The Validity and Primacy of EU Law and the ‘Cooperative Relationship’ between National Constitutional Courts and the Court of Justice of the European Union

Abstract

This article places the Gauweiler reference in a broader comparative perspective, in two distinct ways. First, it offers a comparative analysis of the positions of other constitutional courts on the primacy of EU and national constitutional reservations, in order to test the allegation of the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) that its position on ultra vires and identity review is widely shared among constitutional courts in the European Union. The analysis demonstrates that the position of the German court is much more isolated than it wants us, and the Court of Justice to believe. Secondly, the article reflects on the so far very limited participation of constitutional courts in the preliminary reference procedure, and commends the FCC for making a reference in this case, as it is the only procedural channel available for the much wanted dialogue (for want of a better word) between constitutional courts and the Court of Justice.