Constitutional Pluralism: In Praise of Political Compromises

In the last decade, there have been numerous conflicts over jurisdictional claims in the European context. From Ajos to Landtova, from PSPP to K 3/21, national constitutional courts and the European Court of Justice clashed with varying degrees of intensity over the question of ultimate authority. Undoubtedly, these claims led to a de facto pluralism and conflict of real and much-wanted constitutional orders. Should these parallel universes somehow be reconciled, or is the existence of constitutional pluralism itself a desirable phenomenon that guarantees the survival of the EU? Drawing on the theoretical tenets of radical pluralism, on the one hand, and political realism, on the other, this paper argues normatively that political compromise rather than adversarial legalism has always been and should continue to be the right solution to the puzzle of European constitutionalism. While compromises between national political leaders and the involvement of national governments in judicially intractable conflicts over the supremacy of EU law have always been part of the DNA of the European integration process, proponents of both full parliamentarization or judicialization of European politics want to diminish the role of the European Council and political compromises in European decision-making processes. By contrast, this paper not only emphasizes that the compromises were crucial to the survival of the EU integration process, but also makes normative arguments for maintaining or strengthening the role of the European Council and national governments in conflict resolution – even at the expense of the ECJ and national constitutional courts. By focusing on the Hungarian case, we will show, first, how the Hungarian Constitutional Court, unlike the Polish Constitutional Tribunal, tried to avoid direct and open conflict with the ECJ on EU law supremacy after 2010, thus keeping the door open for political solutions. Second, we will outline how the conditionality mechanism forced the Hungarian government to make substantial concessions in rule of law issues. While legal scholars and scholactivist are pushing for more legal and/or financial sanctions against the Orbán government, from the perspective of political realism, the only way forward is to strengthen the role of the European Council. The analysis of the Hungarian case has general implications for the pluralist European constitutional settlement and, consequently, for the institutional reform of the ECJ. Existing proposals for a Kompetenz-Kompetenz court with a mixed chamber, the introduction of a reverse preliminary ruling procedure, or the granting of the exclusive right to initiate a preliminary ruling procedure to the national high courts are rather pseudo-solutions and conceal the fact that serious political and constitutional issues can only be resolved by the Chefs. While mechanisms that compromise with populist leaders seem highly suspect to scholars who actively want to promote the rule of law situation in Hungary, all radical proposals that try to bypass high politics and the European Council disregard the political constraints of the European cooperation. Chefsache can only be decided by the Chefs’ compromises, otherwise the danger of European disintegration will increase.