European Jurisprudence
Constitutional Pluralism Is Not Dead: An Analysis of
Interactions Between Constitutional Courts of Member States
and the European Court of Justice
By Ana Bobić*
Abstract
The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed
immense success in its attempt to explain the relationship between courts of Member States
performing constitutional review and the Court of Justice. Despite its success, the theory has
often been criticized for its lack of normative prescriptions and legal certainty in resolving
the question of the final arbiter in the EU. It is the aim of this Article to address and move
beyond these criticisms by introducing and exploring the auto-correct function necessary for
the proper and balanced functioning of the pluralist system.
The auto-correct has the function of preventing an outbreak of conflict between the
constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the
part of all the actors involved of the benefits of a pluralist setting results in conflict
management and control. The auto-correct function operates as follows: in the EU as we
know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice
and national constitutional jurisdictions are able, through their respective procedural
avenues, to control the extent of the conflict. There are also two legal imperatives driving
this dynamic in two opposite directions—the principle of primacy of Union law on the one
hand, and the obligation to respect the national identity of Member States on the other.
As analyzing judicial behaviour shows, the application of self-restraint and mutual
accommodation avoids a clash between parallel sovereignty claims on EU and national
levels. In particular, national and EU law interaction demonstrates the existence of in-built
conditions for the auto-correct function’s application, such as the principle of EU-friendly
interpretation in national constitutional law, or the national identity clause in primary EU
law. The auto-correct function manifests itself and brings about a balance between the
different constitutional orders only through the interaction of parallel claims to sovereignty.
* M. Jur. (Oxon), DPhil candidate at the Faculty of Law and Tutor in Law (Keble College), University of Oxford. The
author would like to thank Angus Johnston, Monica Claes, Petra Weingerl, Julian Nowag, Tamara Ćapeta, Stephen
Weatherill, Josephine van Zeben and the anonymous reviewer on their helpful comments and stimulating
discussions on earlier versions of this paper.
1396 German Law Journal Vol. 18 No. 06
A. Introduction
The theory of constitutional pluralism advanced by MacCormick1
and Walker2
was
immensely successful in its attempt to explain the relationship between supreme
jurisdictions performing constitutional review in the Member States and the European Court
of Justice. In particular, this theory rests on the premise that the question of who is the final
arbiter among these courts is futile, as they co-exist in a multi-level setting.3
The theory is
based largely on the idea that the lines between national andinternational law are becoming
increasingly blurred,4
specifically in the European Union context where the doctrines of
direct effect and the primacy of EU law have significantly changed the position of
constitutional law in Member States.
Pluralism is certainly not without its weaknesses, and criticism has mainly been directed
towards its descriptiveness and the lack of normative prescriptions,5
as well as the lack of
democratic legitimacy in the EU as a pluralist setting.6
More recently, the theory of
constitutional pluralism has received harsh criticism in light of the interpretations put
forward by the Bundesverfassungsgericht, which retained for itself the ultimate power to
interpret the core of the German Basic Law, even at the cost of a serious clash with the Court
of Justice and its jurisprudence of primacy.7
Most notably, the criticism—or more precisely
1 See Neil MacCormick, The Maastricht Urteil: Sovereignty Now, 1 EUR.L.J. 259 (1995); NEIL MACCORMICK, QUESTIONING
SOVEREIGNTY: LAW, STATE AND NATION IN THE EUROPEAN COMMONWEALTH (1999).
2 See Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317 (2002) (hereinafter Walker 2002); Neil
Walker, Late Sovereignty in the European Union, in SOVEREIGNTY IN TRANSITION 3 (Neil Walker ed., 2003) (hereinafter
Walker 2003).
3 Since then, seminal works have been published. See Miguel Maduro, Contrapunctual Law: Europe’s Constitutional
Pluralism in Action, in SOVEREIGNTY IN TRANSITION 502 (Neil Walker ed., 2003); Neil Walker, Postnational
Constitutionalism and the Problem of Translation, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE (Joseph Weiler &
Marlene Wind eds., 2003); Nick Barber, Legal Pluralism and the European Union, 12 EUR. L.J. 306 (2006); Miguel
Maduro, Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism, 1 EUR. J. LEGAL
STUDIES 1 (2007); Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between
Constitutionalism in and Beyond the State, in RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL
GOVERNANCE 258 (Jeffrey Dunoff & Joel Trachtman eds., 2009); Nico Krisch, BEYOND CONSTITUTIONALISM: THE PLURALIST
STRUCTURE OF POSTNATIONAL LAW (2010); CONSTITUTIONAL PLURALISM IN THE EUROPEAN UNION AND BEYOND (Matej Avbelj &
Jan Komárek eds., 2012).
4 Jo Shaw, Process and Constitutional Discourse in the European Union, 27 J. LAW & SOC. 4, at 8 (2000).
5 Krisch, supra note 3, at 70.
6 Fritz Scharpf, Legitimacy in the Multilevel European Polity, 1 EUR. POL. SCI. REV. 173, at 175 (2009). For a defense of
the democratic characteristics of pluralism, see Jonathan Kuyper, The Democratic Potential of Systemic Pluralism,
3 GLOBAL CONSTITUTIONALISM 170 (2014).
7 Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], Jan. 14, 2014, 2 BVR 2728/13, para. 29
[hereinafter Gauweiler I].
2017 Constitutional Pluralism is Not Dead 1397
the dismissal—of constitutional pluralism as a plausible theory for explaining the EU
constitutional setting and its interinstitutional relations has been proposed by Kelemen,8
Sarmiento,9
and Fabbrini.10
This Article offers a theoretical and practical response to the
critique, and adopts the perspective of courts that enforce their respective constitutional
norms that express the normative claim to sovereignty.
In that vein, Section B will present the critique and offer a theoretical reply. It will advance
a reading of the Treaty that supports a pluralist understanding of the question of the final
arbiter and the principle of primacy. The argument put forward by this Article is that, first,
leaving the question of the final arbiter open contributes to a more open coordination
between the courts performing constitutional review without submerging into conflict.
Second, primacy of EU law should not be read as an all-purpose subordination of national
law to EU law. It should be read in combination with the EU’s obligation to respect the
national identities of Member States, leading to a more balanced application of the principle
of primacy.
Furthermore, the practical part, Section C, will analyze judgments, institutional documents
and reports, as well as public statements and writings of current and former members of
both the Court of Justice and national courts with a constitutional mandate across the EU.
The analysis will show that a recurring use of various expressions, which I will refer to as
keywords, points to the existence of a shared understanding of the division of obligations
among the participants of the European judicial space. Section D will present some
concluding remarks on the future of the theory of constitutional pluralism and its usefulness,
particularly in relation to the most recent decision of the Bundesverfassungsgericht
concerning the Outright Monetary Transactions (OMT) mechanism.
B. The Critique
To proceed with analyzing the most recent critique of constitutional pluralism, I will first lay
out the four theoretical premises of constitutional pluralism that I consider essential to
informing the discussion in this work. These premises help to clarify the inter-institutional
relations between national constitutional adjudicators and the Court of Justice.
8 See Daniel Kelemen, On the Unsustainability of Constitutional Pluralism: European Supremacy and the Survival of
the Eurozone, 23 MAASTRICHT J. EUR. & COMP. L. 136 (2016).
9 See Daniel Sarmiento, The OMT Case and the Demise of the Pluralist Movement, DESPITE OUR DIFFERENCES (Sept. 21,
2015), https://despiteourdifferencesblog.wordpress.com/2015/09/21/the-omt-case-and-the-demise-of-the-
pluralist-movement/.
10 See Federico Fabbrini, After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the
Member States, 16 GERMAN L.J. 1003 (2015).
1398 German Law Journal Vol. 18 No. 06
(1) The classic theory of constitutionalism can no longer accommodate and explain the legal
nature of European integration and the EU’s legal system11
nor its relationship to national
law.12
This inability results from the problem of using and translating State-centered
constitutionalist terms with the aim of explaining and legitimizing non-State settings, such
as the EU.13
In other words, we should not be judging the EU and its institutions against the
“State” vocabulary and standards; rather, we should regard it as having its own idiosyncratic
nature.14
(2) A pluralist vision of the EU’s legal system should be endorsed where the decisive
determinants for defining and differentiating between diverse legal systems are no longer
based on spatial boundaries,15
but on an idea that the EU and national legal orders are
inherently overlapping within the same geographical space.16
It goes further, however, than
this classical understanding of legal pluralism by advancing an explanation according to
11 Shaw, supra note 4, at 21.
12 The Polish Trybunał Konstytucyjny recognized this important moment in its decision on the Accession Treaty:
“The concept and model of European law created a new situation, wherein, within each Member State,
autonomous legal orders co-exist and are simultaneously operative. Their interaction may not be completely
described by the traditional concepts of monism and dualism regarding the relationship between domestic law and
international law.” Trybunał Konstytucyjny 11.05.2005 [Polish Constitutional Tribunal decision of May 11, 2005] K
18/04 at para. 12 [hereinafter Accession Treaty].
13 Because “state constitutionalism” is the default determinant, and because the destination language of “non-state
constitutionalism” is under-developed, there is a danger that both scholars and actors in the integration process
presume an isomorphism between the EU and their respective national polities. See Walker, supra note 3, at 40;
Shaw, supra note 4, at 20; Renaud Dehousse, Beyond Representative Democracy: Constitutionalism in a Polycentric
Polity, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE (Joseph Weiler & Marlene Wind eds., 2003); Krisch, supra
note 3, at 35. For political science literature, see MULTI-LEVEL GOVERNANCE (Ian Bache & Matthew Flinders eds., 2004),
at 78.
14 The same was underlined by Siniša Rodin, Judge at the Court of Justice, in a talk at the Bingham Centre in London,
on November 2, 2015. He put forward the argument that the criticism addressed to the Court of Justice should be
confined to those internal characteristics of the Court—not in comparison to a preferred, ideal type of a court, or
even in comparison to a certain national constitutional or supreme court, but keeping in mind the specific context
in which it operates as an institution of the EU. See also Ústavní soud České republiky 03.11.2009 (ÚS) [Decision of
the Constitutional Court of Nov. 3, 2009], sp.zn. ÚS 29/09 paras. 137-140 (Czech) [hereinafter Lisbon Treaty II].
15 See Shaw, supra note 4, at 7. Ingolf Pernice, Introduction: Achievements and Challenges: The European Union, Its
Constitutional Courts and the Perspectives After Lisbon, in EUROPE’S CONSTITUTIONAL CHALLENGES IN THE LIGHT OF THE
RECENT CASE LAW OF NATIONAL CONSTITUTIONAL COURTS: LISBON AND BEYOND, 9, 10 (José María Beneyto & Ingolf Pernice
eds., 2011). For political science literature, see Liesbet Hooghe & Gary Marks, Unraveling the Central State, but
How?Types of Multi-Level Governance, 97 AMER.POL.SCI.REV. 233, 237 (2003); Nupur Chowdhury & Ramses Wessel,
Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?, 18 EUR. L.J. 335, 340
(2012).
16 See WILLIAM TWINING, GLOBALIZATION AND LEGAL THEORY 83 (2000). See also MAARTJE DE VISSER, CONSTITUTIONAL REVIEW
IN EUROPE: A COMPARATIVE ANALYSIS 3 (2014); Joseph Weiler, Journey to an Unknown Destination: A Retrospective and
Prospective of the European Court of Justice in the Arena of Political Integration, 31 J. COMMON MKT. STUD. 417, 422
(1993).
