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The concept of constitutional pluralism as the fundamental

basis for the development of the European Union legal order

Vitalii Gutnyk *

Ivan Bratsuk **

Stepan Burak ***

Antonina Zubareva ****

ABSTRACT

The objective of this article is to analyze the concept of constitutional pluralism as a

methodological basis for the construction of the legal system of the European Union. In

particular, attention is paid to investigating the particularities of the interaction and

operation of the different constitutional legal systems within the legal sphere of the

European Union, studying the constitutional collisions derived from the interaction of

European Union law and the law national of the Member States. Dialectical, comparative

legal, historical, systemic-structural and formal dogmatic methods were used in the

research. The article concluded that the national constitutional courts of the Member

States of the European Union can give priority to their constitutional rules only if those

rules are clear and reflect substantial constitutional obligations. However, in any case, in

order to maintain the coherence of the legislation of the European Union and the national

legislation of the Member States, it is necessary to amend the national Constitutions of the

Member States of the European Union.

KEYWORDS: European Union; law; pluralism; doctrines; courts.

*

Doctor of legal sciences, professor of International Law Department, Ivan Franko National

University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0003-1401-4393 . E-mail:

vitalik_gutnik@ukr.net

**

Сandidate of legal sciences, associate professor of European Law Department, Ivan Franko

National University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0003-0164-7407

***

Assistant of professor of European Law Department, Ivan Franko National University of

Lviv, Ukraine. ORCID: https://orcid.org/0000-0002-5184-0451

****

Сandidate of legal sciences, associate professor of International Law Department, Ivan

Franko National University of Lviv, Ukraine. ORCID: https://orcid.org/0000-0003-3994-2698

Recibido: 31/05/2021

Aceptado: 14/07/2021

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El concepto de pluralismo constitucional como base fundamental

para el desarrollo del orden jurídico de la Unión Europea

RESUMEN

El objetivo de este artículo es analizar el concepto de pluralismo constitucional como base

metodológica para la construcción del ordenamiento jurídico de la Unión Europea. En

particular, se presta atención a la investigación de las particularidades de la interacción y el

funcionamiento de los diferentes ordenamientos jurídicos constitucionales dentro del

ámbito jurídico de la Unión Europea, estudiando las colisiones constitucionales derivadas

de la interacción del derecho de la Unión Europea y el derecho nacional de los Estados

miembros. En la investigación se utilizaron métodos dialécticos, jurídicos comparados,

históricos, sistémicos-estructurales y dogmáticos formales. En el artículo se llegó a la

conclusión de que los tribunales constitucionales nacionales de los Estados miembros de la

Unión Europea pueden dar prioridad a sus normas constitucionales sólo si dichas normas

son claras y reflejan obligaciones constitucionales sustanciales. Sin embargo, en cualquier

caso, para mantener la coherencia de la legislación de la Unión Europea y la legislación

nacional de los Estados miembros, es necesario modificar las Constituciones nacionales de

los Estados miembros de la Unión Europea.

PALABRAS CLAVE: Unión Europea; derecho; pluralismo; doctrinas; tribunales.

Introduction

The active development of integration processes taking place within the

European Union (hereinafter - the EU) leads to further convergence and closer

interaction of national legal systems of member states, which expands the range of legal

relations governed by the EU law. At the present stage of development of legal science,

legal doctrines are becoming increasingly important, thanks to which it is possible to

effectively solve various problems, which sometimes cannot be answered within the

traditional approaches and concepts of international and national law (Gogin et al,

2021). These processes are inherent in the law of the EU, which primarily due to its

specific nature, in fact, challenged traditional approaches to understanding the idea of

law, its legal nature and content. The concept of constitutional pluralism is new means

by which the specifics of interaction and functioning of various constitutional legal

systems within the EU at the supranational level and the national level are studied, as

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well as various conflicts arising from this interaction are eliminated. A key element is

the constitutional courts of the EU member states, which must always ensure a balance

within the EU's pluralistic legal order. Thanks to this concept, the directions of further

development of both the law of the EU and the national law of the EU member states are

delineated.

This article is devoted to analyzing of the concept of constitutional pluralism as a

fundamental basis for the development of the EU legal order. Despite the importance of the

study of constitutional pluralism in the EU law, the existing scientific research is limited

only to some aspects of the subject of this paper.

