6 Juridical Tribune Volume 10, Issue 1, March 2020
courts. The most important reason to which to ECJ refers in a line of jurisprudence
sixty years old is that European law gives rights to citizens that are not provided by
national law and must be implemented and enforced at domestic level. If primacy
and effectiveness are not secured, the EU legal framework does not work. The
problem is that national constitutional law also has competing claims for final
authority and there are some occasions signalled by the doctrine and some high
constitutional courts of Member States, where national law should not yield. As
Chalmers et. al. put it, while there are some compelling reasons to claim the
authority of EU law a priori over national law, there are also good fundamental
reasons why, in some circumstances, domestic constitutional law should prevail de
facto (ie. protection of fundamental rights, ultravires legislation, constitutional
The current situation in EU legal doctrine is as it follows. Very few argue
that EU law has to prevail over national (constitutional) law all the time and in all
circumstances or reverse, that national law should prevail invariably over EU law.
The real question is when EU law should have higher authority and take
precedence over national law4. In fact, during the last decade different schools of
(constitutional) pluralism have studied this problem of “if/when” EU law should
prevail searching for theories describing how to conciliate the competing claims for
final authority that both national law and EU law put forward. They do so by:
1) looking at common shared constitutional principles and values among Member
States (constitutional pluralism) or 2) by rejecting overarching principles and
admitting pluralism and diversity per se (pluralism).5 No matter their differences,
both strands of legal thinking challenge the classic doctrinal studies and ECJ´s
case-law of the authority of EU law with a powerful critique.
While we certainly need a new theory of European constitutional law to
describe our current legal reality, this study provides an overview of most
important arguments put forward by the school of (constitutional) pluralism and
explains how classic doctrinal theories on the authority of EU law have difficulties
replying to this critique. Furthermore, it aims to prove the influence of the
philosophical school of perspectivism upon the field of European constitutional
law. This is done by asking the following questions: How do we justify different
perspectives on the authority of one legal order over the other when they are
constructed from different but equally valid legal premises? Is there any
perspective more legitimate than the others? If not, how do we combine them?
While this contribution does not intend to construct any new legal theory, it
formulates nevertheless an invitation to reflect upon critique and claims of
3 Ibid, pp. 208-212, 219. See also White (2017) who has even referred to a situation of “principled
legal desobedience“ where resistance to the authority of EU law is justified (ie. it is opressive) with
three conditions: public approval (ie. e-democracy or plebiscite), defense of public interest and on
the basis of EU´s breach of certain constitutional values. White, J., Principled disobedience in the
EU, “24 Constellations”, 2017, available at <http://eprints.lse.ac.uk/69103/> (last accessed
3 October 2019).
4 Chalmers, D., Davies, G. and Monti, G., op. cit., 2019, p. 222.
5 Ibid, p. 203.