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

Published date01 November 2018
Date01 November 2018
Does the Court of Justice own the Treaties?
Interpretative pluralism as a solution to
Gareth Davies*
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 topdown approach, and also allows for greater diversity and experiment.
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 overconstitutionalisation. 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.
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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
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© 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).
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;
If the problem is overconstitutionalisation, then the answer must be deconstitutionalisation. 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.
However, the idea that this creates a democratic problem rests on the presumption that fixingthe text in some way
fixesits meaningthat 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 pluralismas Richard Stith has called itis a more
constructive and democratic approach than either the existing state of affairs or deconstitutionalisation.
the current dominance of the Court, interpretative pluralism allows change and participation in the shaping of EU pol-
icies. However, unlike deconstitutionalisation, it respects the normative core of European integration, without which
the project becomes incoherent and directionlessmerely 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.
EU law faces many challenges. This article focuses on one: it is insufficiently internalised by the Member States. Thus
states typically engageat bestin 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-
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
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 principleslegal certainty, for
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.
F.W. Scharpf, Deconstitutionalisation and Majority Rule: A Democratic Vision for Europe(2017) 23 European Law Journal, 315.
R. Stith, Securing the Rule of Law through Interpretative Pluralism: An Argument from Comparative Law(2008) 35 Hastings Con-
stitutional Law Quarterly, 401.
L. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press, 2002).
R. Hirschl, Optingout of Global Constitutionalism”’ (2018) 12 Law and Ethics of Human Rights,1.
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 C148/02, Garcia Avello, ECLI:EU:C:2003:539 (Naming of children); Case C
144/04, Mangold, ECLI:EU:C:2005:709 (Legal certainty); Case C341/05, Laval, ECLI:EU:C:2007:809 (Right to strike).

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