In this article were solved the following tasks:

–

to define the doctrinal approaches to the content of the concept of constitutional

pluralism of the EU law;

–

to formulate the main internal sources of the concept of pluralism in the EU law;

to find out the specific features of the concept of pluralism through the prism

-

of the relationship between the EU law and the national law of the Member States;

to characterize the influence of the Federal Constitutional Court of Germany on

–

the development of the concept of constitutional pluralism in the EU law;

The study was conducted through the critical analysis of the EU legal doctrine, the

EU legislation, and the EU member states' legislation. Particular attention is paid to the

practice of the Federal Constitutional Court of Germany.

The subjects of the research were norms of the EU law as well as the EU member

states' legislation and practice of national courts. The subject study is the concept of

constitutional pluralism.

1

. Literature review

The concept of constitutional pluralism is reflected in the works of scholars such as

N. MacCormick, G. Shaffer, R. Kwiecien, Jessica C. Lawrence, M. Wilkinson, N. Walker,

J. Weiler, K. Ziegler, M. Maduro, M. Krisch, M. Kumm etc. For example, Jessica C.

Lawrence - considers the concept of constitutional pluralism as a kind of discussion

technique that solves the relationship between the legal orders (Lawrence, 2019). N.

MacCormick considered this concept through the prism of the existence in the legal system

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of the EU law autonomous constitutional legal orders within each of them there is a legal

field that interacts with each other (MacCormick, 1999). It seems interesting to approach

M. Wilkinson, who understands this theory as one that characterizes the development of

post-sovereign European state, and the author emphasizes that in the EU there is a

multilevel constitutional structure formed by voluntary limited sovereignty by members of

the EU (Wilkinson, 2019). N. Krisch considers this concept through the prism of the

activity of national (constitutional) courts of the member states on the interpretation and

application of the EU law because depending on effectively determining which rules to

apply in settlement of disputes and how to establish interaction between different levels of

government (supranational and national) will express constitutional pluralism (Krisch,

2013). Also interesting is the point of view of M. Avbelj who sees the observance of EU

values as the goal of constitutional pluralism, and when an EU member state in the

person of its constitutional courts makes decisions that are contrary to the basic values

of the EU law, then these actions are by no means should be equated with constitutional

pluralism (Avbelj, 2016).

2

. Methodology

In the article were used dialectical, comparative legal, historical, system-structural

and formal dogmatic methods.

The dialectical method gave the opportunity to consider the concept of

constitutional pluralism in relation to other legal concepts. The comparative legal method

was used to compare the understanding of the concept of constitutional pluralism in

different decisions of the Federal Constitutional Court of Germany. The historical method

is used to analyze the genesis of the concept of constitutional pluralism. The system-

structural method made it possible to consider constitutional pluralism as the complex

concept in the law of the European Union. The formal-dogmatic method was used to

interpret the provisions contained in the decisions of the Federal Constitutional Court of

Germany.

3

. Doctrinal approaches to the content of the concept of constitutional

pluralism of the EU law

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Examining the content of legal pluralism in general, we can find the view that this

concept should be considered through the prism of the possibility of coexistence of

different potentially conflicting legal norms within one legal system. Moreover, these

norms will not be mutually exclusive and will, if necessary, be selectively applied due to the

legal mechanisms of the legal system. It is due to legal pluralism that the existing conflict

between legal norms can be overcome, which is expressed and enshrined in legal acts of

different legal forces (Jansen, 2012). At the same time, until recently, when the scope of

international law was expanded by multilateral international treaties, legal pluralism

was viewed solely through the prism of a clear division of monistic national legal orders

and general, but limited in regulatory plan international law, which usually did not

intersect. Thus, in this case, the emphasis is on integrative processes, as fundamental

accumulating factors due to which legal pluralism is actively developing and changing.

This concept essentially brings together different areas of law within the legal system.

In this context, the point of view is actual that “constitutionalism and pluralism are

distinguished ... by the different extent to which [each] formally link[s] the various

spheres of law and politics. While pluralism regards them as separate in their

foundations, global constitutionalism, properly understood, is a monist conception that

integrates those spheres into one” (Shaffer, 2012).

