, even though we are not all constitutional pluralists, we take issue with some aspects of the reasoning behind the original statement and question the doctrinal and empirical arguments it invokes in favour of EU law’s unconditional supremacy.