2017 Constitutional Pluralism is Not Dead 1399
which the EU represents a co-existence of different legal orders in the same geographical
space, all of which claim sovereignty.17
(3) Given the above, the interactions between the national and the EU legal system should
not be read in hierarchical,18
but in heterarchical terms.19
Such an understanding waters
down the importance of the competition for the ultimate judicial authority in the EU,20
because their interactions are taking place in a setting of mutual respect and are based on
the principle of sincere cooperation.21
The constitutional jurisdictions are ultimate
interpreters and arbiters in their respective areas of competence.
(4) In order to resolve the clashes in interpretation evincing an unclear division of
competences between the EU and the national level, such a division of competences should
be addressed through functional, rather than territorial, criteria.22
Because of these
developments, the post-national constellation seems most appropriate to explain the legal
nature of European integration, as it places an emphasis on the de-territorialization of law23
that took place with the transfer of certain competences to the EU level, thus ending the
territorial exclusivity of Member States. Analogously, the possible clashes between national
law and the European jurisdiction should be resolved by recourse to the principle of sincere
cooperation based on mutual respect.
17 Matej Avbelj, The EU and the Many Faces of Legal Pluralism, 2 CROATIAN Y.B. EUR. L. & POL'Y 377, 381 (2006). For a
further argument on the need for abandoning monism and dualism in favor of pluralism, see Armin von Bodgandy,
Pluralism, Direct Effect, and the Ultimate Say: On the Relationship Between International and Domestic
Constitutional Law, 6 INT. J. CONST. L. 397, 399–400 (2008).
18 Such an understanding does not disregard the existence of hierarchy in national constitutional settings, but
emphasizes heterarchy as a framework for the interaction of a plurality of legal orders co-existing and claiming
sovereignty in the same geographical space. Heterarchy can be defined as “the relation of elements to one another
when they are unranked or when they possess the potential for being ranked in a number of different ways.” Carole
Crumley, Heterarchy and the Analysis of Complex Societies, 6 ARCHAEOLOGICAL PAPERS AM. ANTHROPOLOGICAL ASS’N 1, 3
(1995). Understood in this sense, heterarchy seems to adequately capture the relations between different units
claiming authority, without predetermining the relationships within the plurality of unities. Nevertheless, the aim
of the presented legal reasoning is to overcome “the almost unconscious assumption of hierarchy-as-order” that I
find to be an inherent fallacy of the constitutionalist theory. Id.
19 Krisch, supra note 3, at 69.
20 Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1
GLOBAL CONSTITUTIONALISM 53, 55 (2012).
21 Different versions of the same principle are also in place at the national level. For an analysis of the principle of
friendliness towards European integration in constitutional jurisprudence of Member States, see Section 3
discussed in the text below. See infra, note 114; De Visser, supra note 16, at 3 n.14.
22 Walker 2002, supra note 2, at 346.
23 Hand Lindahl, A-Legality: Postnationalism and the Question of Legal Boundaries, 73 MOD. L. REV. 30, 30 (2010).
1400 German Law Journal Vol. 18 No. 06
With these premises in mind, I now turn to the literature that has recently criticized the
contribution and viability of constitutional pluralism. The more general critique of
constitutional pluralism literature has been directed towards its predominantly descriptive
nature. The critique has explained how heterarchical inter-institutional relations work in the
EU’s multilevel setting,24
mentioning only in passing the possibility of a constitutional conflict
and the means of its resolution.25
It seems, however, that the critique is becoming as
fashionable as the theory itself was at one time.26
The criticism received only seems
reasonable in the aftermath of the response issued by the Court of Justice to the preliminary
reference submitted by the Bundesverfassungsgericht. The critics view the reference for a
preliminary ruling submitted by the German Court as the “demise of the pluralist
movement,”27
while others have categorically emphasized that a constitutional conflict is
inevitable because the Court of Justice did not agree with the Bundesverfassungsgericht’s
reading of the OMT mechanism’s possible conformity with primary EU law.28
While we now
know that the two courts prevented the constitutional conflict from taking place, it is
nevertheless necessary to pay further attention to the criticism directed at the theory of
constitutional pluralism.
For purposes of clarity, this Section will briefly outline the well-known preliminary reference
to emphasize the clashes in interpretation between the Bundesverfassungsgericht and the
Court of Justice. The German Court received a challenge concerning the participation of the
German Bundesbank in the implementation of the OMT mechanism. This occurred after the
Bundesbank published an opinion about the incompatibility of the OMT mechanism with the
limits of the monetary mandate of the European Central Bank (ECB), which would therefore
exceed the competences of the Union in monetary policy. In resolving the case, the German
Court decided to submit its first preliminary reference to the Court of Justice, seeking the
interpretation of the provisions of the Treaty on the content and the limits of the ECB
mandate.
The Bundesverfassungsgericht, however, made its own assessment of the OMT mechanism
in the order for reference, finding that it was probably not only an ultra vires act, and
therefore outside the bounds of ECB competence, but also that it encroached upon the
inviolable core of the German Basic Act—its constitutional identity. It concluded: “While the
Senate is thus inclined to regard the OMT Decision as an ultra vires act, it also considers it
24 See Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution Making
Revisited?, 36 COMMON MKT. L. REV. 703 (1999).
25 MacCormick, supra note 1, at 102.
26 Barber, supra note 3, at 306.
27 See generally Sarmiento, supra note 9.
28 Fabbrini, supra note 10, at 1012.
2017 Constitutional Pluralism is Not Dead 1401
possible that if the OMT Decision were interpreted restrictively in the light of the Treaties,
conformity with primary law could be achieved.”29
It is necessary to address the apparently aggressive language employed by the
Bundesverfassungsgericht. In particular, the German Court has been heavily criticized30
for
stating in the reference its own opinion on the legality of the OMT mechanism, and it has
also been accused of prejudicing its own subsequent ruling. It should be noted, however,
that the wording of the Bundesverfassungsgericht is in line with the ECJ’s recommendations
for national courts and tribunals in relation to the preliminary reference procedure.31
The
procedure states that such a practice is welcomed by the Court of Justice, as it may prove
useful in reaching the final decision on interpreting a particular provision of EU law. While
the vocabulary of the Bundesverfassungsgericht is not common in the preliminary
references that we encounter on a daily basis, it is my argument that it is essential that cases
with this level of constitutional importance include the opinion of the referring court as well.
This becomes even more important when references come from national constitutional
courts.
In its judgment, the Court of Justice, as has been thoroughly explored elsewhere,32
relied on
its judgment in Pringle,33
and stated that the OMT mechanism is not an act of economic
policy, regardless of its effect on the stability of the euro zone area.34
Many who have read
the wording of the German Order for reference and the Court’s disagreeing reply35
have
concluded that the pluralist theory is able neither to explain the inter-institutional relations
in the European judicial space, nor to offer a normative solution for the ever-growing
jurisdictional conflict.
29 Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], Feb. 7, 2014, Press release No. 9/2014, at
introductory para. [hereinafter Gauweiler I Press Release].
30 See Fabbrini, supra note 10, at 1012; Takis Tridimas & Napoleon Xanthoulis, A Legal Analysis of the Gauweiler
Case: Between Monetary Policy and Constitutional Conflict, 23 MAASTRICHT J. EUR.& COMP.L. 17, 18 (2016); Paul Craig
& Menelaos Markakis, Gauweiler and the Legality of Outright Monetary Transactions, 41 EUR. L. REV. 4, 14 (2016).
31 Recommendations to National Courts and Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings,
2012 O.J. (338) 1, para. 24 (Nov. 2, 2012); see also Francis Jacobs, Judicial Dialogue and the Cross-Fertilization of
Legal Systems: The European Court of Justice, 38 TEXAS INT. L.J. 547, 548 (2003).
32 See Monica Claes & Jan-Herman Reestman, The Protection of National Constitutional Identity and the Limits of
European Integration at the Occasion of the Gauweiler Case, 16 GERMAN L.J. 917 (2015); see also Fabbrini, supra
note 10; Georgios Anagstostaras, In ECB we Trust . . . the FCC we Dare! The OMT Preliminary Ruling, 40 EUR. L. REV.
744 (2015).
33 ECJ, Case C-370/12, Pringle v. Government of Ireland et al., ECLI:EU:C:2012:756, Judgment of Nov. 27, 2012.
34 ECJ, Case C-62/14, Gauweiler et al. v. Deutscher Bundestag, ECLI:EU:C:2015:400, paras. 51-52, Judgment of June
16, 2015 [hereinafter Gauweiler et al.].
35 See generally Fabbrini, supra note 10; Sarmiento, supra note 9.
1402 German Law Journal Vol. 18 No. 06
The Bundesverfassungsgericht most recently decided the OMT case after receiving the
response from the Court of Justice,36
and its judgment may be read with the main premises
of the theory of constitutional pluralism in mind. First, the Bundesverfassungsgericht
reasserted its ultimate claim to sovereignty by emphasizing its exclusive authority to
perform constitutional identity review37
and ultra vires review.38
Subsequent to its claim of
sovereignty and autonomy to carry out the above-mentioned reviews, the
Bundesverfassungsgericht implemented a more reconciliatory approach to the OMT
mechanism and the interpretation put forward by the Court of Justice. In particular, it placed
the responsibility of protecting the voters’ “right to democracy” on other constitutional
organs in Germany—namely, the Federal Government and the Bundestag39
—through the
legal and political process. The shift from the judicial to the political arena as the proper
forum for the protection of constitutional identity and the limits of transgression of powers
to the EU enshrined in the Basic Law can be seen as a display of judicial self-restraint, and
ultimately as a step towards a more balanced relationship between the constitutional
adjudicators in the EU.
In light of these events, I will address the two most prominent points of contention among
those scholars that have put in question the value and plausibility of the theory of
constitutional pluralism—the lack of a determined final arbiter in a pluralist setting, and the
role of the principle of primacy in a pluralist setting.
I. The Question of the Final Arbiter
As mentioned earlier, the theory of constitutional pluralism assumes that the question of
the final judicial instance in the EU as we know it is immaterial. Rather, the basis for the
inter-institutional relationship of national courts with a constitutional mandate and the
Court of Justice is one of an interactive40
heterarchy. Consequently, the pluralist theory
asserts, there is no final arbiter, and there should not be one.41
36 Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], June 21, 2016, Case No. 2 BvR 2728/13, 2
BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13 [hereinafter Gauweiler II].
37 Id. at paras. 136–42.
38 Id. at paras. 143–50.
39 Id. at para. 163.
40 MacCormick, supra note 1, at 264.
41 Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe: Three Conceptions of the Relationship
Between the German Federal Constitutional Court and the European Court of Justice, 36 COMMON MKT. L. REV. 351,
384 (1999).