One of the founders of the concept of constitutional pluralism is N. MacCormick

who, studying the functioning of the EU legal system, came to the conclusion that this

theory should be understood as “idea that two autonomous legal and political systems can

interact at a high degree of intensity, making simultaneous claims to ultimate authority,

without one being ubordinated to the other. But conflicts between two systems interacting

in this wayshould be resolved according to prudential judicial politics,or principles, shared

by, orexternal to, both systems” (MacCormick, 1999). Examining this question, the

scholar admits the possibility of the existence within one EU legal system of multiple

legal orders, each of which together with its current constitution is legitimate and

operates within its own sphere and whose main purpose is to prevent the constitutional

supremacy of one legal order over others.

The concept of constitutional pluralism has acquired specific features in EU law and

has become not only a tool for resolving "conflict" situations in EU law, but also an effective

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means of understanding the unique legal nature of EU law as a whole. For example, R.

Kwiecien concludes that from the standpoint of material sources of law, the legal order of

the EU and the national (constitutional) legal orders of the Member States are

complementary sets of legal norms and values, which are expressed and embodied in them.

Therefore, such a relationship can be called "constitutional pluralism", "European legal

pluralism", "multi-center legal system" or "European unwritten social contract", which

will result in the coordination of legal systems (Kwiecien, 2005). Thus, given to

cosideration the growing convergence of the legal systems of the EU Member States, the

relationship between EU supranational law and the national constitutional law of the

Member States is often defined by various concepts, but in general the term pluralism

best reflects this interaction.

In this context, we share the point of view of Jessica C. Lawrence according to

which,

“

constitutional pluralism marks certain conflicts as legitimate despite their lack

of a single source of ‘legality’. It does this by shifting the legitimating function to

some other norm—whether cosmopolitan values, fundamental rights, shared

conflict resolution principles, an alternative constitutional order, or something

else” (Lawrence, 2019).

Considering this concept, it should be noted that among scientists there are different

approaches to its understanding and scope. Thus M. Wilkinson understands it as a theory

that is applied and characterizes development of the post-sovereign European state and

state-system. He emphasizes that the key role in this theory is played by two aspects: “first,

the concept of sovereignty—understood as ultimate political authority—is folded into

constitutional authority, into the constitution itself, and thereby into its authoritative

interpreters, particularly, if not exclusively, constitutional courts”; “second, constitutional

authority is then presented as quasi-federal or compound in nature, a feature of a multi-

layered constitutional system comprising the domestic constitution and a European

constitution (and their respective authoritative interpreters)” (Wilkinson, 2019).

According to the scientist, there is a multilevel constitutional structure in the EU, which

was formed due to the voluntary limited sovereignty of the EU member states, and which is

actively functioning and changing.

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Other scholars use the term "multilevel constitutionalism" to mean the

coexistence of different constitutional bodies within a broader system of government,

none of which ultimately has supremacy, as well as a strict regime of competence that

preserves the autonomy of the respective spheres. In other words, the legal and

constitutional systems of the EU are parallel, in the sense that they coexist in a more or

less horizontal or "hierarchical" relationship (Walker, 2002). At the same time, they are

intertwined, but each of them has its own independent legal and constitutional zone

outside the sphere of overlap.

At the same time, it should be noted that the Lisbon Treaty is also not a form of

"

supreme law", which is endowed with higher legal force in relation to national

constitutions, they rather coexist in parallel planes. However, in this context, the

position of a number of authors is interesting, who believe that the amount of freedom

of action of the EU due to the Lisbon Treaty has increased so much that in some policy

areas the European Union has a form typical of federal states. Whereas internal

decision-making and the appointment of procedures correspond to the structure of an

international organization (Kellenberger, 2003; Weiler, 2001). EU law already has

supreme legal force because it has supremacy over any contradictory rules of national

law, but this form of supremacy is only pragmatic.

