Constitutional pluralism: Chronicle of a death foretold?

• Published date: 01 July 2017
• Author: Michael A. Wilkinson
• Date: 01 July 2017
• DOI: http://doi.org/10.1111/eulj.12236

ORIGINAL MANUSCRIPT

Constitutional pluralism: Chronicle of a death

foretold?

Michael A. Wilkinson*

Abstract

What remains of the idea of constitutional pluralism in the wake of the Euro‐crisis? According to the new anti‐

pluralists, the recent OMT saga signals its demise, calling to an end the tense stalemate between the ECJ and

the German Constitutional Court on the question of ultimate authority. With the ECJ's checkmate, OMT

represents a new stage in the constitutionalisation of the European Union, towards a fully monist order. Since

constitutional pluralism was an inherently unstable and undesirable compromise, that is both inevitable and to

be welcomed. It is argued here that this is misguided in attending to the formal at the expense of the material

dimension of constitutional development. The material perspective reveals a deeply dysfunctional constitutional

dynamic, of which the judicial battle in OMT is merely a surface reflection. This dynamic now reaches a critical

conjuncture, encapsulated in the debate over ‘Grexit’, and the material conflict between solidarity and austerity.

Constitutional pluralism, in conclusion, may be an idea worth defending, but as a normative plea for the co‐

existence of a horizontal plurality of constitutional orders. This requires radical constitutional re‐imagination

of the European project.

1|INTRODUCTION

Is constitutional pluralism—so long a dominant referent in the constitutional theory of the European Union—

another casualty of the Euro‐crisis? It has recently been argued that the OMT ruling of the European Court

of Justice, in response to the first preliminary reference ever submitted by the German Constitutional Court,

signposts its demise.

1

Specifically, the ECJ's strident defense of the supremacy of EU law over national law,

and of its own authority to determine the boundaries of the EU's competence (the so‐called judicial

Kompetenz‐Kompetenz) in the face, initially, of fierce resistance from the German Court, has elicited its

obituary.

2

Developed in the wake of the German Constitutional Court's Maastricht Urteil, constitutional pluralism

captured the uneasy but apparently functional compromise between the German Court and the ECJ on

the question of who has the ultimate authority to determine the validity of EU, and by extension, domestic

*London School of Economics and Political Science, London, UK

1

See F. Fabbrini, ‘After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States’, (2015) 16

German Law Journal, 1003–1024; D. Kelemen, ‘On the Unsustainability of Constitutional Pluralism’, in F. Fabbrini (ed.), ‘The ECJ, the

ECB and the Supremacy of EU Law: Special Issue’, (2016) 23 Maastricht Journal of European and Comparative Law, 136–151.

2

Case C‐62/14, Gauweiler and Others v. Deutscher Bundestag, ECLI:EU:C:2015:400; Bundesverfassungsgericht [BVerfG—Federal Con-

stitutional Court], 2 BvR 2728/13 (Jan. 14 2014, June 21, 2016).

DOI: 10.1111/eulj.12236

Eur Law J. 2017;23:213–233. © 2017 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 213

law.

3

The answer of the pluralists, in short, was that both enjoy that authority within their own jurisdictions

and, provided each treat their authority and the authority of the other with caution, respect and discretion,

outright conflict could be avoided and openness (or ambiguity) on the question of the final arbiter retained.

This arrangement, thought to be based on mutual accommodation and informal dialogue, is now said to have been

brought to a close, ironically, with the first ever ‘formal’conversation between Karlsruhe and Luxembourg. After OMT,

the new anti‐pluralists contend, constitutional pluralism can be presumed dead, obsolete in the EU's present phase of

integration.

4

The current demise of constitutional pluralism is then read as a sign of its immanent dysfunctionality: a

chronicle of a death foretold. The tense compromise between judicial authorities would inevitably have

collapsed eventually; it would then be undesirable because the rule of law requires certainty and uniformity of

application. This could only be guaranteed by an unequivocal acceptance of the supremacy of EU law and of

the authority of the ECJ to interpret EU law and determine questions of legal validity decisively and for all

Member States, without national reservations. When contest spilled over into conflict, transnational legality would

be threatened. Functional and normative arguments are thus conflated into one fierce indictment—constitutional

pluralism is not only an ‘oxymoron’,

5

it is also based on an ‘illogical’and even ‘immoral’concession to domestic

legal authority, permitting a form of national ‘cherry picking’in a way that violates basic principles of Member

State equality.

6

The ECJ's victory in OMT should therefore be celebrated and European constitutional monism

fully embraced.

7

It is argued here that the focus of these attacks on constitutional pluralism and their celebration of EU judicial

supremacy is misplaced, one‐sided in attending to the formal at the expense of the material dimensions of

constitutional development. This elision obscures the critical evolution of the EU, particularly since the Euro‐crisis,

a condition that will not be resolved by judicial fiat alone and may well be aggravated by it.

To see why, we need to look beyond the judicial skirmish in OMT, which is but a surface reflection of more expan-

sive and evolving political, institutional and ideological battles raging throughout the Eurozone and the EU as a whole.

The Court in OMT rubber‐stamps a central bank programme deemed essential to the Euro's survival but which has

doubtful constitutional credentials and is based on a rationale that looks increasingly shaky, the ‘irreversibility’of

the Euro. However decisive OMT may be for the question of legal authority and judicial Kompetenz‐Kompetenz, the

wider battle for political authority over the Euro and over the EU continues to be fought. OMT is not irrelevant to

the material outcome of this political contest but it is far from decisive.

This wider sense of unease is exposed by that fact that those advocating the ECJ's unequivocal juridical suprem-

acy, and celebrating its stark assertion in OMT, resort to balancing it against a crude reassertion of Member State sov-

ereignty: a constitutional balance is maintained because the ultimate political authority to withdraw (or renegotiate

membership) remains vested firmly with the Member States. If it was once held that exit was unthinkable, only a for-

mal option, this authority, since the Brexit referendum, no longer looks merely hypothetical. In the anti‐pluralist

account, in other words, OMT represents a purely juridical federal constitutional moment, supposedly balanced by a

resolutely anti‐federal political authority.

3

See N. MacCormick, ‘The Maastricht Urteil: Sovereignty Now’, (1995) 1 European Law Journal, 259; N. MacCormick, Questioning Sov-

ereignty: Law, State and Nation in the European Commonwealth (Oxford University Press, 1999); N. Walker, ‘The Idea of Constitutional

Pluralism’, (2002) 65 Modern Law Review, 317–359. For a representative collection of essays on constitutional pluralism, including its

later iterations, see M. Avbelj and J. Komárek (eds.), Constitutional Pluralism in the European Union and Beyond (Hart, 2012). See most

recently, N. Walker, ‘Constitutional Pluralism Revisited’, (2016) 22 European Law Journal, 333–355.

4

Fabbrini, above, n. 1; Kelemen, above, n. 1.

5

M. Loughlin, ‘Constitutional Pluralism: An Oxymoron?’, (2014) 3 Global Constitutionalism,9–30.

6

Kelemen, above, n. 1, at 139.

7

Fabbrini, above, n. 1, at 1023: ‘As much as the prospect of a nullification of the ECB OMT program by the BVerfG sheds dark clouds

on the future of the EU, the case may serve as the opportunity to clarify once and for all that, in our Union of states, no state court is

above the common law.’

214 WILKINSON