2017 Constitutional Pluralism is Not Dead 1403
Kelemen was especially critical of how easily the pluralist theory accepted that it is
preferable, rather than problematic, to leave out an answer to the question of the final
arbiter on the limits of EU competences.42
In his view, the reluctance to resolve this issue
shows a legal system’s immaturity, and he called for a resolution of this question to enable
the EU legal system to call itself a constitutional order.43
His proposition is a clear one: In
order for the EU constitutional order to be considered “mature,” a decision on the final
arbiter is necessary, and the arbiter should be the Court of Justice, in line with the primacy
of EU law.44
Should a national constitutional court disagree with such a setting, he added,
the national court should declare the continuing membership of its Member State in the EU
unconstitutional. Such a step would encourage Member State governments to resolve this
constitutional conflict, if necessary, by recourse to Article 50 TEU, and to withdraw from
their membership in the Union.45
Such an approach seems extreme and greatly resembles the Cold War logic; the question of
the final arbiter will seemingly be settled solely because any other outcome would spell the
end of that Member State’s EU membership. In fact, it seems much more immature than the
status quo, as it is proposing a shift from mutually assured trust to mutually assured
destruction.46
While both might yield the same result, the cooperation between courts is far
more fruitful when they operate in the context of self-imposed restraint,47
where none of
the jurisdictions actually consider using the heavy weapons that are theoretically available
to them.48
42 Kelemen, supra note 8, at 139.
43 Id. at 140.
44 Id. at 141.
45 Id. at 141, 148–49.
46 Mutually assured destruction is a doctrine of military strategy and national security policy in which a full-scale
use of nuclear weapons by two or more opposing sides would cause the complete annihilation of both the attacker
and the defender. It is based on the theory of deterrence, which holds that the threat of using strong weapons
against the enemy prevents the enemy's use of those same weapons. The strategy is a form of Nash equilibrium in
which, once armed, neither side has any incentive to initiate a conflict or to disarm. Mutually Assured Destruction,
WIKIPEDIA.COM, https://en.wikipedia.org/wiki/Mutual_assured_destruction (last visited Sept. 19, 2016).
47 Monica Claes & Maartje de Visser, Are you Networked Yet? On Dialogues in European Judicial Networks, 8 UTRECHT
L. REV. 100, 106 (2012).
48 Even the Polish Trybunał Konstytucyjny, considered as one of the constitutional courts closest to the German
understanding of limits to the primacy of EU law, proposed several possible solutions in the event of a constitutional
conflict before leaving the EU:
In such an event [of a collision between provisions of EU law and the
Constitution] the Nation as the sovereign, or a State authority organ
authori[z]ed by the Constitution to represent the Nation, would need
to decide on: [A]mending the Constitution; or causing modifications
1404 German Law Journal Vol. 18 No. 06
The difference is clearly reflected in the respect for the EU’s national identity clause, the
importance of which both Kelemen and Fabbrini overlook. While Kelemen entertains the
idea of having respect for national—that is, constitutional—identity,49
it results from his
proposition that a proper safeguard of the inviolable core of a national constitution can only
take place in the ultimate withdrawal of the Member State from the EU.50
The doomsday
device51
activates, and everyone loses. Fabbrini, as discussed below, subordinates the
national identity clause completely to the principle of equality of Member States, thereby
leaving the reader in doubt as to why the national identity clause even exists.52
Applying these arguments to the most recent interactions between the Court of Justice and
a national constitutional jurisdiction paints a clear picture. In Kelemen’s scenario, the
Bundesverfassungsgericht did not need to refer the OMT case to the Court of Justice in the
first place. In his view, the doubts it had concerning the bounds of ECB’s competence are
easily resolved by: (1) Unconditionally accepting the OMT as it is; or (2) requiring withdrawal
from the EU if there has been a breach of Germany’s constitutional identity. In a pluralist
context, however, the Bundesverfassungsgericht expressed its own view of the position of
constitutional identity and how that might be affected by the introduction of the OMT
mechanism. The Court of Justice entered the discussion focusing solely on the analysis of
the mechanism, but deferred to the Bundesverfassungsgericht on questions of national
constitutional identity.53
Both jurisdictions have balanced and, it is submitted, will continue
to carefully balance their claims and arguments; as a result, they will exhibit considerable
self-restraint based on the principle of sincere cooperation and mutual respect. This would
certainly not be a novelty for the Bundesverfassungsgericht—it would be a continuation of
the pattern of its EU-friendly reasoning,54
in line with the pluralist vision of judicial
within Community provisions; or, ultimately, on Poland’s withdrawal
from the European Union.
Accession Treaty, supra note 12, at para. 13.
49 Kelemen, supra note 8, at 148.
50 Id.
51 A doomsday device is a hypothetical construction—usually a weapon, or collection of weapons—which could
destroy all life on a planet, particularly Earth, or destroy the planet itself, bringing “doomsday,” a term used for the
end of planet Earth. Doomsday Device, WIKIPEDIA.COM, https://en.wikipedia.org/wiki/Doomsday_device (Sep. 19,
2016).
52 Fabbrini, supra note 10, at 1018.
53 The Court mentioned national identity only in the preliminary points of the judgment (§17), omitting any further
analysis in the remainder of the judgment. See generally Gauweiler et al., supra note 34.
54 See Andreas Voßkuhle, Multilevel Cooperation of the European Constitutional Courts: Der Europäische
Verfassungsgerichtsverbund, 6 EUR.CONST.L.REV. 175, 188 (2010); Mattias Wendel, Judicial Restraint and the Return
2017 Constitutional Pluralism is Not Dead 1405
interactions in the EU.
II. Primacy
A further criticism directed to the theorists supporting constitutional pluralism is that they
seem to abandon or negate primacy55
as it is expressed by the Court of Justice in its longstanding
jurisprudence.56
In addition, Fabbrini correctly emphasizes that the principle of
primacy surpasses bilateral disagreements between the EU and individual Member States
and their constitutional/supreme courts, and serves to guarantee equality of all Member
States in a multilateral manner.57
Yet he questions the usefulness of the pluralist theory in
cases where a potential conflict in interpretation exists between EU law and national
constitutions.58
Against this backdrop, two main counter-claims aiming to reconcile primacy with the
pluralist approach state that: (1) Primacy should not be regarded as subordination; and (2)
without undermining the importance of primacy in ensuring the equality of Member States,
EU law’s respect for national identity is equally important.
In relation to (1), it is important to distinguish between primacy and subordination.
MacCormick explains this as follows:
[T]he doctrine of supremacy of Community law is not to
be confused with any kind of all-purpose subordination
of Member State law to Community law. Rather, the case
is that these are interacting systems, one of which
constitutes in its own context and over the relevant
range of topics a source of valid law superior to other
sources recognized in each of the Member State
systems.59
To understand this position better, it is useful to reflect upon the distinction between
to Openness: The Decision of the German Federal Constitutional Court on the ESM and the Fiscal Treaty of September
12, 2012, 14 GERMAN L.J. 21, at 41 (2013).
55 Kelemen, supra note 8, at 144.
56 The Court of Justice introduced this long-standing jurisprudence as early as 1964. See ECJ, Case C-6/64, Flaminio
Costa v. E.N.E.L., ECLI:EU:C:1964:66, Judgment of July 15, 1964.
57 Fabbrini, supra note 10, at 1014–16.
58 Id. at 1014.
59 MacCormick, supra note 1, at 264.
1406 German Law Journal Vol. 18 No. 06
supremacy and primacy made by the Spanish Tribunal Constitucional in its decision on the
Constitutional Treaty:
Supremacy is sustained in the higher hierarchical
character of a regulation and, therefore, is a source of
validity of the lower regulations, leading to the
consequent invalidity of the latter if they contravene the
provisions set forth imperatively in the former. Primacy,
however, is not necessarily sustained on hierarchy, but
rather on the distinction between the scopes of
application of different regulations, principally valid, of
which, however, one or more of them have the capacity
for displacing others by virtue of their preferential or
prevalent application due to various reasons.60
Both statements highlight the principle of primacy as a trigger for the application of EU law
in areas of EU competence in the event that there is a conflicting provision on the national
level. This principle outright rejects the absolute primacy of the EU legal order as a whole
over national legal orders. Dougan further explained this view using what he calls “trigger
primacy”—in a situation of conflict between national and EU law, the latter has primacy
when it satisfies the criteria for direct effect.61
In essence, Dougan is right to note that the
trigger primacy model accommodates both the constitutional requirements of national legal
systems while at the same time respecting the primacy of Union law, under the direct effect
condition.62
It is also important to point out that national constitutions of Member States have all, to a
certain extent, gone through a process of amendments with the aim of accommodating the
requirements and specificities of EU law.63
Mutual respect and judicial self-restraint,
60 S.T.C., Dec. 13, 2004, (Case No. 1/2004, para II-4) (Spain) [hereinafter Constitutional Treaty].
61 Michael Dougan, When Worlds Collide! Competing Visions of the Relationship Between Direct Effect and
Supremacy, 44 COMMON MKT. L. REV. 931, 934 (2007).
62 Id. at 942.
63 Millet points to different constitutional amendments that several Member States undertook in order to
accommodate the implementation of the European Arrest Warrant. See François-Xavier Millet, How Much Lenience
for how Much Cooperation? On the First Preliminary Reference of the French Constitutional Council to the Court of
Justice,51 COMMON MKT.L.REV.195, 196 (2014). Moreover,the SpanishConstitutional Courtaccepted the necessary
changes in its Melloni decision after receiving a response to the preliminary reference submitted to the Court of
Justice in Case C-399/11 Melloni. See S.T.C., Feb. 13, 2014 (Case No. 26/2014) (Spain) [hereinafter Melloni]); ECJ,
Case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107, 26 Feb.2013. In addition, this serves as a
case in point to demonstrate that national courts performing constitutional review are only one among many of
the relevant constitutional actors at the national level, and while their jurisprudence might be seen as central to
2017 Constitutional Pluralism is Not Dead 1407
advanced by the pluralist theory as the characteristics of the status quo among judicial actors
in the EU, do not deny the primacy of EU law. A pluralist account rejects the outright
subordination of national legal orders in their entirety to the EU legal order.
In close connection with the previous point, we now turn to point (2), which underlines the
importance of respect for national identity and its effect upon the equality of Member
States. If we were to accept the unconditional primacy of EU law over national legal systems,
the national identity clause in Article 4(2) TEU would become redundant. To understand this
dynamic, let us briefly recall Fabbrini’s argument on the importance of primacy in ensuring
the equality of Member States. Looking at the EU—not through a series of bilateral relations,
but rather as a multilateral entity in which actions of individual members affect all other
members—he identifies the principle of primacy as the ultimate assurance of the equality
of all Member States in the EU.64
He dismisses the possibility that each Member State will
re-negotiate the terms of its membership, and concludes that EU law should be applied in
all Member States equally.65
Fabbrini’s response to the counter-claim about the importance of the national identity
clause in the EU setting is not convincing. He interprets Article 4 TEU literally, stating that
the respect for national identity of Member States is located after, and is thus subordinate
to the declaration of equality of Member States.66
He dismisses the role of the national
identity clause in ensuring the equality of Member States too quickly, and ignores the fact
that the national identity clause was agreed upon by all Member States and, when applied
under the same conditions, it contributes to the equality of Member States while also
respecting the plurality of legal systems in the EU. In other words, all Member States are,
under equal conditions, able to protect their national particularities and constitutional
specificities. In addition, neither the case law of the Court of Justice, nor any other
international document,67
supports the literal interpretation suggested by Fabbrini. On the
the prospect of constitutional conflict, the national constitutional structure will also serve as a break in conflict
control.
64 Fabbrini, supra note 10, at 1019.
65 Id. at 1015.
66 Id. at 1019.
67 Article 31(1) of the Vienna Convention on the Law of Treaties states that treaties shall be interpreted: “[I]n good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.” No mention can be found of the literal interpretation which would resultina subordinate
relationship of two clauses within the same provision.