J. Weiler shares this position and views the EU legal order through the prism of

European integration, which already exists as a constitutional unity and does not need a

new constitution, which would be enshrined in the traditional constitutional way,

because it (integration) meets this purpose (Weiler, 1996). This constitutional unity of

the EU is based on the key principles established by the European Court of Justice for

the relationship between EU law and national law (direct action and the rule of law). In

this case, K. Ziegler notes that constitutionalism in the dimension between the EU and

its member states is characterized primarily by supranational rule-making of the Court

of Justice through the prism of its mandatory jurisdiction and respect for rights and

freedoms both in the international court and through direct action its decisions in the

national courts of the Member States (Ziegler, 2013). Thus, EU constitutionalism is the

normative legitimacy of the EU legal order, which ensures its legitimacy and is the

driving force in its development (Avbelj, 2008).

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Quite interesting is the position of M. Maduro, who states that:

“

We can identify four main sources of internal pluralism. First, there is a

plurality of constitutional sources (both European and national) which have

fed the EU constitutional framework and its general principles of law,

particularly as developed in the jurisprudence ofthe Court of Justice. Second,

the acceptance of the supremacy of EU rules over national constitutional

rules has not been unconditional, if not even, at times, resisted by national

constitutional courts. This confers to EU law a kind of contested or

negotiated normative authority. Third, there is an emergence of new forms of

power that challenges the traditional private/public distinction and the

different mechanisms of accountability associated to them. Such pluralism in

the forms of power challenges, in turn, the traditional legal categories upon

which EU rules have been framed. Fourth, the European Union is also

dominated by a form of political pluralism that can assume a rather radical

form since the conflicting political claims are often supported by

corresponding claims of polity authority” (Maduro, 2007).

In general, the author takes the view that the main purpose of constitutional

pluralism is to guarantee the integrity and coherence of the EU legal order. At the same

time, he identifies certain mandatory requirements set by constitutional pluralism to

achieve the above goal.

“

(

The first, requirement of EU constitutional pluralism is that ‘any legal order

national or European) must respect the identityof the other legal orders’, in

particular via the ‘recognition and adjustment of each legal order to the

plurality of equally legitimate claims of authority made by the other legal

orders’. The second requirement is that discourse among constitutional actors

must ‘take place in such a way as to promote the broadest participation

possible’. Third, the various actors in the European system must ‘share the

same commitment to a coherent legal order’, adjusting their claims to

authority in order to ensure consistency andvertical and horizontal

coherence. Fourth, national courts ought to justify their decisions on

‘

universalisable’ grounds that ‘could be applied by any other national court in

similar situations’. Fifth and finally, the principle of ‘institutional choice’

requiresthatconstitutional pluralism reject a singular focus on courts and

judgments, and instead recognize the actions of a broader range of

constitutional actors. So long as these requirements are fulfilled, it will

remain ‘possible to have a coherent legal order in acontext of competing

determinations of the law’ – conflicts over the ultimate locus of jurisdictional

authority need not be resolved” (Maduro, 2003).

It should also be noted that the concept of constitutional pluralism in the EU was

formed primarily in response to a number of cases in which the national constitutional

courts of EU member states sought to determine whether EU law is compatible with a

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country's national constitutional order. At the same time, there have often been

attempts to make decisions that would call into question the automatic rule of EU law,

thereby challenging its primacy. Thus, the constitutional courts of the EU Member

States have questioned the rule of European Union law over national constitutional

norms, on the grounds that they are the guarantee of national human rights standards

and democratic principles. In this activity, how effectively they will determine which

norms (EU law or national constitutional provisions) to apply in resolving a dispute and

how to establish the interaction of different levels of government (supranational and

national) and will express constitutional pluralism. In this case, we share the view that,

“

we will find properly “constitutional” pluralism when rights are at issue and

when rights-protecting courts (especially European ones) are the main actors.

This does indeed fit most cases typically seen as expressions of pluralism in

action, and it is plausible even if one does not think that pluralism is all about

rights. Court action is often triggered by rights claims, and unlike most other

political actors, courts need to give a principled account of what they do, so

they need to clarify the relation of different levels of authority. It is through

this clarification—and the conflicting accounts of different courts—that we

can best gauge the presence of a pluralist order” (Krisch, 2013).

