-Giuliano Vosa, Associate Professor in Constitutional and General Public Law, University of Catania, Department of Law
This is the eighth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
- Fit… in a militant constitutional framework
After an extended season of polycrisis, a question has been aptly raised by some scholars: whether primacy is still fit for its purpose, that is, to ensure Union law’s applicative priority. Two reasons can be mentioned to justify such a foundational interrogative.
The first reason is twofold and looks at the national legal orders – namely, at the concrete circumstances that bring primacy under question. On one hand, a mere intention to avoid, in certain cases, the straightforward application of Union law has led national judiciaries to re-phrase it. On the other hand, the structural complexity of the Union judicial network – including tools such as dual preliminarity – leads to intricate applicative formulas. Proportionality, vertical and horizontal, is well-equipped to disentangle such knots: it helps operating a multifaceted concept, designed to back Union law in a pluralist, highly diverse polity resting on the ‘culture of justification’.
The other reason points to the supranational level and looks at the evolutionary trajectory of primacy. Born as a competence-rule, primacy initially operated on the abstract plane of normative schemes. Particularly, from Costa v ENEL onwards, it has enabled Union law to enter national legal orders as an order of its own without being treated as national law i.e., subjected to abrogation by successive norms. Today, primacy is being stretched beyond its initial boundaries to cover the divergence, or creep between the competences conferred and the Union law’s applicative scope. As a result, it leaves the abstract level of normative schemes and migrates to the concrete level of normative effects: it turns ‘interpretive, not structural.’
In this light, one may say that primacy follows the constitutional framework it belongs to: the ‘space’ whose frontiers are drawn by the constitutions of the Member States and by the law stemming from the Union institutions. That framework, conceived of as tolerant and pluralist, is being re-phrased as a ‘militant’ one, the underlying idea being that ‘democracy’, along with other ‘common values of the Union’, need to be defended against its ‘enemies’ – particularly, the so-called populist regimes of the Centre-Eastern Europe, with the occasional company of Malta.
Noticeably, the Court of Justice looks eager to continue this campaign despite the electoral defeats suffered by the two main ‘antagonists’ of such common values – Fidesz in Hungary and PiS in Poland. This appears to support the following conclusion: the Kirchberg sees this militant posture as a constitutional acquis, one that is there to stay and to apply to all Member States in the future.
As a result, if the primacy’s telos – backing Union law’s applicative priority – stays the same, its operational modalities do not. Primacy no longer shields Union law from formal abrogation by national laws, but establishes a general rule of preference against the latter in purely material terms, and in so doing it simply swallows formal rules – from limitations to direct effect to ‘conferral’ as such. In this sense, it turns militant to back the militant turn of the once tolerant Europe’s constitutionalism.
Following this view, it may be interesting to highlight what are the features of this ‘militant’ primacy.
2. A Moral-Based Premise …
As the Union struggled to counter the ‘rule of law backsliding’, the Court was given a task it could not refuse: to defend the Union against attacks from within. Such attacks wear the clothes of constitutional identity, as far as Art. 4(2) TEU goes. However, if one cracks the identity’s nutshell, the knot is less intricate than expected. The irenic assumption backing the ever-closer Union narrative is gone and the integration-through-law machinery, alone, is incapable of confronting the profound political conflicts that the decade of the multiple crises has unveiled.
Thus, the Court of Justice has been led to replace the normative, objective foundations of primacy with a value-based, purely moral premise whose subjectivist implications are yet to be uncovered. If accomplished, this shift would lead to the enforcement of Art. 2 values as directly rule-generative. In this context, the Court claims to derive specific binding rules from the values Member States subscribed to as they adhered to the Union. Furthermore, it claims to do so on a case-by-case basis and free of interference from the national levels, be them legislatures or judiciaries.
The formula the Court repeats, goes as follows:
EU law is … based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law. It implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the law of the European Union that implements them will be respected.
This assumption displays a logic circularity, due to the ambiguity of the cause-effect relation between the commonality of values and the mutual trust among the Member States. In the wording of the Court, the contours of this relation remain obscure. In fact, the use of word ‘implies’ points to a prior existence of mutual trust, for common values assume it as a pre-condition; yet ‘justifies’, on the other hand, appears to confirm that values stay as the cause that accounts for, ‘justifies’, indeed, the rise of mutual trust – thus, the commonality exists prior to the latter.