1408 German Law Journal Vol. 18 No. 06
contrary, cases such as Omega,68
Sayn-Wittgenstein,69
and Runevič-Vardyn70
serve as
excellent examples of how the Court found that national particularities are to be protected
at the cost of EU law’s primacy, but without any effect on the equality of Member States.
The national identity clause aims to accommodate national particularities in the application
of EU law on the national level, while the role of the Court of Justice is to determine the
limits to this exception through the application of the principle of proportionality. The
pluralist nature of the proposed interpretation of Article 4(2) TEU stems from its intrinsically
heterarchical nature, as it does not impose an overarching European value over specific
national values.71
On the contrary, it endorses an equal position of a variety of national
specificity claims that are all subject to the same process of being assessed through the
proportionality test. Consequently, respect for national specificities, subject to the principle
of proportionality, reinforces the role of the Court of Justice in ensuring the uniform
application of Union law through an essentially common limit to the exception of Article 4(2)
TEU, and in ensuring the equality of Member States.72
The case law of the Court of Justice on national identity confirms these assertions. The Court
has applied a contextual interpretation of “national identity” according to the already
established principles of a certain area of EU law in order to ensure its coherence with the
existing jurisprudence. In other words, when invoked in the area of free movement, the
clause has been interpreted analogously to public policy justifications on national restrictive
measures.73
The case law where the clause has been invoked to protect a national language
confirms this assertion. In Runevič-Vardyn, the Court stated that the protection of a national
68 ECJ, Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der
Bundesstadt Bonn, ECLI:EU:C:2004:614, Judgment of Oct. 14, 2004
69 ECJ, Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, ECLI:EU:C:2010:806, Judgment of
Dec. 22, 2010.
70 ECJ, Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės
administracija et al., ECLI:EU:C:2011:291, Judgment of May 12, 2011.
71 For a similar pluralist reading of the national identity clause, see Armin von Bogdandy & Stephan Schill,
Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty, 48 COMMON MKT.L.REV. 1417,
1452 (2011).
72 The Polish Trybunał Konstytucyjny made an excellent point concerning the national identity clause: “[C]onfirming
one’s national identity in solidarity with other nations, and not against them.” Trybunał Konstytucyjny 24.11.2010
[Polish Constitutional Tribunal decision of Nov. 24, 2010] K 32/09 at para. 2.1 [hereinafter Polish Treaty of Lisbon].
73 See Sayn-Wittgenstein, Case 208/09. The Court's reasoning in Case C-208/09 Sayn-Wittgenstein is particularly
useful in this regard. The Court first analyzed the status of the value invoked by the Austrian authorities, id. at paras.
74, 83, after which it introduced its connection to the already existing public policy justification. Id. at para. 84.
Finally, it states that “the concept of public policy as justification for a derogation from a fundamental freedom
must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any
control by the European Union institutions.” Id. at para. 86.
2017 Constitutional Pluralism is Not Dead 1409
language forms part of the national identity of a Member State and is therefore considered
to be a legitimate aim of a national restriction on free movement enshrined in Article 21
TFEU.74
Once defined as a legitimate aim, it is subject to the same test that is consistently
used in the context of restrictions on free movement.75
In effect, the Court of Justice
introduced a common denominator for all national identity claims—the principle of
proportionality.76
The Member States’ will to have their national particularities protected,
as embodied in the national identity clause, can effectively be implemented without
adversely affecting the equality of Member States—without an unconditional claim of
primacy of EU law over national legal systems in their entirety.
C. A Reply from the Courts
Critics of the theory of constitutional pluralism have, as shown earlier, concluded that it lacks
the ability to accommodate recent interactions between the Bundesverfassungsgericht and
the Court of Justice in relation to the legality of the OMT mechanism. They concluded that
the pluralist theory should be abandoned as a plausible way of explaining the judicial
interactions in the EU. It is therefore anything but an easy task to explain the latest events
through the lens of constitutional pluralism.77
In this Section, however, I argue that a proper
reading of the Treaty, but also the formal and informal expressions of all the judicial actors
involved, favor a heterarchical, multilateral approach.
In order to proceed with the argument, this Article adds an empirical contribution to the
discussion on the credibility of constitutional pluralism. It analyzes judgments, institutional
documents and reports, as well as public statements and writings of current and former
members of both the Court of Justice and national constitutional/supreme courts across the
EU. The analysis seeks to demonstrate that the use of a shared vocabulary proves the main
premises of the theory of constitutional pluralism. First, the use of a vocabulary to underline
the claims of ultimate authority by constitutional/supreme courts in their own respective
national orders, as well as by the Court of Justice, prove the first assumption of the theory—
the co-existence of multiple claims of authority within the same geographical space.78
74 Runevič-Vardyn, Case C-391/09 at para. 87.
75 Id. at para. 88.
76 Academic literature in this field generally seems to agree on this point. In opposition to the usefulness of the
principle of proportionality in the balancing exercise before the Court of Justice, see ELKE CLOOTS, NATIONAL IDENTITY
IN EU LAW 196 (2015).
77 For another recent piece supporting the theory of constitutional pluralism, see Matthias Goldmann,
Constitutional Pluralism as Mutually Assured Discretion: The Court of Justice, the German Federal Constitutional
Court, and the ECB, 23 MAASTRICHT J. EUR. & COMP. L. 119 (2016); Neil Walker, Constitutional Pluralism Revisited 22
EUR. L. REV. 333 (2016).
78 Walker 2002, supra note 2, at 337.
1410 German Law Journal Vol. 18 No. 06
Second, a common reconciliatory vocabulary points to the existence of a shared
understanding of the division of obligations among the participants of the European judicial
space—which I argue will auto-correct any imbalance that might arise from a constitutional
conflict. In this respect, all Member States are equal, and their relationship with the Court
of Justice is always conducted within the bounds of mutual respect79
and sincere
cooperation.
I. Methodology
In order to grasp the attitudes of national courts conducting constitutional review of the
principle of primacy, and to be able to offer some conclusions on the usefulness of the theory
of constitutional pluralism, I will briefly present the methodology used in the present
analysis. This will address, first, the choice of the Member State courts under analysis;
second, the sources that have been used; and, third, the choice of particular keywords. I will
also underline some limitations of the study.
First, the analysis focuses on national courts with a constitutional mandate, that is, courts
performing constitutional review. As a result of this focus, all Member States except for
Finland, the Netherlands, and Sweden were included in the analysis. The three countries
mentioned are difficult to include in the analysis as none of the them has a court that
conducts binding constitutional review of legislative acts. Sweden’s Supreme Court and
Supreme Administrative Court form a Council that conducts a non-binding review of
legislative drafts, whereas Finland’s draft legislation is reviewed by the Constitutional
Committee of the Parliament.80
In the Netherlands, judicial review against the Constitution
is prohibited by the Constitution81
and is performed by the Council of State (Raad van State),
an independent advisor to the government, Parliament, and the Dutch Senate. Such a
situation removes the point of comparison for these three Member States, as there is no
national jurisdiction performing binding constitutional review against the Constitution,82
and
consequently, no judicial interactions that are taking place in the context of a judicial conflict
of constitutional interpretation.
79 Id.
80 Franz Mayer, The European Constitution and the Courts Adjudicating European Constitutional Law in a Multilevel
System, JEAN MONNET Working Paper 9/03 at 4 (2003).
81 See GW. [Constitution] art. 120 (Netherlands). The Constitution in English is available at
http://www.parliament.am/library/sahmanadrutyunner/niderland.pdf, (Sept. 17, 2016). The prohibition includes
both ex ante and ex post review, as well as both substantive and procedural review. See Gerhard van der Schyff,
Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?, 11 GERMAN L.J. 275, 277 (2010).
82 MONICA CLAES, THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION 253–54 (2006).
2017 Constitutional Pluralism is Not Dead 1411
The status of parliamentary sovereignty in the UK and in the Netherlands83
may lead us to
conclude that both jurisdictions should be excluded from the analysis, but there are several
points that differentiate the two principles and warrant the inclusion of the UK’s Supreme
Court in the present analysis and not the Netherlands’ Hoge Raad. First, the Dutch
Constitution prohibits constitutional review by the courts against the Constitution, but
allows the Courts to review acts of Parliament against treaty law.84
This means that courts
are allowed to appraise acts of Parliament solely in relation to external sources of law, and
not the Constitution.85
Substantively, therefore, it is almost impossible for Dutch courts to
find themselves in conflict with the Court of Justice, as it is EU law—among other sources of
treaty law—and not national constitutional law, that is the standard of review envisaged in
Article 94 of the Dutch Constitution. This additionally removes the possibility to analyze the
interinstitutional dialogue, as there is no supreme jurisdiction in the Netherlands that
engages in constitutional dialogue with the Court of Justice. Finally, given the clear powers
of constitutional review of the Dutch Council of State and the Dutch Senate, both of which
are non-judicial bodies, the Supreme Court of Netherlands was excluded from the analysis.86
The situation in the UK is more nuanced when it comes to the powers of courts to review
legislation. The principle of parliamentary sovereignty emphasizes the exclusive power of
the Parliament to enact legislation, and gives the Parliament the power to repeal any
previous legislation, be it express or implied.87
In this reading of the principle, all statutes are
considered equal and courts are not allowed toreview them. Nevertheless, Lord Justice Laws
in his decision in Thoburn88
distinguished between ordinary statutes and constitutional
statutes. The latter, he claims, are more entrenched and may not be repealed by implication.
Constitutional statutes include, for example, the European Communities Act of 1972 (ECA)
and the Human Rights Act of 1998 (HRA). This exception is relevant for the position of
constitutional review in the UK, as Section 4 of the HRA allows the courts to review all acts
83 For a comparative analysis of the two systems, see Gar Yein Ng, Judicialisation and the End of Parliamentary
Supremacy: Shifting Paradigms in the Protection of the Rule of Law and Human Rights in the UK, France and the
Netherlands, 3 GLOBAL J. COMP. L. 50 (2014).
84 Article 94 of the Dutch Constitution says: “Statutory regulations in force within the Kingdom shall not be
applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions
that are binding on all persons.” See GW. [Constitution], supra note 81, art. 94. See also van der Schyff, supra note
81, at 280.
85 Yein Ng, supra note 83, at 88 (concluding that as a result of the monist approach to the incorporation of
international law, the Dutch courts have a peculiar role in interpreting directly applicable international law and
using it as a standard of review against national statutes).
86 Yein Ng, supra note 83, at 93 (concluding that the Netherlands, in comparison to the UK and France, has the
weakest form of judicial review).
87 Sir John Laws, Constitutional Guarantees, 29 STATUTE L. REV. 1, 3 (2008).
88 Thoburn v. Sunderland City Council [2002] EWHC 195 (Admin) [§§ 62–63].
1412 German Law Journal Vol. 18 No. 06
of Parliament against the standards of the HRA, and to possibly declare them incompatible.
