The ECJ as the European “Supreme Court”: Setting Aside Citizens’ Rights for EU Law Supremacy

von Leonard F.M. Besselink

We recently celebrated the 50th anniversary of one of the landmarks of the jurisdiction of the European Court of Justice, the decision Costa v ENEL. In strong contrast to last year’s celebration of another founding stone of European law, the Van Gend & Loos decision, the Court of Justice seemed not to pay any attention. In reality, however, various members of the Court of Justice and others attached to the Court are engaged in a renewed effort to turn primacy into full supremacy of EU law over national constitutional law and constitutional courts well beyond Costa/ENEL.

In the final plenary session of the FIDE conference in May 2014 in Kopenhagen Vice-president Koen Lenaerts pointed out that in essence the recent Melloni judgment ‘made clear that the Member State constitutional courts can use their national constitutional rights to provide more protection than the Charter does’. President Vassilios Skouris repeated this, significantly opening his remarks by stating:

‘The Court of Justice is not a human rights court; it is the Supreme Court of the European Union’.

Lenaerts’ statement is at first sight deeply confusing, but on reflection the context provided by Skouris’ clarification makes clear that the message they want to convey is that it is entirely up to the Court of Justice to decide on the place of national constitutional rights, even when it concerns autonomous Member State action. This message is corrobated by others, such as former Judge Cristiaan Timmermans (The Magic World of Constitutional Pluralism ...

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