Rejecting the traditional model of constitutional pluralism in the assessment of ultra vires and national identity claims

Following the development of the ultra vires doctrine by the German Federal Constitutional Court, scholars began to have recourse to the theory of constitutional pluralism in an attempt to reconcile the competing claims of ultimate authority over the determination of the validity of EU law made by the Court and that national constitutional court.Footnote ²⁶ According to the doctrine of constitutional pluralism, the EU and the national legal orders are contemplated as operating in a heterarchy without either one being normatively superior to the other and without the existence of an ultimate authority, since each legal system retains the final word within its respective area. As a result, any arising conflicts are settled through mutual accommodation; national constitutional courts are not subordinated to the judicial authority of the Court but rather operate as counterbalancing actors to it.Footnote ²⁷ They have thus the jurisdiction to examine ultra vires and national constitutional identity allegations in their capacity as the apex courts in their national legal order, although they must exercise this competence in a spirt of cooperation with the Court.

The defenders of constitutional pluralism have also attempted to make a distinction between cases of constructive and abusive opposition by national constitutional courts.Footnote ²⁸ They have proposed in this respect a legitimacy test, the satisfaction of which should lead to the conclusion that the invocation of the ultra vires and protection of the national constitutional identity doctrines by the constitutional court concerned has been warranted.Footnote ²⁹ While there are some variations as regards the applicable criteria under this test, their common denominator seems to be that the assessment should take place contextually on the basis of three principal considerations: first, the circumstances of the case and whether these lead to the conclusion that the opposition comes from a truly independent judicial body that exercises its functions in accordance with the rule of law requirements and the values that are common to the member states; second, the quality of the legal reasoning employed and whether it corresponds to the legitimate objectives that a loyal judicial opposition would normally be expected to serve; third, the existence of judicial dialogue and whether the constitutional court takes account in good faith of the interests of the other member states and of their equality before the Treaties and therefore makes restrictive use of its reserved powers.

However, the Court has never endorsed the idea of constitutional pluralism and it has consistently confirmed that national courts do not unilaterally have the authority to declare the invalidity of the acts of the EU institutions.Footnote ³⁰ That is all the more so when the allegation is that the Court itself has exceeded its jurisdiction by issuing a certain preliminary ruling.Footnote ³¹ This case law is emphatically reiterated as regards the judgments of the Polish Constitutional Tribunal. It is stressed in this respect that a national court cannot validly hold, on the basis of its own interpretation of the provisions of EU law, that the Court has adopted a decision which disregards the limits of the jurisdiction conferred on the EU and violates the constitutional identity of a certain member state. That national court is, therefore, not allowed to refuse to enforce that decision and to prohibit the public authorities of the member state concerned from complying with it and from applying the provisions of EU law, as interpreted by the Court.Footnote ³² Hence, it is for the Court alone to determine the extent of the competences conferred on the EU and the compliance with their limits.Footnote ³³ It is further only the Court that may assess the validity of the provisions of secondary EU law in the light of Article 4(2) TEU and take account of the requirements stemming from it when interpreting the obligations of the member states under other provisions of primary law.Footnote ³⁴

The reasoning employed by the Court is not focused on the specific circumstances of the case at issue but seems to exclude completely any ideas of shared judicial competence over the issues under consideration. Indeed, the Court referred very forcefully to the nature and the characteristics of the judicial system established by the Treaties and to the clear delimitation of powers that this entails between itself and the national courts.Footnote ³⁵ It further reiterated that the organisation of this judicial system aims at ensuring the unity and autonomy of the EU legal order and ultimately the particular nature of the law established by the Treaties.Footnote ³⁶ It also emphasised its exclusive jurisdiction to provide the definitive and binding interpretations of the Treaty provisions and to review compliance with the principle of conferral and observance of the obligation to respect the national identities of the member states.Footnote ³⁷ And while the Court itself is under a duty to observe the principle of conferral and to determine that an obligation imposed by EU law does not undermine the national identity of a member state, any claims that it has failed to do so can only be addressed under the institutional mechanisms provided for by the Treaties, to the exclusion of any unilateral actions at national level.Footnote ³⁸