The Parliament has thus far repealed all the statutes where the courts found an
incompatibility,89
but the one concerning the prisoners voting rights,90
resulting in a new role
for judicial review in the UK. In addition, the courts have also been torn between the
requirements of EU law and national law. In the controversial Factortame91
decision, the
House of Lords granted interim relief in relation to an act of Parliament. The House of Lords
relied on the response received by the Court of Justice,92
and created a precedent for judicial
review.93
Finally, the role of the recently established Supreme Court, in opposition to a
clearly defined political ex ante review of legislation—as can be found in the Netherlands
and Finland94
—makes it more important to include it in the analysis.95
Malleson presented
an array of opinions on the role the Supreme Court might assume, and concludes on a wide
consensus for a role that assumes a more active policing the boundaries of Parliament
action.96
The UK Supreme Court can therefore be regarded as a court with the competence
to perform constitutional review, albeit to a limited extent,97
thus warranting its inclusion in
the analysis.98
The position of the Supreme Court is additionally relevant because of its
interpretations of the British constitution, which place it in interinstitutional dialogue with
89 Kate Malleson, The Evolving Role of the Supreme Court, PUB. L. 754, 760 (2011).
90 HOUSE OF LORDS AND HOUSE OF COMMONS JOINT COMMITTEE ON HUMAN RIGHTS, HUMAN RIGHTS JUDGMENTS, 2014–15, HL
130 HC 1088, at 19, (Sept. 20, 2016)
https://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/130.pdf.
91 R v. Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.
92 ECJ, Case C-213/98, The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others,
ECLI:EU:C:1990:257, Judgment of June 19, 1990.
93 POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE OF THE HOUSE OF COMMONS, CONSTITUTIONAL ROLE OF THE JUDICIARY IF
THERE WERE A CODIFIED CONSTITUTION, 2013–14, HC 802, at 22, (Sept. 18, 2016)
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/802/802.pdf.
94 Id. at 21.
95 de Visser, supra note 16, at 83–86.
96 Malleson, supra note 89, at 763.
97 For Lord Neuberger’s response to the Political and Constitutional Reform Committee of the House of Commons,
see supra note 94, at 24. For a comprehensive analysis of the influence that the introduction of the Human Rights
Act has had on judicial review, and an argument supporting the existence of constitutional review in the UK, see
Malleson, supra note 89. See generally AILEEN KAVANAGH, CONSTITUTIONAL REVIEW UNDER THE UK HUMAN RIGHTS ACT
(2009).
98 The United Kingdom was included in the analysis regardless of the subsequent decision of the British voters to
leave the European Union. This was done primarily while the UK Supreme Court has been part of the European
judicial space, contributing to the development of the relationship between UK and EU constitutional law, and will
continue to do so until the final exit agreement between the UK and the EU. The decision of the UK to leave the EU
does not do away with the role the Supreme Court in relation to EU law, nor would the analysis be complete had it
been excluded.
2017 Constitutional Pluralism is Not Dead 1413
the Court of Justice. The remaining Member States all have either a separate constitutional
court performing binding constitutional review or this jurisdiction is held by the supreme
court—or a particular chamber thereof.
Second, the analysis focused on particular expressions and speech acts from the following
sources: (1) Judgments of the Court of Justice and national constitutional and supreme
courts; (2) national reports composed by national constitutional courts in 2014 for the 26th
Congress of European Constitutional Courts;99
(3) interviews conducted with Judges and
Advocates General of the Court of Justice;100
and (4) public statements of members of all the
judicial actors involved, in the form of academic writings, talks, seminars and public
interviews.101
Third, the study of the mentioned sources resulted in a finding of widespread use of several
common expressions—or concepts—102
that are used by both national courts performing
constitutional review, as well as by the members of the Court of Justice. While there was not
one single keyword used across all the Member States’ courts performing constitutional
review, several synonyms, as will be shown, have been found in various sources in sixteen
Member States.103
Moreover, another six Member States have expressly accepted the
primacy of EU law in their national legal orders, be it by way of a constitutional provision, or
99 All reports are available at http://www.confeuconstco.org/ (last visited Nov. 4, 2015). The advantage of the
reports is that all constitutional/supreme courts were answering the same questionnaire, thereby ensuring that all
the replies were given in the same context.
100 The interviews were conducted as part of the research visit to the Court of Justice between February and May
2015, with seven Judges and Advocates General. To ensure the anonymity of the interviewees, they will be referred
to as “Interviewee 1,” “Interviewee 2,” etc.
101 While the sources under (3) and (4) do not represent the official stance of the institution(s) for which the
interviewees work, Grainger pointed out, in relation to the Court of Justice in particular, that it is not a
homogeneous actor, but is rather a “complex social entity.” Similarly, Weiler pointed out that any analysis of the
Court of Justice cannot be complete if the Court is regarded simply as an “homogeneous institution.” See MariePierre
Grainger, The Future of Europe: Judicial Interference and Preferences, 3 COMP. EUR. POLITICS 155, 175 (2005);
Joseph Weiler, The Reform of European Constitutionalism, 35 J. COMMON MKT. STUD. 95, 106 (1997); Iyiola Solanke,
“Stop the ECJ”?: An Empirical Analysis of Activism at the Court, 17 EUR. L.J. 764, 765 (2011). Consequently, the
personal opinions of the decision-makers in the Court of Justice and other national constitutional courts bear
significance regarding the work and position of their institution(s). The same was underlined in the national report
of the Irish Supreme Court, which confirms the influence of the jurisprudence of both the ECJ and the Court in
Strasbourg on the case law of the Supreme Court, underlining how inevitable this is, given the work experience of
current Supreme Court judges as judges in European courts. See National Report–The Supreme Court of Ireland
(2014), at 3.
102 I will refer to them as keywords throughout the text.
103 Bulgaria, Cyprus, the Czech Republic, Denmark, Germany, Hungary, Italy, Latvia, Lithuania, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain and the United Kingdom.
1414 German Law Journal Vol. 18 No. 06
based upon the binding nature of the ECJ’s case law.104
Estonia, France and Greece have
expressed reservations towards the principle of primacy of EU law in relation to their
national constitutions, but have never applied such limits in an actual case.
Finally, it is necessary to emphasize that the analysis ahead might be limited because it will
involve comparing identical expressions that come from different legal systems and might
therefore have different meanings. This certainly holds true when comparing, for example,
the notion of “openness to European law” in the jurisprudence of the
Bundesverfassungsgericht and a statement of a judge of the Court of Justice given in an
anonymous interview. Nevertheless, the analysis is focused on national reports composed
by national constitutional courts and interviews with different Judges and Advocates
General of the Court of Justice, both of which were used in the same context and therefore
contain comparable notions.
II. Keyword Analysis
In order to address the first premise of the theory of constitutional pluralism, it is necessary
to briefly reflect upon those expressions which would point to a State-centered sovereigntist
view of national courts with a constitutional mandate. National courts with a constitutional
mandate have consistently claimed final authority in their territory. They do this to protect
the national constitution as the highest act applicable in a Member State,105
and to
emphasize sovereignty as the ultimate limit for European integration and the reach of the
principle of primacy.106
National constitutional courts have also put forward identity-based limits to the principle of
primacy ofEU law, reasserting the untouchable character of the constitutional core.107
These
104 Austria, Belgium, Croatia, Ireland, Luxembourg, and Malta.
105 See Ústavní Soud České republiky ze dne 26.11.2008 (ÚS) [Decision of the Constitutional Court of Nov. 26, 2008],
sp.zn. Pl. ÚS 19/08 para. 216 (Czech) [hereinafter Lisbon Treaty I]; Danish Højesteret, Carlsen and Others v. Prime
Minister, UfR [Apr. 6, 1998], Case No. I 361/1997, 800, reported in English in 3 COMMON MKT. L.REP. 854 (1993)
[hereinafter Carlsen]; Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], July 6, 2010, 2 BVR
2661/06, 126 BVERFGE 286, para. 68 [hereinafter Honeywell]; National Report, The Constitutional Court of the
Republic of Lithuania (2014),at 5; Accession Treaty, supra note 12, at para. 11; UK SupremeCourt, Pham v. Secretary
of State for the Home Department, U.K.S.C. 19 para. 90 (2015) [hereinafter Pham].
106 See Ústavní Soud České republiky 08.03.2006 (ÚS) [Decision of the Constitutional Court of Mar. 8, 2006], sp.zn.
Pl. ÚS 50/04 at headnote para. 8 (Czech) [hereinafter Sugar Quotas III]; Bundesverfassungsgericht [BVERFGE]
[Federal Constitutional Court], Oct. 12, 1993, 2 BVR 2134/92, 89 BVERFGE 155 at para. C.II.1.a [hereinafter
Maastricht]; Constitutional Treaty, supra note 60, at para. II–2.
107 See Lisbon Treaty II, supra note 14, at para. 150; Conseil constitutionnel [CC] [Constitutional Court] decision No.
2006–540 DC, July 27, 2006, para. 19 (France) [hereinafter Information Society]; Bundesverfassungsgericht
[BVERFGE] [Federal Constitutional Court], June 30, 2009, Case No. 2 BvR 1010/08; 2 BvR 1022/08; 2 BvR 1259/08; 2
BvR 182/09, NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 123, para. 240 [hereinafter Lisbon]; Gauweiler Press Release,
supra note 29, at para. 2; Corte Cost. 27 dicembre 1973, n. 183/1973, reported in English in 2 COMMON MKT. L.REP
2017 Constitutional Pluralism is Not Dead 1415
expressions point to the parallel existence of competing claims to ultimate authority on the
national level, thus illustrating the main premise of constitutional pluralism. The sovereignty
claims on the national level are consistently put forward by constitutional adjudicators,
particularly in situations of possible clashes in interpretation.108
This does not, as will be
shown below in the analysis of reconciliatory keywords, undermine the ability of
constitutional pluralism to balance these opposing claims through its auto-correct function.
The debate concerning the EU’s sovereignty is more complex. This complexity stems from
the inherent and almost natural assumption that sovereignty belongs to nation states.
Nevertheless, while the source and the development of EU sovereignty differs substantially
from the classic notion of State sovereignty, and we may debate its nature,109
there seems
to be consensus on its existence.110
The sovereignty of the EU, although never explicitly
mentioned, can be discerned from the early case law of the Court of Justice, most notably
in Costa v. ENEL:
By creating a Community of unlimited duration, having
its own institutions, its own personality, its own legal
capacity and capacity of representation on the
international plane and, more particularly, real powers
stemming from a limitation of sovereignty or a transfer
of powers from the States to the Community, the
Member States have limited their sovereign rights,
albeit within limited fields, and have thus created a body
of law which binds both their nationals and
themselves.111
372 (1974) (Italy) [hereinafter Frontini]; Latvian Satversmes tiesa [Constitutional Court decision of Apr. 7, 2009]
Case No. 2008-35-01, [hereinafter Latvian Treaty of Lisbon], paras. 16.3, 17; see also Polish Treaty of Lisbon, supra
note 72, at para. 1.1.2.
108 For an analysis of the increasing frequency of state-centered claims by the Bundesverfassungsgericht, see
Jo Murkens, “We Want our Identity Back”: The Revival of National Sovereignty in the German Federal Constitutional
Court's Decision on the Lisbon Treaty, 25 PUB. L. 530 (2010).
109 Gráinne de Búrca, Sovereignty and the Supremacy Doctrine of the European Court of Justice, in SOVEREIGNTY IN
TRANSITION, 449 (Neil Walker ed., 2003).