Far from being a mere linguistic issue, or a purely theoretical problem, this ambiguity has fundamental consequences as for the understanding of the concepts concerned – hence, of primacy itself. In fact, the difference between the two cases could hardly be more consistent. If the mutual trust is the effect of the common values, the Court is building up primacy on a rarefied, but still pre-existing, legal yardstick, against which the value commonality can be measured to confirm, or to discard, primacy. Therefore, although utterly moralized, and severely lessened as for its objective reliability, it would still be ‘law’ what draws the primacy’s boundaries. It would not be an external but an internal constraint, one which remains in the hands of the Court of Justice but can (must) be negotiated on a political and institutional level.
This construct would allow the Court to defend Union values, while giving room for other interlocutors – be them national legislatures, or judiciaries, or others – to argue on the normative content of such values. Yet, this is not what the Court seems to favour. Rather, the Kirchberg looks willing to pre-empt any other value-based argument or construct that is not its own. Hence, the reasoning shifts from a value-based to a purely militant one, which simply leaves no space for replies.
Perhaps, then, the best fitting clothes to the Court’s argument can be better presented from the other perspective. The reasoning concerned would read as follows: if common values are the consequence, the effect of mutual trust – and trust is the cause of their commonality – the ex-ante yardstick would not be ‘law’, but a moral-societal postulate. Hence, the Court would be led to consider values as ‘common’, and to deploy them as a support to primacy, so long as, and to the extent that, the Member States committing to such values trust each other.
3. … and its discontents
This ambiguity seems intentional, and it has potential to disrupt the stabilizing effects that primacy as a fully-fledged legal concept has displayed so far. In other terms, the Kirchberg may wish to save both options and to shape the argument according to the circumstances of the case. Should the latter view prevail, the argument concerned would probably go as follows: common values give expression to mutual trust, then a principle gives expression to such values and a norm, in turn, gives expression to that principle. While the first two rings of the chain have been forged already, only one remains left, and it can be argued from a trust-based construct with relative ease.
Such an argument would pave the way for a normative concept of ‘European society’, as favoured by some and criticised by others. Yet, an argument of that sort would eventually jeopardise the very same law the Court aims to defend. In fact, as mutual trust is not a legal concept and is hardly measurable by legal tools, further elaboration seems necessary to grasp the consequences it entails. ‘Trust’, in fact, typically occurs among persons, and groups – not among legal measures nor constitutional orders. There is literature on ‘trust’ in Courts, that is, from the citizenry towards the institutional level; yet, trust ‘among’ institutions eventually turns a matter of inter-personal relationships, as diplomacy highlights. Thus, it is not a formal, impersonal relation of acts what comes to underpin primacy, but an informal relation of peoples and groups, ‘élites’, who happen to rule the respective Member States. Unlike relations whose written, formalised support ensures stability among parties, as well as publicity vis-à-vis third parties, informal relations lack both such characteristics.
Three cases, inter alia, can be figured out as corollaries of this assumption.
Case One. If a State is ruled by an élite that does not enjoy the trust of the other Union élites, a certain norm adopted by that State may be accused of betraying the mutual trust, thus violating the common values, hence the general principles, hence a specific norm of Union law. This latter norm would apply with priority as giving concrete expression to a principle that is, in turn, concrete expression of the common values that are, in turn again, concrete expression of the mutual trust whose boundaries do not encompass that State as regards that case. Eventually, that State would be found in breach of Union law and sanctioned, should the circumstances occur, under Art. 258 TFEU.
Case Two. As opposite to Case One, certain Member States, due to the distinguished status of their élite, would enjoy a special trustworthiness allowing them to a more favourable interpretation of Union law. Thus, the latter would cover a given measure of national law building on a convenient interpretation of conflicting norms or principles. As mutual trust exists, that State would violate no common values, neither principles nor – as a result – any norm of Union law.
