Constitutional pluralism and legal perspectivism in European Union law

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

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.... (see full summary)

 
FREE EXCERPT
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 <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.

To continue reading

REQUEST YOUR TRIAL