110 See Walker 2003, supra note 2, at 12; Hans Lindhal, Sovereignty and Representation in the European Union, in
SOVEREIGNTY IN TRANSITION 87, 107 (Neil Walker ed., 2003); De Búrca 2003, supra note 109, at 451. Conversely, the
Latvian Constitutional Court concluded the EU does not have sovereignty in the classic Westphalian sense. Its
subsequent analysis points to a clear struggle to fit the EU into the category of a classical international organization.
See Latvian Treaty of Lisbon, supra note 107, at paras. 17–18.
111 Costa v. E.N.E.L., supra note 56, at 593. A more detailed analysis of the vocabulary of the Court of Justice
concerning the question of sovereignty of the EU can be found in Bruno de Witte, Direct Effect, Supremacy and the
Nature of the Legal Order, in EVOLUTION OF EU LAW (Paul Craig & Gráinne de Búrca eds., 1999).
1416 German Law Journal Vol. 18 No. 06
The Court of Justice addressed the characteristics of the newly established legal order,
asserting a claim to ultimate legal authority in the limited fields of its competence, albeit not
in the classical sense that we usually associate with nation states.
I will proceed with the analysis of the recurring reconciliatory vocabulary, which will autocorrect
any imbalance that might arise from a constitutional conflict. In my view, it points to
the existence of a shared understanding of the division of obligations among the participants
of the European judicial space. The following figure depicts the keywords and the intensity
of their use in the sources under analysis. The horizontal axis represents the number of
jurisdictions in which a certain keyword placed on the vertical axis was used.
Figure 1 Use of keywords
The argument proceeds as follows: The actual implementation of the keywords used, the
exhibited self-restraint, and a self-imposed obligation to avoid conflict. All of these offer
Preference for the
preliminary
reference
procedure
Self-imposed
obligationto
avoid conflict
Coordination
Cooperation
Particular care for
national
constitutional
concerns
Mutual respect
EU-friendly
interpretation
Unlikelinessof a
conflict taking
place
Mutual loyalty
Caution
0 2 4 6 8 10 12
Number of jurisdictions
Keywordsused
2017 Constitutional Pluralism is Not Dead 1417
strong proof that a clear, ex ante, answer to the question of the final arbiter is indeed
unnecessary. Moreover, an insistence upon its resolution might bring about more harm than
good, as it may provoke conflicts of unimaginable proportions.112
Subsequently, the analysis
of common keywords will be used to depict the functioning of the pluralist “auto-correct”
system as a way of preventing an outbreak of constitutional conflict.
The sets of keywords under analysis, as will be shown in what follows, have four common
characteristics: (1) Their implementation is voluntary in nature, which means that the
decision to abide by them is political, rather than legal;113
(2) they are aimed at conflict
prevention, both from the perspective of national constitutional jurisdictions and that of the
Court of Justice; (3) they are inherently pluralist, as none of them contain elements of either
superiority or subordination; and (4) their implementation shows institutional awareness of
the big, multilateral picture in the everyday work of the courts under analysis, as they are
conscious of the need for a balanced relationship among all constitutional jurisdictions in
the EU.
All four characteristics point to the conclusion that there exists a strong awareness of the
importance of preserving the pluralist setting, present both in national constitutional
jurisdictions and the Court of Justice.
As can be seen in Figure 1, the most commonly used set of keywords is “EU-friendly
interpretation”.114
In particular, the majority of answers were given in national reports on
the question of their approach towards the relationship between national constitutions and
EU law, and how to proceed in a case of a possible divergence between the two. Such an
understanding is a direct application of the principle of sincere cooperation among the
courts under analysis.115
The use of the term was so widespread among the national reports
112 Discussed above in Section 2.
113 Weiler reflected upon the relationship between the Court of Justice and its interlocutors, concluding it is not “a
matter of legal determination and then logical deduction from the doctrine, but a matter of empirical observation
and social and political explanation.” Weiler, supra note 16, at 419; see also Christina Eckes & Stephan Hollenberg,
Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al-Jedda,
Ahmed and Nada, 20 MAASTRICHT J. EUR. & COMP. L. 220, 224 (2013).
114 See Corte Cost. 8 giugno 1984, n. 170/1984 at paras. 7–3 [hereinafter Granital]; Voßkuhle, supra note 54, at 188;
Honeywell, supra note 105, at paras. 100, 111; Lisbon Treaty, supra note 107, at para. 221; Polish Treaty of Lisbon,
supra note 72, at para. 3.1; General Report, Conference of European Constitutional Courts (2014), at 2–4; National
Report, The Supreme Court of Cyprus (2014), at 3; National Report, The Constitutional Court of the Czech Republic
(2014), at 4; National Report, The Federal Constitutional Court of the Republic of Germany (2014), at 2; National
Report, The Constitutional Court of Hungary (2014), at 3; National Report, The Constitutional Court of the Republic
of Latvia (2014), at 8; National Report, The Constitutional Court of the Republic of Lithuania, supra note 105, at 15,
26; National Report, The Portuguese Constitutional Court (2014), at 23.
115 Regarding its principle of openness towards EU law, the German Bundesverfassungsgericht stated in Honeywell:
“When exercising this competence to affect a review, the principle of openness of the Basic Law towards Europe is
1418 German Law Journal Vol. 18 No. 06
that it was also underlined as one of the most common practices in the General Report of
the 2014 Conference of European Constitutional Courts.116
While the use of this term in
national reports has little legal value per se, I argue that it reflects a shared attitude that, in
practice, results in a uniform application of EU law at the national level.
The second most commonly used set of keywords is the “self-imposed obligation to avoid
conflict”.117
The term was used widely among European constitutional courts when asked
about possible divergences in interpretation between national constitutional law and the
exigencies of EU law. In addition, Advocate General Wathelet118
agreed that thereis a degree
of self-restraint that drives the behavior of the courts involved in order to prevent a conflict
from taking place when a particular case calls into question both national constitutional law
and EU law. The use and application of this keyword is central to the preservation of the
pluralist setting without any claims of superiority or subordination, as it aims to prevent
constitutional conflict.
From an anti-pluralist perspective, self-restraint might be regarded as an inherent weakness
of the current system that needs to be remedied by a clear set of jurisdictional demarcations.
Essentially, the critics point to the lack of conflict resolution rules as the main failure of the
pluralist theory. Conversely, as shown below, when we regard law as a dynamic process,
rather than law as a static rule, the lacunae of the system are resolved by interpreting the
norms in their societal context through analogy; these norms are applied as “tools of
authoritative decision-making” in place of a precise rule.119
to be complied with as a correlate of the principle of sincere cooperation (Article 4.3 TEU) and to be made fruitful.”
Honeywell, supra note 105, at para. 100.
116 General Report, Conference of European Constitutional Courts, supra note 114, at 2–4.
117 See Trybunał Konstytucyjny 16.11.2011 [Polish Constitutional Tribunal decision of Nov. 16, 2011] SK 45/09 para.
2.6 [hereinafter Brussels Regulation]; Lisbon Treaty II, supra note 14, at para. 112; General Report, Conference of
European Constitutional Courts, supra note 114, at 2; National Report, The Constitutional Court of the Czech
Republic, supra note 114, at 4; National Report, The Supreme Court of Denmark (2014), at 12; National Report, The
Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; National Report, The Constitutional
Court of Hungary, supra note 114, at 2-3; National Report, The Constitutional Tribunal of the Republic of Poland
(2014), at 2; National Report, The Constitutional Court of Romania (2014), at 12; M. Wathelet, Advocate General,
Constitutional Courts and the CJEU: Is There a Dialogue? History and Prospects, Address at the EU Law Discussion
Group at the Law Faculty, University of Oxford (Oct. 23, 2015).
118 See generally Wathelet, supra note 117.
119 ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 10 (1995).
2017 Constitutional Pluralism is Not Dead 1419
Two more keywords need to be mentioned alongside the “self-imposed obligation to avoid
conflict”: (1) The unlikeliness of a conflict taking place;120
and (2) caution.121
All three sets
show a preference for the parallel functioning of Member States’ legal systems and the EU
legal system, not operating in a hierarchical relationship. When the EU competence to
regulate a certain area clashes with the national competence to protect constitutional
values, the situation will be resolved through an EU-friendly interpretation, which is also
driven by a self-imposed obligation to avoid any conflict, wherever possible. Even in the eyes
of the constitutional courts of Member States, such situations are extremely unlikely to
occur, but when they do, they should be approached with caution, keeping in mind the
ultimate aim of avoiding conflict.
The next group of keywords relevant for the pluralist explanation of the judicial interactions
in the area of constitutional interpretation are: (1) Cooperation,122
(2) coordination,123
(3)
mutual respect,124
and (4) mutual loyalty.125
While the previous group of keywords indicated
a more passive attitude of conflict avoidance, in the highly unlikely scenario that problems
arise, this group of keywords takes a step forward and engages constitutional jurisdictions
in conduct that is more active. Not only do the constitutional jurisdictions avoid conflicting
situations, but they foster cooperation and coordination in their work. In addition, they
operate in the context of mutual respect and loyalty. Read together, these sets of keywords
show that constitutional courts implement the principle of sincere cooperation in practice.
The final group of keywords focuses more on reflecting the attitudes of those that make
decisions at the Court of Justice—the judges and advocates general. In particular, it aims to
120 See National Report, The Constitutional Court of Belgium (2014), at 31; Lisbon Treaty I, supra note 5, at para. 5;
Carlsen, supra note 105, at para. 9.6; Granital, supra note 114, at para. 7-7; Brussels Regulation, supra note 117, at
para. 2.7; Constitutional Treaty, supra note 60, at para. II-4; Melloni, supra note 63, at para. II-3; National Report,
The Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; Pham, supra note 105, at para.
91.
121 See Brussels Regulation, supra note 117, at paras. 2.5, 2.8; National Report, The Constitutional Court of Romania,
supra note 117, at 12; Pham, supra note 105, at para. 91.
122 See Brussels Regulation, supra note 117, at para. 2.6; General Report, Conference of European Constitutional
Courts, supra note 114, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; National
Report, The Constitutional Court of Romania, supra note 117, at 12-13; National Report, The Constitutional Court
of the Slovak Republic (2014), at 12; National Report, The Constitutional Court of the Republic of Slovenia (2014),
at 18; UK Supreme Court, R (on the application of HS2 Action Alliance Limited) [2014] U.K.S.C. 3 at para. 202
[hereinafter UK Supreme Court, HS2]; Pham, supra note 105, at para. 91.
123 Granital, supra note 114, at para. 7-4.
124 See National Report, The Constitutional Court of the Czech Republic, supra note 114, at 11; Brussels Regulation,
supra note 117, at para. 2.5; National Report, The Constitutional Court of Romania, supra note 117, at 58; Pham,
supra note 105, at para. 91.
125 National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 2.
1420 German Law Journal Vol. 18 No. 06
show not only the need for the national constitutional jurisdictions to project an EU-friendly
jurisprudence, but also the need to show the Court of Justice’s attempts to adhere to the
principle of sincere cooperation, as well as the obligation to respect the national identities
of Member States. Two sets of keywords have been analyzed to this end: (1) Particular care
is taken where national constitutional concerns are involved;126
and (2) there is a preference
for the use of the preliminary reference procedure.127
When asked about possible clashes in
interpretation with national constitutional jurisdiction, six judges/advocates general have
confirmed that in their work in a specific case, particular care is taken if a national
constitutional concern arises. In addition, three interviewees expressed their preference for
any possible conflict to take place in the realm of the preliminary reference procedure. The
importance of such an attitude should not be underestimated—the trust that national
constitutional courts have in the Court of Justice to comply with the obligation to respect
national particularities is not unfounded.