These general statements made by the Court will disappoint the advocates of constitutional pluralism, who would surely prefer a decision focusing closely on the particularities of the composition and operation of the Polish Constitutional Tribunal. But even if one were to overlook for a moment the risks arising from the decentralisation of the review over the observance of the principle of conferral and the protection of the national identity of the member states and to accept that this assessment could indeed be performed in some cases by national constitutional and other supreme courts, despite their variable perceptions and legal backgrounds, it would still be necessary to determine the cases in which this review power has been exercised legitimately. However, the legitimacy test that has been proposed in this respect only works well in very clear-cut cases of patently abusive judicial conduct, such as that of the Polish Constitutional Tribunal. However, in most cases the determination will not be similarly unequivocal. Consider, for example, the decision in Weiss. Some of the proponents of the legitimacy test classify it as an example of constructive – and thus permissible – judicial opposition.Footnote ³⁹ Others believe that it has mixed characteristics that place it on the borderline between legitimate and illegitimate judicial conduct.Footnote ⁴⁰ At the same time, many scholars have criticised the interpretation that the German Federal Constitutional Court adopted in relation to the operation of the principle of proportionality and its failure to honour the outcome of the preliminary reference it had previously made.Footnote ⁴¹

In the same vein, most would concur that there is clear evidence of abuse in the reliance made by the Romanian Constitutional Court on the national constitutional identity in order to prohibit ordinary courts from examining the compatibility with EU law of national provisions that have already been declared constitutional and from giving effect, therefore, to the rule of law case law of the Court, which provides them with such jurisdiction.Footnote ⁴² But there are still some that see this case as simply an excessive reaction of that constitutional court to the manifestly erroneous interpretation of EU law made by a preliminary ruling.Footnote ⁴³ Similarly, the case law of the Hungarian Constitutional Court has been accused of serving the will of the previous government by abusively relying on the protection of the constitutional identity in order to legitimise the refusal to enforce the common asylum policy in this member state.Footnote ⁴⁴ But this constitutional court has been careful not to challenge overtly the relevant case law of the Court. There are also no judicial decisions directly contesting its status as an independent and impartial tribunal previously established by law, despite several reports that it has been packed with loyalists to the former governing majority. That being so, its defenders could always argue that its case law simply raises legitimate constitutional concerns.

Centralising the judicial review of ultra vires and national identity claims seems therefore the only workable solution to prevent legal disparity and to reduce the likelihood of an abusive reliance on these concepts. But the question remains. How are national constitutional and other supreme courts supposed to be convinced not to exercise a reserve power that they have repeatedly proclaimed they possess? And how will it be possible in such an event to have an emergency brake mechanism if the Court makes an incorrect interpretation of EU law that unlawfully extends the limits of the conferred EU competences and violates the national identity of a member state? Ruling on the illegality of the conduct of the Polish Constitutional Tribunal, the Court also describes a model of judicial cooperation based on the preliminary reference procedure, which is very reminiscent of the Taricco II case law. But the fact that it is still reluctant to refer explicitly to that case as an actual example of judicial dialogue that has led to the qualification of a contestable previous preliminary ruling, in the light of the persuasive arguments presented by a national constitutional court, considerably obscures the clarity of this verbally conveyed message.

Proposing the application of the Taricco II model of judicial cooperation with national constitutional courts

After having established that the Polish Constitutional Tribunal was not entitled to consider that its decisions disregarded the national constitutional identity of that member state and to disapply, on that ground, the provisions of EU law, as interpreted by its case law, the Court then explained what the constitutional court should have done under the Treaty framework. It made in this respect a distinction between provisions of primary and secondary EU law. As regards the latter, it stressed that a national constitutional court, which considers that such a provision – as interpreted by the Court – violates the obligation to respect the national identity of the member state concerned, is required to make a preliminary request, in order for the Court to assess its validity in the light of the national identity clause enshrined in the Treaty.Footnote ⁴⁵ As regards primary law, it noted in the first place that its case law takes into account the requirements stemming from Article 4(2) TEU when interpreting the obligations of the member states under other provisions of primary law.Footnote ⁴⁶ But if a national court is still doubtful whether the interpretation by the Court of such a provision fails to comply with the requirements of the national identity clause, it should make a preliminary reference, in order to enable the Court to assess any effect on that interpretation of the need to take into account the national identity of the member state concerned.Footnote ⁴⁷

