Commentary on Judgement no. 422/2020 by the Plenary of the Constitutional Court (Rapporteur: Councillor José António Teles Pereira)

Abstract

In Judgement No. 422/2020, the Constitutional Court examined, as a preliminary matter, the question of whether and to what extent it can rule on the incompatibility between a norm of EU law and the Constitution. The Court identified in the first normative segment of Article 8(4) of the Constitution a generic acceptance of primacy and, in its second segment, a counter-limit to the prevailing effect resulting from it. In exercising its procedural Kompetenz-Kompetenz, the Court established a constitutional criterion to determine the autonomous sphere of national control inherent in the final segment of Article 8(4). According to this criterion, the refusal to apply a provision of EU law presupposes its incompatibility with a fundamental principle of the democratic state based on the rule of law, which does not there, in EU law, enjoy materially equivalent parametric value to what is recognised by the Constitution.