In addition to the use of keywords, the present work has analyzed the extent of
cross-referencing to other constitutional jurisdictions throughout the EU, as such crossreferencing
represents yet another sign of constitutional adjudicators’ awareness of the
multilateral momentum of judicial interactions, both institutionally and substantively. The
practice of cross-referencing is common among a broad range of constitutional jurisdictions
in the EU,128
and the practice has become more widespread in recent years.129
This trend is
significant as it further confirms the argument that constitutional courts throughout the EU
are aware of the need for a multilateral approach to judicial interactions in the EU.
Cross-referencing is, of course, not without its shortcomings; the courts that do make use of
it may be seen as cherry-picking only those judgments that support their argument. On this
126 Interviewee 1; Interviewee 2; Interviewee 3; Interviewee 4; Interviewee 5; Interviewee 6.
127 Interviewee 1; Interviewee 2, Interviewee 4; see National Report, The Supreme Court of Denmark, supra note
117, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; Brussels Regulation, supra
note 117, at para. 2.6.
128 See National Report, The Constitutional Court of Austria (2014), at 11; National Report, The Constitutional Court
of Croatia (2014), at 24; National Report, The Supreme Court of Cyprus, supra note 114, at 5; National Report, The
Constitutional Court of the Czech Republic, supra note 114, at 20; National Report, The Federal Constitutional Court
of the Republic of Germany, supra note 114, at 17; National Report, The Constitutional Court of Hungary, supra
note 114, at 2; National Report, The Supreme Court of Ireland, supra note 101, at 5; National Report, The
Constitutional Court of the Republic of Latvia, supra note 114, at 8; National Report, The Constitutional Court of
the Republic of Lithuania, supra note 105, at 30; National Report, The Constitutional Court of the Republic of Malta
(2014), at 4; National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 15; National
Report, The Portuguese Constitutional Court, supra note 114, at 38; National Report, The Constitutional Court of
Romania, supra note 117, at 61–62; National Report, The Constitutional Court of the Slovak Republic, supra note
122, at 9; National Report, The Constitutional Court of the Republic of Slovenia, supra note 122, at 26; National
Report, The Constitutional Tribunal of Spain (2014), at 26; Pham, supra note 105, at 91.
129 General Report, Conference of European Constitutional Courts, supra note 114, at 8.
2017 Constitutional Pluralism is Not Dead 1421
point, Claes and Reestman130
analyzed the cross-referencing done by the German
Bundesverfassungsgericht in its preliminary reference to the Court of Justice, where case
law from nine other Member States was cited in support of the court’s interpretation of
constitutional identity. They found that the case law cited only partially supports the view
of the German Court, while more recent jurisprudence of the cited courts has been omitted.
Nevertheless, even such cross-referencing is welcome and contributes to the general
awareness of all the courts involved that they are equal counterparts who are jointly and
multilaterally contributing to the development of what can be perceived as EU constitutional
law.
The practice of cross-referencing underscores both the substantive and the institutional
elements of a pluralist heterarchical judicial setting. Substantively, constitutional
jurisdictions in the EU are using each other’s jurisprudence to add a comparative element to
their reasoning, as well as to support their arguments. The use of foreign jurisprudence both
enriches the reasoning of the court in question and adds to a broader momentum of mutual
acknowledgment and the idea of a shared legal culture and standards. As explained in the
General Report of the Conference of European Constitutional Courts, the use of European
constitutional jurisprudence contributes to the creation of a “European standard” of
converging jurisprudence in Europe.131
In that respect, one can conclude that these judicial
interactions—in the broadest sense—represent a conversation and a discussion on the
substantive matters of European constitutional law.
Institutionally, the cross-referencing acknowledges the multilateral, heterarchical setting
among Europe’s highest courts. When one constitutional jurisdiction cites another one to
support its claims, it means that they are regarding each other as peers and equal
counterparts.132
The same logic is applicable not only among national constitutional
jurisdictions, but also in relation to the Court of Justice. Consequently, one should reject
Fabbrini’s claims concerning the too narrow bilateral relationship among courts that would
arise when there are exceptions to the principle of primacy of EU law.133
Conversely,
introducing an exception with a common limit for all Member States contributes to the
equality of Member States.134
The relationship is characterized again by the same mutual
respect and self-restraint that occurs between the Court of Justice and national
130 Claes & Reestman, supra note 32, 941.
131 General Report, Conference of European Constitutional Courts, supra note 114, at 9.
132 The very framework of the Conference of European Constitutional Courts demonstrates how cooperation among
judges and courts contributes to what Jacobs famously called the cross-fertilization of legal systems. See generally
Jacobs, supra note 31.
133 Fabbrini, supra note 10, at 1014–1016.
134 To reiterate the point made by the Polish Trybunał Konstytucyjny: “[C]onfirming one’s national identity in
solidarity with other nations, and not against them.” Polish Treaty of Lisbon, supra note 72, at para. 2.1.
1422 German Law Journal Vol. 18 No. 06
constitutional jurisdictions. This demonstrates a clear heterarchy.135
The use of the keywords under analysis, when examined in the context of possible clashes
in constitutional interpretation, resounds immensely. Kelemen’s claims on the immaturity
of the EU legal system, which, he asserts, does not deserve to be called a “constitutional”
one,136
need to be rejected. On the contrary, in a system in which the questions of the final
arbiter and the absolute superior legal order do not exist, the participants in the EU judicial
space need to be commended for their mature reasoning and behavior.
Fundamentally, all sets of keywords reflect both an attitude of mutual trust and the principle
of sincere cooperation. While at times it is the Court of Justice that will take care of the
national concerns and particularities,137
at other times it will be national constitutional
courts that will cautiously interpret matters that involve EU law—all with the same
awareness of the importance of EU’s pluralist nature and the balance it brings to these
judicial interactions, both bilaterally and multilaterally.
A few final words need to be said about the first case in the history of the EU where a
national constitutional court abandoned the mutually assured control of conflict and
declared an EU act ultra vires—Landtová.138
The case concerned a very specific issue of
entitlements to pension rights after the break-up of Czechoslovakia. The case represented
an unfortunate depiction of an internal struggle between the Czech Supreme Administrative
Court and the Czech Constitutional Court.139
It is important to note that the Czech
Constitutional Court has never again applied its own reasoning,140
particularly after the
composition of the Constitutional Court changed drastically; it is now comprised of former
members of the Supreme Administrative Court.141
135 Co-operative programs, conferences and networking events of these judicial networks play a role in the coordination
of judicial activity and the unification of practices at the national level. One of their main advantages is
precisely the level-playing field, where no judicial instance is in a hierarchical position to another. See Claes & de
Visser, supra note 47, at 101.
136 Kelemen, supra note 8, at 146.
137 See Lord Neuberger and Lord Mance in UK Supreme Court, HS2, supra note 122, at para. 201.
138 Ústavní Soud České republiky 31.12.2012 [Decision of the Constitutional Court of Dec. 31, 2012], Pl. ÚS 5/12
(Czech) [hereinafter Czech CC Slovak Pensions].
139 For a more detailed analysis of the intricacies of the case, see Michal Bobek, Landtová, Holubec, and the Problem
of an Uncooperative Court: Implications for the Preliminary Ruling Procedure, 10 EUR. CONST. L. REV. 54 (2014).
140 Id. at 66.
141 Id.
2017 Constitutional Pluralism is Not Dead 1423
The marginality of the case has been underlined by Advocate General Wathelet,142
Fabbrini,143
and Interviewee 4.144
Moreover, the 2014 National Report for the Conference of
European Constitutional Courts prepared by the Czech Constitutional Court itself does not
mention this judgment among those relevant for the relationship between EU law and
national constitutional law, but only mentions it as an example of a divergence in
jurisprudence, stating that the Court of Justice “overlooked”145
the facts of the case. What
is most important is that the Czech Constitutional Court implicitly admitted its own mistake
by never applying the judgment again and complying with the initial interpretation put
forward by the Court of Justice.
III. The Pluralist Auto-Correct
This system of self-restraint and a self-imposed obligation to avoid conflict might not seem
to be a feature of a mature constitutional order, particularly to scholars who use the classic
State-centered standards for their assessment.146
Contrary to these assertions, this Article
rests on the assumption put forward by Neil Walker, who emphasized the need to analyze
and judge the EU constitution—in the widest sense of the term147
—in its own context and
on its own merits.148
Having concluded that Member States share the same idea of a
peaceful character of interactions with the Court of Justice, I further argue that the pluralist
system contains within itself an “auto-correct” function, which serves as a check and balance
among constitutional jurisdictions on the national and on the EU level.149
In order to fully understand the pluralist auto-correct function, it is first necessary to address
another feature of a pluralist legal order—incrementalism. Specifically, incrementalism
accentuates the gradual development of institutional interactions (its procedural aspect),
142 See generally Wathelet, supra note 117.
143 Federico Fabbrini, The European Court of Justice, the European Central Bank and the Supremacy of European
Law: Introduction, 23 MAASTRICHT J. OF EUR. & COMP. L. 1, 2 (2016).
144 Interviewee 4 stated that the case should not be taken into account as a representation of anything, as is it
vitiated by numerous mistakes on behalf of both the Czech Constitutional Court and the Court of Justice.
145 The exact wording used by the Czech Constitutional Court was: “The Constitution[al] Court inferred that the
Court of Justice of the European Union had overlooked these facts, as it otherwise would have had to conclude that
EU law was not applicable in the situation [at] hand.” National Report, The Constitutional Court of the Czech
Republic, supra note 114, at 18.
146 See Kelemen, supra note 8, at 146.
147 See generally supra note 13 for the discussion and the relevant literature.
148 See Walker 2003, supra note 3, at 40. See generally Rodin’s argument, supra note 14.
149 See Weiler, supra note 16, at 419 (discussing “persuasion pull” and “compliance pull” as the drivers behind the
implementation of the case law of the Court of Justice).
1424 German Law Journal Vol. 18 No. 06
and the creation of rules and principles (its substantive aspect).150
Incrementalism may be
regarded as stemming from an understanding of law as process, where the lines between
lex lata and lex ferenda are becoming increasingly blurred, as the use of analogy and
contextual interpretation take center stage.151
With these premises in mind, the lack of legal
norms on the resolution of constitutional conflict among national constitutional jurisdictions
and the Court of Justice seem overstated. In addition, the recent critics of the pluralist theory
have overlooked incrementalism, both as a feature of the system and in how it contributes
to its sound functioning.
Let us recall briefly the Solange saga to depict both the procedural and substantive aspects
of incrementalism—influencing intra-EU judicial interactions and contributing more broadly
to the development of EU constitutional law.152
In its first Solange judgment,153
the
Bundesverfassungsgericht retained the right to exercise judicial review in matters of
protection of fundamental rights, as long as the European integration process did not reach
a level whereby it would guarantee a satisfactory level of protection. If we were to use the
arguments of those criticizing pluralism today and apply them to the Solange situation, this
judgment would probably be seen as the demise of the entire European project, while
judicial interactions would be characterized at their absolute low. Conversely, subsequent
events154
demonstrated the gradual, step-by-step155
development of the protection of
fundamental rights on the EU level,156
but also the contribution to the relationship between
national constitutional jurisdictions and the Court of Justice.157
It has also demonstrated how
150 See Laurence Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE
L.J. 273, 314 (1997); Krisch, supra note 3, at 247.