This is the second time that the Court has admitted, albeit only conceptually and without further substantiation by references to specific relevant examples from its previous case law, that it may itself make a mistake when interpreting the provisions of EU law in the light of the requirements of Article 4(2) TEU.Footnote ⁴⁸ But this is the very first time that it has acknowledged that this mistake may also concern the interpretation of the provisions of primary law, although it does insinuate that this is highly unlikely. Rather surprisingly, the Court did not make a similar reference as regards its interpretation of the principle of conferral. It merely underlined the obligation of the national courts to make a preliminary request if they are uncertain as to the extent of the EU competences in a certain area and consider that an act of EU law exceeds the sphere of these competences.Footnote ⁴⁹ There does not seem any reason not to believe that the pronouncements made in relation to the protection of the national identity are equally valid in relation to the observance of the principle of conferral. That is all the more so since the Court expressly recalled that it is itself obliged to act within the limits of the powers conferred on it by the Treaties.Footnote ⁵⁰ That logically presupposes its obligation to correct any errors that it may have made in previous rulings, as to the interpretation of the boundaries of the conferred EU competences. And yet, the absence of an explicit reference on this point brings back to the stage the jurisdictional conflict that arises in particular as regards the vertical division of competences, where the claim of the Court to rule, as the ultimate arbiter, on this issue, as a matter of EU law, collides with the assertion of national constitutional courts to exercise control over the determination of the competences that can be validly conferred under the relevant constitutional provisions and to ascertain whether the constitutional limits imposed on the transferrable powers have been respected.Footnote ⁵¹

The Court also specified the mechanism through which it may be called upon to reconsider its previous interpretation of the EU law requirements, that is the preliminary reference procedure. Hence, there is no need for a national court to resort to the constitutional instruments since the Treaty already provides an effective institutional mechanism to address any relevant concerns. This statement has two seemingly opposite implications. On the one hand, it can be seen as an invitation to ordinary courts to handle any concerns they may have in a case pending before them through the Treaty framework and not by referring the matter to the constitutional courts.Footnote ⁵² This operates to the detriment of those latter courts and their institutional privileges, since they are effectively bypassed in the resolution of the dispute.Footnote ⁵³ At the same time, though, it can also be seen as a conciliatory gesture towards constitutional courts. Indeed, the latter are reminded of their ability to influence institutionally the case law of the Court by raising legitimate concerns and by pointing out to it potentially overlooked consequences stemming from its previous interpretations of the principle of conferral and Article 4(2) TEU. And although the Court does not explicitly state it, one could expect it to pay due attention to any substantiated and constructive observations coming from a constitutional court.

It could be thus maintained that the Court is actually proposing a model of judicial cooperation similar to the one in Taricco II.Footnote ⁵⁴ The legal and factual background of those proceedings is well known and equally well documented.Footnote ⁵⁵ Suffice it only to recall therefore that in that case the Italian Constitutional Court made a preliminary reference expressing serious reservations about the interpretation of EU law adopted in a previous preliminary ruling, which effectively imposed the obligation to prosecute criminal proceedings even after the expiry of the national period of limitation.Footnote ⁵⁶ However, that interpretation contravened the overriding principle of the Italian constitutional legal order that criminal offences and penalties must be established by precise rules, which cannot be applied retroactively. When the case was brought before it, the Italian Constitutional Court lodged a request for a new preliminary ruling on the matter. In its preliminary reference, it noted that the requirements of legislative clarity and foreseeability had not been examined in that previous preliminary ruling and asked for its clarification. It further implied that it would activate its constitutional counter-limits should the original interpretation of EU law remain the same.Footnote ⁵⁷

The Court decided the case on the basis that the principle of legality of criminal offences and penalties forms part of the constitutional traditions common to the member states.Footnote ⁵⁸ Its strategy, therefore, was to rely on those common traditions, in order to disassociate the claim from Italian constitutional law and to bring it within the scope of EU law. This move was actually facilitated by the Italian Constitutional Court itself, which had also relied in its reference on those common constitutional traditions alongside the invocation of the national conception of the principle of legality as part of the national constitutional identity. In its follow-up judgment, that constitutional court considered that, in the light of the clarification thus provided by the Court, the constitutionality questions referred to it were unfounded.Footnote ⁵⁹ And although in its reasoning it went further than simply accepting unconditionally the effect of that new preliminary ruling, the ultimate outcome of this amicable judicial dialogue was to resolve an evolving crisis that could otherwise have resulted in the exercise by that court of its constitutional counter-limits.