Quite interesting is the point of view of M. Kumm, who proves the importance of

pluralism, exploring the features and specifics of the relationship between the EU and

national law of the Member States (Kumm, 1999). In particular, examining the

development of pluralism in the EU legal order, the author identifies two possible

trends in its development. The first is that constitutional courts will be able to repeal

EU law on the basis of their specific constitutional norms and principles. According to

another trend, Member States will very rarely be able to disregard EU law and do so

only for positive reasons. The author is of the opinion that the second scenario is more

plausible and constructive, and it is thanks to it that the effective interaction of EU law

and national law of the Member States will take place over a long period of time. In this

case, national courts will act as a driving, constructive force that will operate within the

EU legal order and whose main goal will be to increase the level of democracy in the

decision-making process at the level of the European Union.

It is national courts that will give the Court of Justice of EU an incentive to pay

more attention to issues of legislative jurisdiction and to be more careful in analyzing its

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fundamental rights (Kumm, 2005). It should be noted, however, that national

constitutional courts are likely to give priority to their constitutional provisions only if

such provisions are clear and genuinely specific and reflect their essential constitutional

obligations. However, in any case, in order to maintain the coherence of EU law and the

national law of the Member States, it is necessary to amend the national constitutions or

to ensure the withdrawal of such Member States from the EU if they refuse to do so.

However, it should be noted that the key role in this case will be played by how

the basic postulates of this theory are implemented in practice, in the context of the

decision of the national constitutional courts of the Member States in the spirit of

constitutional pluralism. Because they may often be tempted to make a decision that

would contradict not only the basic principles of this theory but also EU law as a whole.

Therefore, it is worth supporting the view that “pluralist insistence on the respect for

national constitutional autonomy, for the national pluralist-self, cannot be misused or

even abused to legitimate national measures corrosive of the EU fundamental values

under the guise of pluralism” (Avbelj, 2016). In other words, when an EU Member State,

represented by its constitutional courts, makes decisions that are contrary to the

fundamental values of the EU law, then these actions should in no way be equated with

constitutional pluralism. In this context, we fully share the point of view of Jessica C.

Lawrence who examining the normative content of constitutional pluralism in the EU

concludes that

“

its normative content is far more determinate than it appears: it is not only a

commitment to an ‘ever closer union’ or ‘democratic values’ or ‘respect for

diversity’ or any other abstract concept that makes behavior an acceptable

instance of constitutional pluralism – it is also necessary to be a ‘normal’,

‘

well-ordered’ (Western) European state that acts within acceptable bounds.

These values may be historically, geographically, and politically contingent,

may shift over time, and may not be applied with equal fervor to all actors in

the system, but they are most certainly present” (Lawrence, 2019).

4

. The influence of the Federal Constitutional Court of Germany on the

development of the concept of constitutional pluralism in EU law

Among the decisions of the Constitutional Courts of the EU member states, the

most important for analysis are the decisions of the Federal Constitutional Court (FCC)

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of Germany, which in some cases were ambiguous and sometimes not fully fit into the

concept of constitutional pluralism. First of all, the FCC tried to retain the power to

review EU law regarding its compatibility with fundamental rights and with the

division of powers between the European and national levels of government. A clear

example of this position was the case of Solange I, in which the Court took a principled

position on the application of "secondary" EU law in accordance with fundamental

human rights in Germany (Diete, 1998). The Federal Constitutional Court of Germany,

recognizing the exclusive right of the Court of Justice to decide on the validity and

interpretation of EU law, noted that the Court of Justice of the EU cannot rule if

existing EU law is incompatible with the national Constitution. The FCC has the

exclusive competence to decide that a norm of EU law (if it violates the Constitution)

cannot be applied by the courts. And the effect of "secondary" EU law in the Federal

Republic is subject to review by the Federal Constitutional Court, in addition to any

review of fundamental rights by the Court of Justice of the EU. This practice will be

applied “until the integration process reaches the adoption in EU law of the list of

fundamental rights adopted by the parliament, which will correspond to the list of

fundamental rights contained in the Constitution” (BVerfG decision: Internationale

Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel, 1974).

