Transnational impacts of the Principle of Primacy of European Union Law: Judgment nº 422/20 of the Portuguese Constitutional Court and the Politics of Constitutional Amendment

Abstract

This article adopts a broad understanding of transnational law which includes European Union (EU) Law. It focuses upon the historic decision made by the Portuguese Constitutional Court on the relationship between the 1976 Portuguese Constitution and European Union (EU) law, particulary the question concerning the extent of the application of the principle of primacy. The relationship between these two legal orders is addressed in the interpretation that the Court gives regarding section 4 of Article 8 of the Portuguese Constitution and its consideration of the doctrine of counter-limits put forward by the Italian and German Constitutional Courts. In Judgment nº. 422/20, the Court recognized its lack of competence to assess the validity of an EU legal rule and its “inhibition of full access to EU law”. However, this inhibition is not without limits. Therefore, the Court designed a criterion to guide its intervention when the constitutional identity of the Republic is at stake. Then, the article goes on to discuss the criticisms found in legal scholarship concerning the Court’s reasoning and the ruling’s impacts as well as a constitutional amendment proposal designed to eliminate the constitutional norm that regulates the legal consequences stemming from Portugal’s membership in the EU which originated the decision.

Keywords

• Transnational law; European Union Law; Portuguese Constitution; Counter-limits; Constitutional Amendment