The story of lost chances but not lost hope: Towards a sequential model of adjudication on Art 4(2) TEU claims in EU law

This presentation will outline an alternative mechanism for adjudicating Art 4(2) TEU and ultra vires claims in EU law. It will offer what I call a sequential (as opposed to hierarchical) model of adjudication thereof. I will argue that the recent national and CJEU judgments have ultimately failed to follow the proposed approach, but still show some potential for its future application. My idea is to make use of Art. 267 TFEU in a way that would allow MS courts to offer a clear interpretation of what and why they consider to be part of a particular national constitutional identity, and an explanation as to why such identity is irreconcilable with the EU norm in question. This would shift the centre of gravity away from the evergreen dispute over “the last word” to “the first word” in this judicial dialogue. Although not a panacea for all potential conflicts, I argue that the proposed sequence of adjudication will help prevent or mitigate many disagreements over these contested issues.