Somewhat inconsistent with the first decision was the FCC's decision in Solange

II, in which the court stated that it would no longer monitor the compatibility of

Community law with Germany's fundamental rights, so in particular in this case the

FCC emphasized that as long as the European Community, and in particular the Court

of Justice, does not ensure effective protection of fundamental human rights under

Community acts, which essentially provide for equal protection of fundamental rights in

the German Constitution, the Federal Constitutional Court will not exercise

jurisdiction and decide on the application of Community by-laws… and will no longer

review such legislation in accordance with the fundamental rights standards enshrined

in the Constitution, nor can an action be brought before a court for that purpose

(

BVerfG decision: Solange II, 1986). In addition, the Court held that such a decision had

been reached on the belief in fundamental rights, in particular those protected by the

European Court of Justice. Thus, it seems that the FCC has finally recognized the

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protection of fundamental rights at Community level as sufficient, and theoretically

remains interested in asserting its claims for due process, thus recognizing the doctrine

of the rule of EU law, including over German constitutional norms. This decision meant,

on the one hand, the rejection of the position enshrined in the Solange I and, on the other

hand, reaffirmed the Constitutional Court's requirement that the German Constitution

be superior to EU law, thereby strengthening the court's authority to consider the

compatibility of the EU law and the German Constitution, especially in cases of serious

violations of fundamental human rights (Winkelmann, 1994).

Another important case, which examined the constitutional relationship between

EU law and German law, was the Maastricht case, which challenged the constitutionality

of state ratification of the EU Treaty. After considering the case, the FCC noted that

ratification was compatible with the Constitution. However, it was stressed that the

FCC would continue to consider the issue of compliance of EU law with the norms of

the Constitution of Germany. Also in this case, the FCC raised a number of legal issues

related to the binding force and applicability of EU law in Germany. In particular, the

court argued that the Member States still remain so-called “owners of agreements”

(

Herren der Verträge) and that the binding force of EU law depends primarily on

German national law. Thus, the EU does not have the power to decide where the limits

of EU power end and to determine its own competence. The Court also stated that it

would apply its jurisdiction to implement the rules of "secondary" EU law, and thus

verify their compliance with fundamental rights regarding "cooperation" with the

European Court of Justice (BVerfG decision: In Re Maastricht Treaty, 1993). In other

words, the Court noted that the force of EU law in Germany follows from the provisions

of the German Constitution, which approved the delegation of powers to international

organizations. It was also criticized the extension of the EU's competence through

mechanisms such as flexibility, noting that if the competence were expanded, it could

cease to be legally binding in Germany. In this case, it can be concluded that the German

FCC intended to fully restore its judicial review, which it refused on the basis of the

Solange II decision, which once again confirms how difficult and important was the issue

of recognizing the supremacy of EU law over the Constitution in Germany.

Consequently, in the present case, the Constitutional Court again departed from the

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provisions of the Solange II decision, stating that permanent review of the jurisdiction of

the court was imposed due to the lack of a specific mechanism for the protection of

fundamental human rights within the Community (Horn, 1995). After this decision, it

became clear that the German court and the Court of Justice of the EU took different

positions on the understanding of the relationship between European and national legal

systems. Their main differences also presented the possibility of legal confrontation,

which could give rise to a European constitutional crisis.

In its next case, the Bananenmarktordnung, the FCC reaffirmed only its power to

review EU law only in certain, defined circumstances, both procedurally and in

substance. The Court reaffirmed its right to limited, conditional control over the

procedure of a legal issue and a constitutional complaint concerning EU law and found

that it could not determine the compatibility of EU provisions and fundamental rights

enshrined in the German Constitution. For this reason, any proposal for

constitutionality should be rejected as unacceptable if it lacks a justification for

lowering the standard of protection of human rights (especially in the case-law of the

Court of Justice of the EU) in relation to the required level of protection (BVerfG

decision: Bananenmarktordnung, 2000). In other words, the FCC does not have general

jurisdiction over secondary law in the context of German fundamental rights, because

the protection of rights is carried out at the Union level.

