Fyodor Dostoyevsky and the primacy of EU law: overcoming the “eternal husband complex”

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by Alessandra Silveira, Editor

The Arts have always helped the human being to organize the knowledge and to provide a way to understand the meaning of things. The recent decision of the German Constitutional Court[i] on the European Central Bank (ECB) and its Public Sector Purchase Programme (PSPP) has served to create distrust in an atmosphere that is already very sensitive – and it has reminded me an academic episode that shows the role of the Arts in the process of learning. A few years ago, I carefully assessed a paper presented by a Master’s student entitled «Constitutionalism and the principle of primacy of EU law: overcoming the ‘eternal husband complex’». The unexpected title touched on “The Eternal Husband”, Fyodor Dostoyevsky’s literary work. Of course, this needs to be contextualized.

It is said that Russians under czarist rule used to refer in this way, “eternal husband”, to those who never dared to separate from their wives, regardless of the misfortune of the conjugality – from the mere lack of interest to adultery. Adapting the characters to the legal script of integration, the Master’s student explained me his objectives. He wanted to show that the constitutional system of checks and balances which guides the functioning of the EU legal order prevents EU Institutions from betraying the principles that establish and sustain the Member States constitutional paradigm. Therefore, the student argued, there are no credible reasons for resentments and misgivings – and it is urgently required to overcome the “eternal husband complex” of the national constitutionalism.

If we test this argument in light of the concept of European Union as a Union of law, we will conclude that the student may well be right. That legal principle affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the EU basic constitutional charter – the Constitutive Treaties. Therefore, the principle of primacy of EU law does not qualify each and every EU legal act, but only those issued in accordance with the Constitutive Treaties – and the ECJ is solely responsible for assessing this validity. According to Article 19(1) TUE, the ECJ shall ensure that in the interpretation and application of the Treaties the law is observed, i. e., the ECJ is who decides on the scope and the exercise of the EU competences.
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