Constitutional Pluralism in Times of the Rule of Law Crisis: Susceptible to Abuse?

With the event into ‘a mainstream principle’, constitutional pluralism constitutes a method of accommodating the divergent claims to the legit authority of the European Union (‘EU’) and the Member States. Within the view of some, the speculation is just not solely relevant in instances of constitutional disaster but in addition acts as ‘an antipode to authoritarianism’. Nonetheless, in mild of the controversial Determination of the Constitutional Tribunal of Poland (‘Determination Okay 3/21’) as to the incompatibility of EU legislation and the case legislation of the Court docket of Justice of the EU with the Structure of Poland, a query arises whether or not such an assumption continues to be of relevance. In view of that, the publish goals to replicate on Determination Okay 3/21 and analyse the query: ‘To what extent is the declare of the last word authority of the Structure of Poland, in mild of Determination Okay 3/21, throughout the limits of the normative core of constitutional pluralism?’. Other than the general significance of the inquiry within the context of the rule of legislation disaster, the current Opinion of Advocate Common Spielmann from 11 March 2025, specifically, illustrates why such an evaluation in relation to Determination Okay 3/21, as ‘a part of a wider authorized improvement [in which] a number of constitutional or supreme courts of Member States’ (Case C‑448/23, Opinion of Advocate Common Spielmann, para. 36), inter alia, contest the primacy of EU legislation, deserves a cautious consideration.

The publish, firstly, describes the normative core of constitutional pluralism within the EU with a specific give attention to the worth of the rule of legislation and the precept of judicial independence. Secondly, the publish gives a succinct evaluation of Determination Okay 3/21, a shift from the ‘sympathetic’ method of the Constitutional Tribunal to the questioning of the very existence of the widespread values below Article 2 Treaty on European Union (‘Treaty’). Thirdly, the publish contemplates the recourse to constitutional pluralism within the rule of legislation disaster in addition to the bounds of its normative core in relation to Determination Okay 3/21. The evaluation illustrates that Determination Okay 3/21, as a harmful constitutional battle, connotes not solely the contempt for but in addition the contra legem interpretation of widespread values of the EU. In consequence, the declare of the last word authority of the Structure of Poland, in mild of Determination Okay 3/21, neither is throughout the limits of the normative core of constitutional pluralism nor can it act as a validation for non-compliance with the worth of the rule of legislation.

The Normative Core of Constitutional Pluralism within the EU within the Type of Basic Values

With a set of basic values and a constitutional framework, the EU constitutes ‘a brand new authorized order of worldwide legislation’ (Case 26/62, 12) by which the precept of primacy of EU legislation is of basic significance. Nonetheless, regardless of the Court docket of Justice’s unconditional view of the precept (Case 11/70, para. 3), it stays open to ‘a plurality of conceptions’ of the nationwide constitutional courts. In flip, distinguishable from the speculation of constitutionalism, it’s constitutional pluralism that departs from the normal give attention to the hierarchy of norms and accentuates the power of constitutional programs to accommodate conflicts on the idea of a typical body of reference (see Walker, Kumm, Lawrence). Within the EU, such a typical body of reference, within the opinion of Poiares Maduro, contains a algorithm widespread to the Member States, ‘to which all actors of the European authorized group should commit themselves’. Subsequently, within the view of Bobić, such a algorithm, or the normative core of constitutional pluralism, is the plurality of values below Article 2 Treaty. The values widespread to the Member States not solely ‘function because the normative ultimate of constitutional pluralism, with out leading to an finally monist answer’. As one of many standards for EU membership, the values additionally denote the voluntary dedication of the Member States (Case C-619/18, para. 42).

In view of that, while some authors argue that constitutional pluralism is ‘inherently liable to abuse’ by the Member States with autocratic tendencies, it’s, in essence, its normative core that depicts its inherent incompatibility with authoritarianism. With the normative core of constitutional pluralism within the type of basic values, resembling human dignity, it’s noteworthy that constitutional pluralism acts as ‘an antipode to authoritarianism’, which is neither pluralist nor ‘does […] have human dignity at its normative core’.

The Rule of Legislation and the Precept of Judicial Independence

With respect to the normative core of constitutional pluralism, the aspect of pluralist discourse is of specific significance (see Baquero Cruz, Spieker). While a consensus doesn’t exist as to the exact scope of the rule of legislation within the constitutional sphere of the EU, a consensus is current as to ‘what falls exterior its borders’. The EU Treaties not solely embody plenty of provisions that stipulate the core parts or rules of the worth but in addition present ‘concrete expression’ (Case C-64/16, para. 32) to it. Moreover, it’s the precept of judicial independence, ‘a sine qua non of all different parts of the rule of legislation’, and the popularity of its institutional core within the EU (Case C-896/19,para. 53), which leaves ‘little or no room for pluralist dissonance’. Accordingly, it isn’t the case that the core parts or rules that compose the rule of legislation ‘wouldn’t have any particular substantive content material in EU legislation’ (Case C-157/21, para. 326). The existence of such substantive content material doesn’t, in reverse, inevitably preclude the recourse to constitutional pluralism. As an idea with ‘an autonomous which means throughout the EU authorized system’ (Case C-156/21, Opinion of Advocate Common Campos Sánchez-Bordona, para. 273), the rule of legislation necessitates, for the aim of uniform software, that it’s the Court docket of Justice that shall decide the core parts, or parameters, of the worth, in consideration of the widespread constitutional traditions of the Member States.