Finally, in the case of the Bundesverfassungsgericht, the FCC assessed the

compliance of the Lisbon Treaty with the provisions of the German Constitution and

concluded that it had no grounds for disapproving of the Lisbon Treaty. However, the

FCC proposed certain restrictions on Germany’s future integration by committing itself

to clearly define the basic powers of the state, which cannot (or only under exceptional

conditions) be transferred to the European Union and must always be at the national

level. In particular, it was noted that there should always be “a guarantee that excludes

the transfer of the identity of the constitutional order of Germany, even in the context of

restrictions on the revision of the Constitution by the legislature at the supranational

level, which in turn guarantees the sovereign status of the state”. The Constitution

requires that nation-states remain the owners of treaties at all times. In functional

terms, the source of power in the EU is the people of Europe with the democratic

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constitutions of their states. The supranationality of the EU will develop rapidly in the

political aspect, but it will always be limited

Bundesverfassungsgericht, 2009).

(BVerfG decision:

Analyzing this decision of the FCC, we share the view of A. Steinbach that the

decision of the FCC on the Lisbon Treaty provides a clearer form of the category of

"

important areas of responsibility" that states must retain. The reason for this

concretization is the reaction to the constant expansion of the EU's powers and the

need to define sufficient space for the political formation of economic, cultural and

social living conditions by member states, which should not disappear in the member

states due to European unification based on the union sovereign states. This applies to

areas that shape the living conditions of citizens, especially private space, their own

responsibility and political and social security protected by fundamental rights, as well

as political decisions that are particularly dependent on prior understanding of culture,

history and language (Steinbach, 2010). The gradual and growing transfer of national

powers to EU bodies forced the FCC to outline for the first time in this decision those

basic state powers that cannot be transferred to the EU. However, the criteria used by

the FCC to single them out cannot claim to be universal in forming a set of inalienable

sovereign rights throughout the European Union. For example, due to cultural diversity,

multilingualism is not seen in other EU member states as an obstacle to the functioning

of their legal order.

Hence, it can be concluded that the German Constitutional Court has for a long

time tried to preserve the right to constitutional review of EU legal acts on their

constitutionality, which in turn manifested itself in a number of decisions we analyzed

above. However, it should be noted that no EU norm was declared optional and not

applicable in Germany on the basis of ultra vires, during such a constitutional review by

the Constitutional Court of Germany. Thus, the FCC never risked creating an open

conflict with the European Union and the Court of Justice, which in general fully

corresponds to the concept of constitutional pluralism. There is close cooperation

between the constitutional courts and the European Court, which is based on the

principles of mutual respect and the guarantee of national identity. At the same time,

this cooperation, which is expressed in close dialogue and interaction between the

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Court of Justice and the national courts of the Member States, essentially contrib utes to

the development of a pluralistic European legal order as a whole (Pollicino, 2010).

In general, constitutional pluralism is a theory that was created to clarify the

issue of the hidden confrontation between EU law and the national (constitutional) law

of the member states. Following the adoption of the Lisbon Treaty, the EU legal order

can be described as constitutional pluralism, in which the legal systems of the EU and

the Member States define parallel and overlapping areas. In this context, the position of

some authors is noteworthy, who note that the reorganization of the Treaty establishing

a Constitution for Europe (TCE) into the Lisbon Treaty is a transition from one way of

understanding these relations - constitutional federalism, to another - constitutional

pluralism (Avbelj, 2008; Cruz, 2008). Thus, the legal order in the EU after the entry into

force of the Lisbon Treaty is very close to the principles of constitutional pluralism. M.

Claes notes that most parts of the Constitutional Treaty have been selected and found

their place in the Lisbon Treaty. But to say that there are no changes at all is like saying

that the pieces of a broken vase, if glued together, will have a preliminary appearance.

The difference, however, is not just between the two vases. In addition, the fact that the

vase was first broken and then glued together is reminiscent of this event (Claes, 2008).

Conclusions

Thus, the content of constitutional pluralism as a concept of the functioning of

the EU legal order, which was formed to resolve the issue of hidden confrontation

between EU law and national (constitutional) law of member states is that the

phenomenon of multiple constitutional sources that creating the conditions for

potential constitutional conflicts between different legal systems need to be decided

only in conditions of equality. At the same time, the EU legal order is viewed through

the prism of European integration, which already exists as a constitutional unity and

does not need a new constitution, which would be enshrined in the traditional

constitutional way. This constitutional unity of the EU is based on the principles

established by the Court of Justice of the EU for the relationship between EU law and

the national law of the Member States (direct action and the rule of EU law).

