Belittling the Primacy of EU Law in Taricco II

The Taricco II judgement (M.A.S. and M.B. case) handed down by the CJEU on 5 December 2017 is a telling and worrying example of a weakly reasoned court decision and the high price at which such weakness comes. It is a judgement that disregards legally problematic questions, seemingly subordinating argumentative consistency to the constraints of legal policy in a climate increasingly critical towards EU law and institutions. The (potential) collateral damage of this approach is considerable: in particular the principle of EU law primacy and the jurisprudence on the relationship between domestic and European standards of human rights protection are challenged. In order to avoid one perceived “evil” the Court might have opened a Pandora’s box for another: While the Italian Constitutional Court’s threat to apply its controlimiti jurisprudence and the related constitutional identity narrative has been countered, the Court paves the way towards a general relativisation of the primacy of EU law vis-à-vis domestic constitutional law.

The facts of the case have already been stated in the previous entry by Marco Bassini and Oreste Pollicino. I will focus on the implications of this judgement for the principle of primacy in the context of human rights protection and beyond.

Giving up Melloni and Åkerberg Fransson?

The attenuation of the principle of EU law primacy is closely linked to the challenge that Taricco II represents for the relationship between domestic and European human rights standards. I accordingly will first highlight some of the implications for the legal framework of human rights protection. This framework so far has been constructed around article 53 of the Charter and, based on the Melloni and Åkerberg Fransson jurisprudence, has taken the principle of primacy into account as a restricting element ...

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