Constitutional pluralism and legal perspectivism in European Union law

• Author: M. Elvira Mendez-Pinedo
• Position: Faculty of Law, University of Iceland
• Pages: 5-35

STUDIES AND COMMENTS

Constitutional pluralism and legal perspectivism

in European Union law

Professor M. Elvira MENDEZ-PINEDO1

Abstract

During the past decade, new theories of (constitutional) pluralism have

challenged the classic authority and primacy of EU law as asserted by the classic

jurisprudence of the Court of Justice of the European Union. This school of thought,

represented by many different authors, has tried to construct a new horizontal relationship

between legal orders and European supreme jurisdictions. Constitutional pluralism has

enjoyed doctrinal success but also received harsh criticism. This study reviews the most

important literature a nd argues that the (constitution al) pluralism diverse strands of

scholarship represent a continuation of what, in philosophical terms, can be termed “legal

perspectivism” as conceptualized by Spanish philosopher Ortega y Gasset in 1923. It

explores the question when EU law should have higher autho rity and primacy over

national constitutional laws from both classic and new perspectives. No legal theory of EU

constitutional law has so far been universally accepted by all actors. It concludes with the

finding that the critique to the unconditional authority of EU law that constitutional

pluralists ha ve brought to the European field is still alive and extremely relevant both in

theory and in practice.

Keywords: European constitutional law; European integration; legal pluralism;

literature; legal perspectivism.

JEL Classification: K10, K33.

1. Introduction

What are the legal foundations supporting the authority of European Union

(EU) law? In the last decade the Court of Justice of the European Union (ECJ) has

tried to provide some good reasons to justify the claims that this European legal

order puts forward on the basis of the pooling of sovereignty consented by Member

States by signing and ratifying the EU Treaties: autonomy, primacy, effectiveness,

pre-emption and loyalty2.

Regarding the authority of EU law, with the exception of some written

provisions (Article 4(3) TEU, Article 2 TFEU, and Declaration 17 on the primacy

of EU law); most of the arguments above referred have been created by the case-

law of the ECJ to secure the primacy and effectiveness of EU law before national

1 M. Elvira Mendez-Pinedo - Faculty of Law, University of Iceland, mep@hi.is.

2 Chalmers, D., Davies, G. and Monti, G., European Union Law, 4th edition, Cambridge University Press,

Cambridge, 2019 pp. 201-203.

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

identity/even sovereignty)3.

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 (last accessed

3 October 2019).

4 Chalmers, D., Davies, G. and Monti, G., op. cit., 2019, p. 222.

5 Ibid, p. 203.