Sul carattere "assoluto" del primato del diritto dell'Unione europea

The present contribution focuses on the so-called "absolute" character of the primacy of European Union Law, namely its ability to take precedence, without exceptions, on Member States' law, including national constitutions. It is argued that precedence over domestic constitutions is not a feature unique to EU law, but a creative development of a well-established principle of international law that EU law shares with the law of other international organizations seeking closer forms of integration among their members. This article further posits that primacy is but a last-resort tool to solve potential conflicts between EU and national law, many of which can be ruled out via the review of legality of EU legislation or the application of the doctrine of pre-emption. It is also observed that, in the case of actual conflicts between EU and national rules, EU law itself places a number of "internal" limits on the prevalence of EU rules, as different lines of ECJ case-law allow for a temporary suspension of the duty to set aside incompatible national rules when certain general interest goals are at stake. Finally, this contribution notes that the ECJ has occasionally resolved to "inter- nalize" the "external" limits that certain domestic courts sought to impose on EU primacy by broadening the scope of the "internal" limits that EU law itself places on that principle. It is thus concluded that EU primacy cannot be regarded as "absolute" and that calls for domestic judicial defiance to that principle are accordingly ill-founded and, at any rate, irreconcilable with the participation in a "community based on the rule of law".