Apparently, the Taricco II model could not have been useful in the case of the Polish Constitutional Tribunal because it presupposes an appetite for cooperation on the basis of legal principles rather than the pursuit of judicial confrontation. But in cases involving truly independent and rule of law-based constitutional courts, it could operate as a pressure relief valve and a means of avoiding unnecessary tensions, as Taricco II itself proves. Consider again the legal proceedings in Weiss and the events that followed the ultra vires ruling of the German Federal Constitutional Court. The European Central Bank reacted by releasing a number of unpublished documents to the Bundesbank, including the minutes of its meetings held before the launching of its quantitative easing policy.Footnote ⁶⁰ Those meetings concerned the prospects of buying sovereign bonds from the secondary markets and the effects that such a programme could entail. The European Central Bank also published the official account of its last monetary policy meeting. In that meeting, its board members debated over the effectiveness of its currently applicable monetary policy instruments and their potential side effects on the area of economic and financial policy.Footnote ⁶¹ This information was then forwarded to the Federal Government, which opined that these documents confirmed that the European Central Bank had assessed the proportionality of the programme in a manner that satisfied the requirements of the constitutional court.Footnote ⁶² A similar position on the proportionality of that programme was also adopted by the Bundestag.Footnote ⁶³

The German Federal Constitutional Court could have sought additional clarification on the matter, by making a second preliminary reference.Footnote ⁶⁴ It is also apparent that this information would have been provided by the European Central Bank, in case of a new preliminary request looking specifically at the proportionality of the contested programme. It should also not escape attention that a year later the same constitutional court dismissed an application for an order of execution relating to its previous ultra vires ruling, noting, inter alia, that the Federal Government and the Bundestag had substantially addressed and appraised the proportionality assessment of the programme, conducted and substantiated by the European Central Bank after its judgment.Footnote ⁶⁵ A new preliminary reference made by it could also have explained in advance to the actors involved what would actually be expected of them, in order for the proportionality examination of the programme to be considered as having been properly conducted.

By reminding national constitutional and other supreme courts of the obligation to make a new preliminary request if they are uncertain about the correctness of the interpretation of the law that it has made in the past, the Court explained in essence that such courts’ resort to the preliminary reference mechanism is the only legitimate way of expressing their opposition to its case law. Thus, instead of the model of constitutional pluralism, a paradigm of judicial cooperation is proposed, under which a continuous institutional dialogue is established with apex courts, offering the latter the opportunity to express their constitutional reservations and imposing on the Court the obligation to translate them in a way that allows their assessment under the Treaty framework. In this respect, one need only look at the protection of constitutional identity issue raised by the Polish Constitutional Tribunal. The reasoning employed by the Court clearly suggests that had this point been raised in the context of a preliminary reference procedure, it would have been examined under the concept of national identity under Article 4(2) TEU.

That being said, it is unfortunate that the Court has not considered it necessary to make an explicit reference in its judgment to the Taricco II precedent, in order to provide concrete evidence of its commitment to correct any interpretative errors through constructive judicial dialogue. In fact, it is very disappointing that, while verbally promoting the need for judicial cooperation, the Court leaves out of the picture the most prominent practical example of a preliminary reference leading to the correction of a mistake on the basis of the substantiated line of reasoning of a constitutional court. But if it really wants to convince constitutional courts that it is truly in a mood to listen to any reasonable reservations regarding its case law, perhaps it is time for the Court to start providing, in more explicit terms, concrete evidence of such a cooperative attitude.

The centralisation of the judicial review and the protection of legal primacy

Turning then to the issue of legal primacy, this was certainly not the first time that the Polish Constitutional Tribunal had proclaimed the precedence of the national Constitution.Footnote ⁶⁶ But this time this pronouncement was not merely conceptual and it was further accompanied by certain unprecedented statements. More specifically, the Polish Constitutional Tribunal ruled that in the hierarchy of legal sources the Treaties occupy a position that is lower than that of the Constitution and that, just like any ratified international agreement, they must be consistent with its provisions.Footnote ⁶⁷ Starting from this premise, it considered unconstitutional the Treaty provisions relied upon by the Court for the development of its rule of law case law, insofar as their interpretation by the latter would deprive Poland of its exclusive competence to adjudicate on the organisational structure of national courts.

