Legal Embarrassment after PSPP and K 3/21 : The Bogus Distinction between Primacy­ and Supremacy and the Need for an Ethics of EU Law Supremacy

A common response to the Polish Constitutional Tribunal's decision K3/21, which mirrors similar reactions to the PSPP judgment, goes something like this. There is an important distinction between ‘primacy’ and ‘supremacy’ of EU law. Talking about supremacy – the ‘real’ Grundnorm and the ‘real’ supreme arbiter of constitutionality – is misguided because the Court of Justice actually never speaks of the ‘supremacy’ of EU law. The more accurate term, endorsed also by the Court of Justice, is ‘primacy’. Primacy of EU law is perfectly compatible with the ultimate supremacy of the national constitutional order.As a matter of conceptual necessity, however, hierarchies between legal orders cannot exist. ‘Supremacy’ as allegedly applying between legal orders is a nonsensical concept, and can therefore only refer to the conflict rule that others may call ‘primacy’. However, that offers no practical relief in situations such as PSPP and K3/21, because there is nothing to mitigate the operation of this conflict rule and the constitutional conflicts it generates. The embarrassing conclusion is that any sincere attempt to challenge decisions such as K3/21 on the national constitutionalist’s own terms is doomed to fail. But declaring the supremacy of EU law as a matter of legal imperative has proved futile as well. The better alternative, in my view, is developing an ethics of EU law supremacy, which not only relieves our own embarrassment, but also challenges the national constitutionalist viewpoint to avoid their own