Is the primacy of EU law based on the equality of the member states? A comment on the CJEU's press release following the PSPP judgment

Abstract

In response to the BVerfG's PSPP judgment, the CJEU issued an unprecedented press release in which it claimed that national courts must give full effect to EU law because this is the only way to ensure the equality of the Member States. While the press release does not contain the word “primacy,” the obligation to give full effect to EU law clearly implies primacy of EU law. This article provides a constructive and critical analysis of the press release's “equality argument.” First, it demonstrates how the CJEU most likely borrowed it from a recent article by Federico Fabbrini, and how the argument is virtually identical to Kelsen's defense of international law primacy. Second, it criticizes the equality argument for being inconsistent with the CJEU's case law, and shows how it is either wrong or tautological. After suggesting three possible reasons why the press release nonetheless justifies primacy in this way, the article concludes by showing how the CJEU's case law is better conceptualized from a Hamiltonian perspective in which full effect is a goal rather than a means.