Therefore, the infringement proceedings provided the Court with the opportunity to rule once more on the scope of the primacy principle and to reiterate its relationship with the obligation to respect the national identity of the member states. Of course, it can be validly argued that in the case at hand there was not any real clash with the constitutional values and that it was the interpretation of the Polish Constitution adopted by the Polish Constitutional Tribunal that had violated the national constitutional identity, more specifically the right to court and the principle of effective judicial protection, as protected under the relevant constitutional provisions.Footnote ⁶⁸ At several points in the judgment, it is noted that it is indeed this interpretation that lies at the heart of the infringement proceedings.Footnote ⁶⁹ It is also emphasised that respect for the principles of the rule of law, effective judicial protection and the independence of the judiciary cannot entail requirements capable of affecting the national identity of a member state.Footnote ⁷⁰ That being said, the judgment confirms unequivocally that the concept of national identity is not meant to confine the application of the primacy principle and to allow member states to derogate unilaterally from their obligations under EU law.

Thus, it becomes clear that the centralisation of the judicial review of identity claims is also crucial for the practical operation of the primacy principle. When national constitutional and other apex courts raise issues regarding the protection of the identity of a certain member state, they usually refer to this concept as a matter of constitutional law. They may also rely sometimes on the national identity clause of Article 4(2) TEU, but they themselves seem to be uncertain whether the review of national identity and constitutional identity coincide conceptually. In any case though, the examination of identity claims on the basis of constitutional norms allows national courts to operate outside the Treaty context and to invoke unilaterally constitutional objections in order to evade the obligations imposed by the primacy principle.Footnote ⁷¹ A similar line of reasoning was also adopted by the Polish Constitutional Tribunal, which considered that the national identity clause defines the limits of the application of the primacy principle and of the jurisdiction of the Court, in order to respect the constitutional identity of the member states.Footnote ⁷² It relied then unilaterally on the alleged breach of the Polish constitutional identity, as interpreted of course by it, in order to declare ultra vires the entire rule of law case law of the Court.

On the contrary, the Court refers to the notion of national identity enshrined in Article 4(2) TEU. Thus, reliance on the constitutional identity of a member state, as protected under national constitutional law, cannot introduce exceptions to the operation of primacy. Suffice it only to look in this respect at the unsuccessful attempt made by Poland to invoke its constitutional identity and the relevant case law of its constitutional tribunal, in order to seek the revocation of the interim measures imposed against it pertaining to its new disciplinary regime for judges.Footnote ⁷³ And it is equally telling that the Court did not even consider it necessary to address explicitly a similar claim made by Hungary, in order to evade its obligations under the common asylum system, based on its inalienable right to determine its territorial integrity as part of its constitutional identity.Footnote ⁷⁴

But the question that immediately arises then is whether exceptions to primacy can rather be introduced as a matter of EU law by relying on the national identity clause of Article 4(2) TEU. Following the development of its rule of law case law, the Court has been repeatedly called upon to address arguments alleging that the extension of the reach of EU law over matters of organisation of justice infringes the national identities of the member states. That has obliged it to provide clarification on two closely interrelated issues: first, what role should be accorded to the member states as regards the determination of their respective national identities and what should the involvement of national courts be in this matter? Second, to what extent can the duty to respect the national identities of the member states affect the measure of the obligations imposed by the primacy principle? Ruling on the infringement proceedings instituted for the defiant judgments of the Polish Constitutional Tribunal, the Court took the opportunity to reiterate its relevant case law and to further elaborate on its previous pronouncements on these issues.

As regards the first issue, most scholars agreed on the need to leave some leeway to the national courts and the other constitutional actors to define what belongs to the identity of a member state, subject though to the control and the final verification of the Court under the preliminary reference procedure.Footnote ⁷⁵ It would, therefore, ultimately be for the Court to establish both the plausibility of the identity claim and the practical effect that this could potentially have. That is indeed very close to the approach that the Court has eventually adopted on this matter. It has now been clarified that, while it is for the member states to define their respective national identities, Article 4(2) TEU cannot be interpreted as granting them the power to derogate unilaterally from the provisions of EU law, by relying on that national identity.Footnote ⁷⁶ That clause does not further authorise national constitutional and other supreme courts to unilaterally disapply a rule of EU law on the basis that this undermines the national identity of a member state, as defined by them. On the contrary, these courts are obliged to make a preliminary reference on the matter in order for the Court to rule authoritatively on this question.Footnote ⁷⁷ This case law shows some deference to the relevant national actors, but the ultimate authority over the interpretation and application of the national identity clause must be retained in all circumstances by the Court.