Case Three. If a Member State changed its government by means of democratic elections to lose, unfortunately, its trustworthiness, a switch from Cases Two to One would occur abruptly – and vice-versa, should the change be for the opposite. The primacy coordinates would enable Union law to prevent, or to foster, a political change in a Member State. This may occur in several different ways: restricting, or loosening, financial constraints, but also promoting restrictions to fundamental rights and freedoms to dissuade, or silence, dissenting views – yet in the name of constitutional militancy, that is, in alleged defence of the common values.
Could all such measures fall under the Court’s scrutiny? The answer can hardly be in the affirmative. As based on ‘mutual trust’ – i.e., on a reciprocal appreciation of the Member States’ élite in a specific moment – they would be virtually exempt from judicial review. How could a third party – let alone, a judge – evaluate whether a Member is more, or less, trustworthy, and what consequences are to be inferred from it? And how could a judge, whatever its rank, question whether such a trust exists, or exists no longer, from time to time?
4. The Flight of Icarus
As it keeps alive the initial ambiguity to leave yet this latter path open, the Court’s doctrine of a militant primacy echoes the Flight of Icarus. Building up primacy in this guise would clean the ground from legal constraints preventing uniformization, and would likewise entrust the Court with the power to affirm Union law’s absolute priority vis-à-vis national law. Yet, for tempting it may be, such power would not come without costs. ‘Mutual trust’ is not a legal but a sociological concept, and it turns rather slippery when it comes to determine objective legal norms. The Court would be left with no parameter to decide when primacy applies, and which norm of Union law it must concretely support. Such norm would stem from a moral decision that the Court is obviously unfit to take: being a judiciary body, albeit of the highest constitutional rank, it is still submitted to the duty of self-restraint. Thus, the more the constitutional sensitivity of the case, the broader the discretion that political legislators would require, and obtain, from the Court – even if fundamental rights and guarantees were to be unlawfully undermined, or even nullified, as a result of its exercise.
In other words: enforcing a militant primacy may corrode the foundations on which the Court’s very authority rests – law as a rational, predictable tool to tackle social conflicts – and undermine its legitimacy as guardian of the Euro-constitutional legality to an extent that would be unsafe to explore. Faced with decisions of the utmost political sensitivity, the Court could hardly do more than leaving it for the political institutions to deliberate while restraining from a thorough constitutional review. For the worse, the Kirchberg would be required to vest the decision taken at the political level with the best clothes available under Union law. The Court of Justice would look like a top-level advisor, which – for meaningful it may be – is probably not what one expects from a constitutionalising judge. The intensity of such review would be the lowest precisely as the fundamental rights at stake are the most delicate, which would paradigmatically subvert the spirit and rationale of constitutional scrutiny.
Is all this unrealistic? Take RT France – the Court of First Instance held lawful the ban on Russia-related media networks to broadcast in the Union. As they refused to challenge the Union institutions’ narrative, the judges sacrificed freedom of expression – particularly, the public side of that freedom, which points at a ‘right to be informed’ – for the sake of the political objectives those institutions had targeted. That fundamental right was read in light of an entirely one-sided notion of propaganda whose political orientation is manifest, yet legally unchallengeable. Most noticeably, it turns the most unchallengeable precisely when the consequences are the most severe for the citizens and their rights, as well as for the Union as a whole.
But take also Pringle, Gauweiler, ESMA, the rulings on conditionality or other similar cases. The way is already paved. Following a militant-like turn, the Union is assuming eerie traits of a military-like alliance, ready to enter military scenarios as a protagonist – a bitter paradox for an organisation born to relegate the World War II atrocities in the archives of history. Not an ‘alliance’ of constitutions and courts, not even a deal among States, but a sort of élites network across States, which trust each other and cooperate with each other. These élites would have the constitutional tools to pass laws virtually exempt from judicial review, yet possibly aimed at restricting constitutional rights and guarantees as the Union navigates on the edge of war. All this, to be sure, in the name of Europe’s values to be ‘protected’, thus enforced, whatever the cost.
Is primacy fit to contribute to such a plan?
Suggested citation: Giuliano Vosa, Symposium on Militant Constitutionalism Part VIII: A ‘Militant’ Primacy and Its Discontents, Int’l J. Const. L. Blog, June 17, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-viii-a-militant-primacy-and-its-discontents/