The Limits of Constitutional Pluralism: The Case of Low-Instance Member State Courts

Constitutional pluralism has been the dominant narrative among EU legal scholars concerning the relations between the EU and the Member State legal orders. Constitutional pluralists argue that jurisdictional disputes between the European Court of Justice (ECJ) and the apex courts of the Member States should not be finally settled. A final resolution in favour of one or another form of monist conception of the conflicting legal orders would undermine deliberation among the relevant legal actors and decrease the likelihood of sincere engagement with the legal and moral arguments that the other side would regard as hierarchically inferior. The legal actors must instead strive for compatible decisions in terms of outcome, even if the justification for these decisions differs significantly. This paper addresses constitutional pluralism’s failure to provide a theory of how low-instance Member State courts should act when they are called to follow conflicting lines of case law issued by the ECJ and their superior Member State court. The case law of each of these courts would typically be binding for lower-instance Member State courts as a consequence of the hierarchical structure of court systems. In the present case, however, ECJ judgments are binding for the referring court, but the referring court is also bound to follow the case law of that Member State’s constitutional or supreme court, or, where there is a division of court jurisdictions, for example between an administrative, a civil, and a criminal jurisdiction, the case law of its superior specialised court. Both the ECJ and the diverging apex courts of the Member States claim judicial supremacy with regard to the other and over their subordinate Member State courts. Lower-instance courts are both Member State organs and EU organs. The problem is not hypothetical. On the contrary, it has special relevance at the current stage of European integration, in which instances of conflict between the ECJ and Member State courts over jurisdiction are becoming increasingly frequent and their implications more pronounced. Recent developments make a theory of determining the supreme jurisdiction of one court over another with respect to jurisdictional disputes both necessary and likely to influence legal practice, given that the law has not yet settled. I refer to case law from Poland and Romania, as well as to the German government’s response to the, ultimately abandoned, infringement proceedings procedure in light of the German Federal Constitutional Court’s PSPP judgment to substantiate this conclusion. I argue that neither the state monist view of the apex courts nor the European monist view of the ECJ provide a legally determinate answer to what lower-instance courts should do. This legal indeterminacy forces one to consider the conditions whereby the ECJ or an apex court has a stronger claim to normative authority. The alternative to this endeavour, implicit in the constitutional pluralist’s tendency to focus exclusively on substance over authority, is to accept that theory can provide no helpful standard on what lower-instance courts should do.