The Court also explained the reasons why it is indeed necessary for it to have the final word on the invocation of the national identity clause of Article 4(2) TEU. That is because the autonomy that EU law enjoys in relation to the laws of the member states requires that the interpretation of that clause take account of the structure and objectives of the EU.Footnote ⁷⁸ That is a very telling statement, which already reveals that reliance on national identity cannot have as an automatic effect the limitation of the primacy principle. As the Court has emphasised in recent years, the identity clause does not operate in a legal vacuum but must be read systematically, taking into account also provisions of the same rank.Footnote ⁷⁹ This systematic reading has led to the imposition on member states of negative obligations and obligations of result, that is to the recognition of their responsibility not to violate the EU law requirements in the exercise of any discretion that they may possess in the implementation of the commitments imposed upon them by those other provisions.Footnote ⁸⁰

As a consequence, the existence of separate national identities and the obligation of the EU to respect them allows member states to choose the appropriate means in order to ensure compliance with those obligations, in accordance with their respective constitutional model. It may not, though, have the effect of authorising derogations from the observance of the common rules.Footnote ⁸¹ Reliance on Article 4(2) TEU allows for some diversity on the basis of relevant national choices but does not introduce exceptions to the primacy of EU law.Footnote ⁸² And since the interpretation of both the identity clause and the other provisions of the same rank with it always comes under the exclusive jurisdiction of the Court, the latter retains complete control over any claim alleging a violation of the national identity, so long as this is kept within the framework of the Treaty.

That this is indeed the case is confirmed by the reliance made by the judgment on the identity of the Union.Footnote ⁸³ Ever since its introduction, it had been argued that this establishes a common constitutional core that cannot be surpassed by invoking the obligation to respect the individual national identities of the member states.Footnote ⁸⁴ But what is actually covered by this common identity remains a contested issue. Responding to the argument raised by Poland that its case law violates the national constitutional identity of this member state, the Court referred to the Article 2 TEU values as part of the identity of the Union and noted that it is not possible to escape the obligations imposed by these common values by considering that the requirements arising therefrom can infringe the national identity.Footnote ⁸⁵ It concluded then that the principle of sincere cooperation and the obligation to respect the binding effect of its interim measures also constitute part of this common identity.Footnote ⁸⁶ This seems to open the door to bring into the latter requirements stemming from the effectiveness and autonomy principles, thus excluding recourse to the concept of national identity if this would amount to their violation.Footnote ⁸⁷

Another illustrative example of how this case law works in practice can be given by looking at the infringement proceedings instituted against Poland and the Czech Republic for national legislation denying the right to be a member of a political party to European citizens, who resided in those member states without having their nationality.Footnote ⁸⁸ Both Poland and the Czech Republic argued that the legislation at issue regulated the organisation of national political life, that is a matter that constitutes part of their national identity protected under the Treaty. The Court noted that the organisation of national political life, to which political parties contribute, is indeed part of national identity.Footnote ⁸⁹ It immediately recalled though that Article 4(2) TEU should be read in the light of other Treaty provisions of the same rank, in particular those that enshrine the principle of democracy and the principle of equal treatment.Footnote ⁹⁰ It concluded that allowing the persons concerned to become members of a political party in their member state of residence, so as to implement those principles in full, cannot be regarded as undermining the national identity of that member state.Footnote ⁹¹ Thus, just like in the case of the Polish Constitutional Tribunal, the invocation of Article 4(2) TEU could not exempt the member states concerned from the obligations arising from the primacy of the applicable EU provisions.

The conclusion that can be reached therefore is that the ultimate authority claimed by the Court to rule as the final arbiter over all identity claims and its systematic reading of Article 4(2) TEU effectively exclude the possibility that its interpretations of the Treaty provisions could ever be considered as violating the national identity of a member state. But even as regards secondary EU law, the implication is that it will need something really extraordinary to allow a member state to depart from the application of such a rule.Footnote ⁹² And even in such a case, this will be authorised by the provisions of primary EU law, as interpreted by the Court, and cannot be considered therefore as a limitation of the primacy principle.