151 See Higgins, supra note 119, at 10. See also CLAES, supra note 82, at 713.
152 See Shaw, supra note 4, at 14, 19, 24; see also Zenon Bañkowski & Emilios Christodoulidis, The European Union
as an Essentially Contested Project, 4 EUR. L.J. 341, 342 (1998).
153 Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], May 29, 1974, 37 ENTSCHEIDUNGEN DES
BUNDESVERFASSUNGSGERICHTS (BGHZ) 271 (hereinafter Solange I).
154 In its response, the Court of Justice used the common constitutional traditions of Member States as the source
of inspiration and the level of protection of fundamental rights that will be accorded on the Union level. See ECJ,
Case C-4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, at para. 13,
Judgment of May 14, 1974. Finally, the German Constitutional Court accepted such a level of protection in the
Solange II judgment. See Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], Oct. 22, 1986, 73
ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 339 [hereinafter Solange II].
155 Krisch, supra note 3, at 247 onwards.
156 The area of fundamental rights is an excellent example of how the EU has evolved as a constitutional legal order
not comparable to nation states. See Gráinne de Búrca, After the EU Charter of Fundamental Rights: The Court of
Justice as a Human Rights Adjudicator?, 20 MAASTRICHT J. EUR. & COMP. L. 168, 169 (2013).
157 See Alec Stone Sweet, The Structure of Constitutional Pluralism: Review of Nico Krisch, Beyond Constitutionalism:
The Pluralist Structure of Post-National Law, 11 INT. J. CONST. L. 491, 500 (2013).
2017 Constitutional Pluralism is Not Dead 1425
such a gradual development contributed to the avoidance of an outburst of conflict or the
activation of Kelemen’s predicted doomsday device.158
Therefore, in order to make a
conclusion about the applicability of the theory of constitutional pluralism to the EU
constitutional setting, one needs to take a step back from individual judgments and ground
the analysis with regard to the relevant jurisprudence as a process.159
It is precisely because
of incrementalism that a broader examination of the relevant case law confirms the main
premises of the pluralist theory. Furthermore, it prevents future conflicts from taking place
through the auto-correct function.
The auto-correct mechanism functions in the following context: In the EU as we know it,
issues prone to constitutional conflict arise regularly.160
Both the Court of Justice and
national constitutional jurisdictions are able, through their respective procedural avenues,
to control the extent of the conflict. There are also two legalimperatives driving this dynamic
in two opposite directions—the principle of primacy of Union law on the one hand, and the
obligation to respect the national identity of Member States on the other. An explicit
primacy clause that would serve as a resolution of this inherent conflict failed to come into
force as part of the Constitutional Treaty after its signature in 2004. This failure implied that
the sentiment among Member States was and is against any such a conclusive provision.161
In the following Treaty amendment in 2007, the provision on the obligation of the EU to
respect national identities of Member States was expanded in its wording, but it also fell
under the jurisdiction of the Court of Justice from that time onward.162
Support for the auto-correct function can be found in the most recent Order of the
Bundesverfassungsgericht, in a case where the European Arrest Warrant was to be applied
to an American citizen, and he was to be extradited to Italy, where he was sentenced in
158 Kelemen, supra note 8, at 141, 148–149.
159 Similarly, Rodin differentiates among the immediate and the future impact of the case law of the Court, arguing
that the latter is based on the changed societal context, gradually transforming a judgment into a landmark. See S
Rodin, Dumb and No More Here, Address at the Conference on Central and Eastern European Judges Under The
EU Influence: The Transformative Power of Europe Revisited on the 10th Anniversary of the Enlargement, 12–13
May 2014, EUI, Florence, Italy [cited with the author's permission], at 10, 14.
160 Stone Sweet argues that the possibility of a conflict is a “manifestation, probably permanent, of a pluralist
structure of EU law.” Stone Sweet, supra note 20, at 65.
161 This is not to diminish the importance of the principle of primacy in the case law of the Court of Justice, but
rather to emphasize the importance of the “political” in relation to the “legal.” Moreover, it also serves to reiterate
the importance of the national constitutional setting and its ability to constrain national constitutional jurisdictions.
162 Barbara Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the
Identity Clause, JEAN MONNET Working Paper 01/12 at 4 (2012).
1426 German Law Journal Vol. 18 No. 06
absentia.163
The German Court emphasized that any conflict that may arise would be an
exception, and would not harm the uniform application of Union law, as each individual case
would be handled with restraint and in a manner open to European integration. This
judgment confirmed that individual judgments do not prejudice the relationship between
the legal orders.164
It is necessary to underline that the auto-correct function does not challenge or undermine
the parallel sovereign claims of the 28165
national constitutional systems as well as the
primacy claim put forward by the Court of Justice. It is precisely in the acknowledgment of
these claims that the auto-correct takes center stage. As the keyword analysis has shown, a
clash between parallel sovereignty claims is avoided through the application of self-restraint
and mutual accommodation. More particularly, the analysis has shown that each of the
systems has built-in conditions for the application of the auto-correct, such as the principle
of EU-friendly interpretation, or the national identity clause. It is only through interactions
between the systems, however, that the auto-correct function takes place and brings about
a balance among the different individual systems claiming sovereignty. Thus, while the
conditions for the utilization of the auto-correct are contained within each of the systems,
its consequences affect the system as a whole—namely its balance.
In such a setting, the auto-correct would prevent an outbreak of conflict between either of
the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on
the part of all the actors involved of the benefits of a pluralist setting results in conflict
management and control. Theresult of a givencase will sometimes be on the side of national
concerns,166
and at other times on the side of integration.167
In any event, the outcome will
be reached after careful balancing, conducted by applying both self-restraint and the strong
will to avoid conflict,168
and also an EU-friendly interpretation on behalf of national
163 Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], Dec. 15, 2015, Order No. 2 BvR 2735/14
[hereinafter EAW Order].
164 The same was underlined by the Austrian Constitutional Court, where it stated that should a conflict arise, this
should not be developed beyond an individual case. National Report, The Constitutional Court of Austria, supra
note 128, at 9.
165 Soon to be 27.
166 See generally Case C-36/02 Omega, supra note 68; Case C-208/09, Sayn-Wittgenstein, supra note 69; Case C-
391/09 Runevič-Vardyn, supra note 70.
167 See generally Conseil constitutionnel [CC] [Constitutional Court] decision No. 2007–560 DC , Dec. 20, 2007
(France) [hereinafter Treaty of Lisbon]; Honeywell, supra note 105; Gauweiler, supra note 34.
168 Two further examples that highlight the auto-correct function are: (1) the decision of the
Bundesverfassungsgericht in relation to the European Arrest Warrant (EAW). In this decision, the German Court
was in a position to enter into a discussion on the compatibility of the EAW with the Basic Law. Instead, the Court
only focused on interpreting the national law that implemented the EAW, and avoided entirely having to entertain
the idea of declaring an EU act contrary to the national constitution. Bundesverfassungsgericht [BVERFGE] [Federal
2017 Constitutional Pluralism is Not Dead 1427
jurisdictions and/or the accommodation of national identity claims by the Court of Justice.169
Over time, the pluralist setting will inherently work to auto-correct any imbalance, and
prevent the activation of the doomsday device.
D. Conclusion
This Article was written while awaiting the decision from the “Rashomon in Karlsruhe,”170
and its subsequent decision may very well have activated the doomsday device had it
decided to kill the OMT mechanism. Conversely, and in line with the main argument of this
Article, it was the obligation of sincere cooperation, based on mutual respect among all the
constitutional adjudicators in the EU, that drove the Bundesverfassungsgericht’s most
recent decision.171
The argument in this Article has been that the pluralist auto-correct
function—the self-restraint of individual actors—was central in steering the
Bundesverfassungsgericht’s decision.
The Court of Justice has given precedence to keeping the OMT mechanism in place, and has
refrained from entering a confrontation on the interpretation of the German constitutional
Constitutional Court], July 18, 2005, Decision No. 2 BvR 2236/04, [hereinafter EAW Constitutionality]. See also Alicia
Hinarejos, Case Comment: Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR
2236/04) on the German European Arrest Warrant Law, 43 COMMON MKT. L. REV. 583 (2006); and (2) the decision of
the Polish Trybunał Konstytucyjny on the constitutional complaint concerning Article 45 of the Council
Regulation 44/2001/EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters. See 2012 O.J. (L 12) 1 (Jan. 16, 2001). The Polish Trybunał Konstytucyjny provided a
broad interpretation of the term “normative act” and assumed jurisdiction to review secondary acts of EU law
against the Constitution. In addition, the Tribunal stated that its jurisdiction to do so is only subsidiary to that of the
Court of Justice in relation to EU primary law (§2.6). Nevertheless, it found the provision to be in accordance with
the Polish Constitution. I argue that, regardless of expanding its jurisdiction to review secondary EU acts, the Polish
Constitutional Tribunal was aware and intentionally exhibited self-restraint in order to avoid conflict. See generally
Brussels Regulation, supra note 117.
169 See the Opinion of Advocate General Maduro in Joined cases C-402/05 P and C-415/05 P Kadi 2008, §44. See
also Claes, supra note 82, at 37.
170 As Franz Mayer famously named the Bundesverfassungsgericht. Franz Mayer, Rashomon in Karlsruhe: A
Reflection on Democracy and Identity in the European Union, 9 INT. J. CONST. L. 757 (2011).
171 Claes and Reestman were correct to point out that the Court of Justice was particularly wise not to engage in
the debate on the difference between national and constitutional identity, but rather focused on solid arguments
to assess the legal basis for, and in the event preserve, the OMT. Claes and Reestman, supra note 32, at 970. In July
2017, the Bundesverfassungsgericht submitted its second request for a preliminary reference to the Court of
Justice, engaging in a more profound debate on the limits of the monetary policy mandate of the ECB, and the
mechanisms used to redress the Euro crisis. The reference is an excellent illustration of the procedural and
substantive aspects of incrementalism, developing and building the constructive conversation between the two
courts, and a parallel refinement of the standard of review of ECB's activity in resolving the Euro crisis.
Bundesverfassungsgericht [BVERFGE] [Federal Constitutional Court], July 18, 2017, Order No. 2 BvR 859/15, 2 BvR
980/16, 2 BvR 2006/15, 2 BvR 1651/15.
1428 German Law Journal Vol. 18 No. 06
identity. The Court of Justice has itself demonstrated in a highly mature manner172
how the
pluralist system works; the question of the ultimate authority was indeed irrelevant in the
preliminary reference it received from the Bundesverfassungsgericht. What was relevant for
the Court of Justice was the function performed by the OMT mechanism in securing the
stability of the Eurozone, and how to preserve that mechanism in the current scheme of the
Treaties. In the same fashion of self-restraint, for the purposes of preserving the situation of
mutual respect—not only between the EU and Germany bilaterally, but also multilaterally
among all Member States—the Bundesverfassungsgericht was most prudent when reaching
its final decision and upholding the OMT mechanism as interpreted by the Court of Justice.
172 This is contrary to Kelemen, who underlines the immaturity of the system that needs to be overcome by a final
resolution of the quest for the ultimate judicial authority in the EU. See Kelemen, supra note 8, at 136.