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Summary European Union Law - Constitutional Pluralism
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Comprehensive summary/essay plan on the principle of constitutional pluralism in EU Law. This document covers the definition of constitutional pluralism, the EU principle of supremacy (specifically the cases of Costa v ENEL and Internationale Handelsgesellschaft), the role the CJEU has played in as...

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  • October 6, 2024
  • 5
  • 2022/2023
  • Summary

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Constitutional Pluralism
1. Introduction – What is constitutional pluralism?
Constitutional pluralism = refers to idea that the legal systems of the EU and its MS
are best regarded as being arranged in a “conceptual heterarchy”, where no one
system is normatively superior to the other, rather than in a hierarchy where one
system must be supreme.
This can be expressed in many ways.
BUT – essay will focus on the idea that national courts and the Court of
Justice (CJEU) should engage in an ongoing dialogue and mutual
accommodation of the functions and objectives of both systems.
Essay will begin by showing that a shift away from the pure supremacy of EU law
over national law, as envisaged by the CJEU, towards this idea of constitutional
pluralism is clearly for the better.
Given the CJEU’s apparent lack of a (comparatively) strong basis for such
supremacy over national law and its tendency and willingness to push this
supremacy too far.
Arguments will centre around the idea of democracy and the impact
this has on the already argued ‘democratic deficit’ of the EU.
BUT – while this is true, essay will go on to show, by examining litigation in
Germany and Denmark, that pushing the idea of a dialogue, while it can bring about
substantial benefits, it is, in its current state, unsustainable given the general
animosity towards the idea from both national courts and the CJEU alike.
2. EU principle of Supremacy:
The case of C-6/64 Costa v ENEL has long been regarded as laying down the
principle of supremacy of EU law.
In other words, it was held that EU law is not overridden by national
legislation.
Court reasoned that the Treaty of Rome created its own legal system which,
on the entry into force of the Treaty, became an integral part of the legal
systems of the MS and which their courts are bound to apply.
What is perhaps less widely recognised is that the founding treaties are completely
silent on the issue of priority between national law and EU law.
The competency articles arguably provide a basis for primacy – however
their role is somewhat limited.
They divide up the powers for legislating on certain subjects between
the EU and the national courts depending on their respective
competences, but they do not address the key question being posed
here as to which body (the EU or national) generally takes primacy.
The Advocate General in Costa itself recognised that he was unable to find
any basis in the Treaties for the primacy of EU law and instead it had to be
derived from the purpose of the EU (or the European Economic Community
as it was then).
There could not be the creation of a common market if each member
state applied and interpreted EU law however it saw fit.
Has even been held by the Court in C-11/70 Internationale Handelsgesellschaft –
That EU law takes precedence over constitutional law.
This automatically raises an issue.
Grimm – by holding this precedence of EU law, the CJEU has
ascribed to the Treaties the effect of a constitution.
As a result of the ruling in Costa, the provisions of the
Treaties which, if enacted in a MS, would be mere statutory
law that is open to democratic change at all times, now enjoy
the precedence of application and thus their quasi-

, constitutional effects, beyond the reach of the democratic
process.
It is true that the powers of the EU are conferred by
MS – BUT – doubt they envisaged that the CJEU
would take it this far.
On a theoretical basis at least, it is difficult to argue that the
Treaties, which were never conceived of as being a
constitution, should rank higher than the constitutions of the
MS.
This is compounded by the fact that, in many MS, Germany for example, the
constitution is codified and deeply entrenched into the legal system.
Strict adherence to the arguments of the uniformity and efficacy of
EU law, which the CJEU clings to in its case law, does not justify the
courts pushing its claim to supremacy this far.
Given the fact that this idea of the supremacy of EU law was a concept
created by the CJEU itself and not found within a Treaty which the member
states signed up to, it can reasonably be argued that the laws and constitutions
of member states should at least be considered of equal significance and
importance to EU law.
3. CJEU has gone too far:
On a more practical note, it is particularly clear from the Ajos litigation in Denmark
that the CJEU has gone too far in asserting the supremacy of EU law over domestic
law.
Thereby making such paradigm shift presented by constitutional pluralism
both desirable and necessary.
Central question in Ajos litigation = concerned the horizontal effect of general
principles of EU law, specifically whether a private party who was engaged in a
dispute against another private party could rely on an unwritten principle of EU law
prohibiting discrimination on the grounds of age.
As part of this, it fell to the Supreme Court of Denmark (SCDK) to determine
whether it, as a national court, should give effect to an unwritten general
principle of EU law, either by interpreting the conflicting national law in
conformity or by disapplying it.
When referred to the CJEU, the Court effectively required the SCDK to disapply a
written statute provision in favour of an unwritten principle simply because it derived
from EU law, even though this meant reversing the SCDK’s long-standing
interpretive position and its ensuing case law.
In any member state, simple reference to democracy would dictate that an
unwritten principle should fall second place to a statutory rule.
Hard to see any logical basis upon which it could be argued that such
unwritten principle that was in issue in the Ajos litigation should have been
given supremacy.
The fact that it is merely EU law does not come close to a good
justification.
It is clear that the CJEU has been far too preoccupied with the idea of upholding the
unity and effectiveness of EU law that it forgets that the EU is in fact a union of states
rather than a state in and of itself.
This cannot be recognised when it requires a MS to disapply its
democratically legitimised law in favour of a principle that has no basis in the
Treaties.
There is already strong criticism aimed at the EU regarding a democratic deficit.
This is compromised even further by this strong influence the CJEU has
created for itself by declaring the supremacy of EU law.

4. Implications of the Ajos Litigation:

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