Abstract:
This paper analyzes the link between the primacy of EU law and the equality of the Member States. In a press release following the Bundesverfassungsgericht’s PSPP judgment, the European Court of Justice held that the primacy of EU law is rooted in the equality of the Member States. The same argument entered the Court’s case law in the Grand Chamber judgment in Euro Box Promotion. In the past four years, the (alleged) link between primacy and equality has been analysed and criticised in several academic contributions.
This paper enquires whether a particular corollary of the primacy of EU law – the interpretive supremacy of the European Court of Justice as the apex court in a federal legal order – can be normatively justified by the equality of the Member States. For this purpose the paper relies on neo-republican political theory, in particular the work of Philip Pettit. The paper argues that a neo-republican conception of the equality of the Member States may support federal judicial supremacy as a mechanism to eliminate equality-reducing domination among Member States.
However, following Pettit this support is subject to procedural – and possibly substantive – constraints that are necessary to prevent federal judicial authority from becoming a source of domination itself. Moreover, the neo-republican justification of federal judicial supremacy does not necessarily justify the doctrinal characteristics of the primacy of EU law. The paper concludes by formulating two conditions under which the equality of the Member States justify primacy as an EU law doctrine. To this extent, the relationship between primacy and equality remains contingent.