Republican constitutional pluralism and the European Union: Towards the next generation of fundamental rights protection?

After the democratic revolutions of 1989, the post-communist states adopted the narrative of ‘returning to Europe’ via accession to the European Communities (today: European Union). This equation of the EU with the democratic aspirations has presented EU integration as a benchmark for developing shared constitutional values beyond the state. More than three decades later, this enchantment with the EU integration and the associated harmonizing capacity of EU law as articulated by the Court of Justice through the principles of supremacy and direct effect is on retreat. A key concept embodying the capacity of (EU) law to ‘unite in diversity’, constitutional pluralism, is frequently seen as vulnerable to abuse by illiberal governments such as in Hungary and Poland. Illiberal actors shrink the space for fundamental rights protection even beyond their jurisdictions, particularly vis-à-vis vulnerable individuals requesting refugee in the Schengen territory due to ongoing conflicts and rights violations in their countries of origin. Hence, prominent scholars have instead defended a nascent federal structure in the EU legal space, which, however, remains difficult to achieve in the absence of consensus on fundamental values. The contemporary developments of disunity and differentiation in the EU have further undermined the capacity of EU integration to serve as a model for high standards of rights protection. Against this backdrop, this paper discusses whether and how constitutional pluralism may be redeemed as a flagship invention of EU integration put in service of advancing fundamental rights protection. Firstly, it questions that the heterarchical alterative to sources of law constitutional pluralism offers as opposed to hierarchical readings is more vulnerable to abuse by illiberal actors than the model resting on EU law supremacy. Secondly, departing from republican theory, the paper offers a more nuanced conceptualization of constitutional pluralism that generates a legal space of ‘race to the top’ in fundamental rights standards both at the EU and member state levels. This reading demonstrates the counterintuitive de-differentiating capacity of constitutional pluralism. So conceived, constitutional pluralism may, rather than being a tool in the hands of illiberal actors, become an effective idea for defending democracy understood in harmony with fundamental rights beyond the state. In the third section, the paper invokes examples from the case law of EU member state constitutional courts, which have either embraced or rejected this conceptualization of constitutional pluralism. In contrast to the post-2020 case law of the German Federal Constitutional Court and its (if imperfect) demands for supranational democracy, judgments of the post-communist Visegrad Four constitutional courts (Czechia, Hungary, Poland, Slovakia), albeit with contrasting reasoning, reject constitutional pluralism, and hence invite more differentiation in the EU. On these grounds, the paper concludes by discussing how the meaning of constitutional pluralism may be recaptured from illiberal actors and offer an alternative to its prevailing narrow conceptualizations. This reading generates synergies with advancing fundamental rights protection in and beyond the state that is not restricted to citizenship and offers new avenues for challenging illiberal actors.