Does the Court of Justice own the Treaties? Interpretative pluralism as a solution to over‐constitutionalisation

• DOI: http://doi.org/10.1111/eulj.12298
• Published date: 01 November 2018
• Date: 01 November 2018

ORIGINAL ARTICLE

Does the Court of Justice own the Treaties?

Interpretative pluralism as a solution to

over‐constitutionalisation

Gareth Davies*

Abstract

It is often assumed that Court of Justice interpretations of EU law are definitive and binding. How-

ever, this conflicts with conventional ideas about the trias politica, as well as with the principle of

conferral, and rests on no more than the Court's own assertion. It also has harmful policy conse-

quences, forcing national courts into constitutional resistance and, in claiming to fix the meaning

of the Treaties, smothering Union politics. Interpretative pluralism, by contrast, insists on the possi-

bility of diverging interpretations. That allows for wider participation in the construction of EU law,

while retaining the integrity of Union law through commitment to shared texts and a balance of

power between institutions. Institutional disagreements are reframed, not as conflicts between legal

orders, but as conflicts about the meaning of a shared one. This approach is more profoundly inte-

grative than the Court's top‐down approach, and also allows for greater diversity and experiment.

1|TOO MUCH CONSTITUTION, OR TOO LITTLE DEBATE?

When a rule is constitutionalised, ownership of that rule is usually thought to rest with the constitutional court. If the

rule expresses a policy choice which is too contingent and political to belong properly to a court, then this

judicialisation of what belongs in the representative sphere may be described as ‘over‐constitutionalisation’. This is

how Dieter Grimm has recently and powerfully described the situation within the EU, referring to the remarkable

breadth and impact of the EU Treaties, whose content appears to be determined exclusively by the European Court

of Justice (ECJ), when, he suggests, much of that content is ordinary and contestable enough that it ought to be part

of democratic politics.

1

------------------------------------------------------- -- --- -- -- --- -- --- -- --- -- -- --- -- --- -- -- --- -- --- --

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2018 John Wiley & Sons Ltd.

*

Faculty of Law, Vrije Universiteit Amsterdam, Amsterdam, Netherlands. The research for this article was part of the Norface Project

‘TransJudFare’, which was partly funded by the Netherlands Scientific Organisation (NWO).

1

D. Grimm, ‘The Democratic Costs of Constitutionalisation: The European Case’(2015) 21 European Law Journal, 460. See, also, M.P.

Maduro, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’(2007) 1 European Journal of Legal

Studies, 137.

Received: 17 April 2018 Revised: 14 August 2018 Accepted: 1 October 2018

DOI: 10.1111/eulj.12298

358 Eur Law J. 2018;24:358–375.wileyonlinelibrary.com/journal/eulj

If the problem is over‐constitutionalisation, then the answer must be de‐constitutionalisation. He suggests that

laws which do not truly belong to the highest and least contested normative cadre should be removed from the

Treaties, and instead adopted via secondary legislation. That would allow the EU legislature to define and revise them

to reflect the views of the people, potentially enhancing the democracy and legitimacy of the European project.

This article offers another view. The broad constitutionalisation of EU policies is certainly a feature of the EU.

2

However, the idea that this creates a democratic problem rests on the presumption that ‘fixing’the text in some way

‘fixes’its meaning—that only a rewrite can change the constitution. That in turn rests on the presumption that a con-

stitutional text definitively means whatever the constitutional court says it does. It will be argued below that in the

EU context this is wrong. It is not plausible to understand the ECJ as having definitive interpretative authority over

EU law. Both national courts and legislatures and the EU legislature are in a position to legitimately challenge its inter-

pretations and put forward differing ones. Politics can enter via a contest, or dialogue, over meaning.

Further, it will be suggested that the resulting interpretative pluralism—as Richard Stith has called it—is a more

constructive and democratic approach than either the existing state of affairs or de‐constitutionalisation.

3

Unlike

the current dominance of the Court, interpretative pluralism allows change and participation in the shaping of EU pol-

icies. However, unlike de‐constitutionalisation, it respects the normative core of European integration, without which

the project becomes incoherent and directionless—merely integration for its own sake. Interpretative pluralism

accepts and emphasises the fundamental principles to which Member States have agreed, but allows many voices,

from the representative to the constitutional, to participate in determining what these mean.

2|THE LIMITED INTERNALISATION OF EU LAW

EU law faces many challenges. This article focuses on one: it is insufficiently internalised by the Member States. Thus

states typically engage—at best—in what Conant has called contained compliance, following the narrowest possible

interpretation of a rule or judgment, but not seeking to embed the underlying principle further within their legal sys-

tem.

4

An immediate functional explanation can be found in the costs, threats and disruption brought by EU norms,

which Member States seek to resist, expressing a natural status quo bias. More profoundly, Hirschl has suggested

that there is a wider, even global, trend of resistance to supranational constitutionalism, and he places national resis-

tance to the Court of Justice and EU law in the context of a movement towards what he calls ‘deference to local

authority’.

5

The local, the national, is fighting back, in law as in politics.

In national courtrooms, the immediate drivers of such resistance may be located in several factors. First, EU law

is perceived as ‘other’—as strange, sometimes hard to understand, and as separate from national law. As such, judges

may seek to exclude or ignore it wherever they can. They are not motivated to engage, since such engagement dis-

rupts what they know and have learnt. Second, EU law is often perceived to take insufficient account of local inter-

ests and particularities and to deny the expression of local values. It is thought to strain the fabric of society by

challenging its cultural norms, institutions and even its procedural and constitutional principles—legal certainty, for

example.

6

Acting on these perceptions may then be justified by a perception that EU law is less legitimate, because

of weaker democratic credentials, and, for legal actors, because of perceived activism by the Court of Justice, which is

primarily responsible for much of that law.

2

F.W. Scharpf, ‘De‐constitutionalisation and Majority Rule: A Democratic Vision for Europe’(2017) 23 European Law Journal, 315.

3

R. Stith, ‘Securing the Rule of Law through Interpretative Pluralism: An Argument from Comparative Law’(2008) 35 Hastings Con-

stitutional Law Quarterly, 401.

4

L. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press, 2002).

5

R. Hirschl, ‘Opting‐out of “Global Constitutionalism”’ (2018) 12 Law and Ethics of Human Rights,1.

6

E.g., Case 302/86, Commission v. Denmark, ECLI:EU:C:1988:421 (Recycling); Case 90/86, Zoni, ECLI:EU:C:1988:403 (Pasta); Case C‐

159/90, Grogan, ECLI:EU:C:1991:378 (Abortion); Case C‐148/02, Garcia Avello, ECLI:EU:C:2003:539 (Naming of children); Case C‐

144/04, Mangold, ECLI:EU:C:2005:709 (Legal certainty); Case C‐341/05, Laval, ECLI:EU:C:2007:809 (Right to strike).

DAVIES 359