In that vein, with the willpower of such parameters, not solely is the brink for the validation of pluralist dissonance notably excessive that it doesn’t enable for ‘essentially the most flagrant violations’ of the rule of legislation. Equally, the publish maintains the view that the recourse to constitutional pluralism is simply permissible insofar because it respects the core parts of the worth. Subsequently, the contempt for and contra legem interpretation of the rule of legislation connote that such an occasion of dissonance is just not throughout the limits of constitutional pluralism’s normative core.

Determination Okay 3/21 OF 7 October 2021

As a end result of the rule of legislation disaster, in Determination Okay 3/21, the Constitutional Tribunal did pronounce that Articles 1, 2, 4(3) and 19(1) Treaty had been inconsistent with the Structure of Poland. Within the view of the Constitutional Tribunal, the EU integration didn’t solely enter a ‘new stage’ with the EU performing ‘exterior of the scope of competences’ however did additionally preclude Poland from functioning as ‘a sovereign and democratic state’. Equally, the Constitutional Tribunal did stipulate that on the idea of the second subparagraph of Article 19(1) Treaty, the nationwide courts might ‘bypass the provisions of the Structure [and] adjudicate on the idea of the provisions which [were] not binding’ (Determination Okay 3/21).

In that respect, it’s noteworthy that it’s, specifically, Article 19(1) Treaty on the idea of which the Court docket of Justice conducts the evaluate of the nationwide reforms of the judiciary (Case C-791/19). With the initiation of the appliance by the Prime Minister, Determination Okay 3/21 not solely constitutes a immediate response to Case C-824/18 of the Court docket of Justice in respect to the appointment process to the Supreme Court docket and its potential to violate Article 19(1) Treaty. One may argue that Determination Okay 3/21 does additionally point out the operationalisation of the Constitutional Tribunal as a political instrument of the Legislation and Justice Celebration (PiS) within the rule of legislation disaster (see Xero Flor w Polsce sp. z o.o. v Poland), and the makes an attempt to alter the authorized state of affairs in its favour exterior of the bounds of the Structure.

Constitutional Pluralism within the Rule of Legislation Disaster

In Determination Okay 3/21, the Constitutional Tribunal did, subsequently, query the very existence of the values below Article 2 Treaty, particularly, the rule of legislation, in mild of the declare of the last word authority of the Structure. Not solely is such a declare opposite to the dedication of Poland to advertise and respect widespread values (Case C-896/19, paras. 61-62). Equally, it additionally constitutes a deviation from the prior case legislation of the Constitutional Tribunal, by which it did intensify that such a set of widespread values would considerably scale back the danger of a constitutional battle between the Structure and the legislation of the EU. The unconventional declare of the last word authority of the Structure by the contempt for the widespread values, in sequence, factors out an inherent incompatibility of Determination Okay 3/21 with the raison d’être of constitutional pluralism. Specifically, the lodging of constitutional conflicts by the widespread body of reference.

In the same vein, additionally it is the ‘misguided interpretations’ of each the Structure and the Treaty that connote that Determination Okay 3/21 is just not throughout the scope of an affordable interpretation of the rule of legislation. While within the view of the Constitutional Tribunal, Article 2 Treaty is inconsistent with the Structure insofar because it confers a competence to evaluate the legality of the method of appointment of the judges on the home courts, it’s noteworthy that the method in itself does increase legit doubts of non-compliance with the rule of legislation (Case C-791/19, para. 108; see Case C‑448/23, Opinion of Advocate Common Spielmann, paras. 96-117). In mild of Bobić’s categorisation of constitutional conflicts, the publish maintains the view that Determination Okay 3/21, in precept, constitutes a harmful constitutional battle, which inevitably precludes the recourse to constitutional pluralism by ‘mutual respect and honest cooperation’.

As a consequence, by advantage of the contempt for and contra legem interpretation of the widespread values, the declare of the last word authority of the Structure in Determination Okay 3/21 is just not throughout the limits of the normative core of constitutional pluralism. Opposite to the view of some (for instance, Kelemen and Pech, Spieker), as a result of operationalisation of the Constitutional Tribunal within the consolidation of energy of the ruling occasion (see Venice Fee’s Opinion on the Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland), it isn’t extremely possible that the substitute of constitutional pluralism with the doctrine of unconditional primacy would reverse the course of rule of legislation backsliding in Poland. In that context, you will need to notice that the recourse to constitutional pluralism has, in truth, strengthened the safety of basic rights and values in the middle of European authorized integration (see Case 11/70).

To conclude, throughout the EU, constitutional pluralism constitutes a basis for the lodging of constitutional conflicts by the widespread body of reference, or the normative core, within the type of widespread values below Article 2 Treaty. Nonetheless, Determination Okay 3/21, as a harmful constitutional battle, connotes not solely the contempt for but in addition the contra legem interpretation of such widespread values. For that purpose, the evaluation, specifically, demonstrates that the declare of the last word authority of the Structure, in mild of Determination Okay 3/21, neither is throughout the limits of the normative core of constitutional pluralism nor can it act as a validation for non-compliance with the rule of legislation.

Natália Racková is a PhD Fellow on the Centre for European, Comparative and Constitutional Authorized Research (CECS) on the College of Copenhagen.