To Decide or Not To Decide: On the Political Theology of Simmenthal, Lyckeskog et al.

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Abstract

The Court’s decisions in van Gend en Loos, Costa, Internationale Handelsgescllschaft and Simmenthal have established a rule of recognition that stipulates validity and effectiveness criteria for what is to be deemed the law of the Union and its lands and have, thus, created an autonomous jurisdiction of a federal nature. The efficacy of claims for supremacy, primacy and direct effect of Union law advanced therein depend on the uniform effectiveness of this law in the Union’s constituent jurisdictions. Only when enforced as supreme law by all Member States’ national courts may Union law be deemed effective. The definition of a court of last instance that the Court provided in Lyckeskog and confirmed in Cartesio falls short of guaranteeing the effectiveness and foreseeability of the individual litigants’ access to the proper standard of judicial protection in each of the Union’s varied constituent jurisdictions. Consequently, the scope and the quality of enforcement of Union law varies from one Member State to another, thereby undermining uniform effectiveness as a crucial element of Union’s law supremacy over national laws. The Court should reconsider its case-law in Lyckeskog and Cartesio so as to make it more attentive to the differences between Member States relating to their high courts’ willingness and capacity to let Union law penetrate their juridical orders enough to make it supremely effective.