According to this concept, the national constitutional courts of the EU Member

States can give priority to their constitutional norms only if such norms are clear and

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reflect substantial constitutional obligations. However, in any case, in order to

maintain the coherence of EU law and the national law of the Member States, it is

necessary to amend the national constitutions of the EU Member States. And although

the Constitutional Courts are competent to exercise de facto some control over the

rules of EU law, because otherwise the national constitutional norms will be in danger

of disappearing and being completely replaced by the rules of EU law. However, they

are obliged to interpret domestic law as close as possible to EU law, and in case of

conflicts to terminate certain national constitutional norms.

References

Avbelj, M. (2016). Pluralism and Systemic Defiance in the EU. In: A. Jakab and D. Kochenov

(

eds). The Enforcement of EU Law and Values. Oxford: Oxford University Press.

DOI:10.1093/acprof:oso/9780198746560.003.0004

Avbelj, M. & Komarek, J. (2008). Four Visions of Constitutional Pluralism. Symposium

Transcript. European Journal of Legal Studies, 2 (1), 325–370.

Avbelj, M. (2008). Questioning EU Constitutionalisms. German Law Journal, 9 (1), 1-26.

Retrieved from: https://ssrn.com/abstract=1113498

BVerfG from:

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2000/06/ls200

0607_2bvl000197en.html

decision:

Bananenmarktordnung.

(2000).

Retrieved

0

BVerfG

decision:

Bundesverfassungsgericht.

(2009).

Retrieved

from:

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es200

0630_2bve000208en.html

9

BVerfG decision: Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für

Getreide und Futtermittel. (1974). Retrieved from: https://eur-lex.europa.eu/legal-

content/DE/TXT/PDF/?uri=CELEX:61970CJ0011&from=EN

BVerfG decision: In Re Maastricht Treaty (1993). Retrieved from: https://iow.eui.eu/wp-

content/uploads/sites/18/2013/04/06-Von-Bogdandy-German-Federal-Constitutional-

Court.pdf

BVerfG from:

decision:

Solange

II

(1986).

Retrieved

https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=572

Claes, M. & Eijsbouts, W.T. (2008). The Difference. European Constitutional Law Review, 4 (1),

-19. DOI: https://doi.org/10.1017/S1574019608000011

1

3

76

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 12 N° 34, 2021

Vitalii Gutnyk et al. /// The concept of constitutional pluralism as the fundamental basis … 361-378

DOI: http://dx.doi.org/10.46925//rdluz.34.21

Cruz, B.J. (2008). The Legacy of the Maastricht-Urteil and the Pluralist Movement.

European Law Journal, 14 (4), 389–422. DOI: https://doi.org/10.1111/j.1468-0386.2008.00419.x

Dieter H. S. (1998). Deutsches Verfassungsrecht und Europäische Integration, 157–207. In:

P-C. Muller-Graff und E. Riedel (Hg.), Gemeinsames Verfassungsrecht in der Europäischen Union.

Baden-Baden.

Gogin, A. A., Fedorova, A. N., Vagapov, R. F., & Sergeev, A. V. (2021). Austrian and Russian

constitutionalism: comprehensive analysis. Amazonia Investiga, 10(41), 121-130.

https://doi.org/10.34069/AI/2021.41.05.12

Horn H.-D. (1995). Grundrechtsschutz in Deutschland – Die Hoheitsgewalt der

Europäischen Gemeinschaften und die Grundrechte des Grundgesetzes nach dem

Maastricht-Urteil des Bundesverfassungsgerichts. Deutsches Verwaltungsblatt DVBL, 89–96.

Lawrence, J.C. (2019). Constitutional Pluralism’s Unspoken Normative Core. Cambridge

Yearbook of European Legal Studies, 21, 24–40. DOI: https://doi.org/10.1017/cel.2019.12

Kellenberger J. (2003). Federalism in Foreign Relations, 189-194. In: R. Blindenbacher and

A. Koller (eds.). Federalism in a Changing World: Learning from each other. McGill-Queen's

University Press.

Krisch, N. (2013). Constitutionalism and pluralism:

A reply to Alec Stone

Sweet. International Journal of Constitutional Law, ·11 (2), 501–505. DOI:

https://doi.org/10.1093/icon/mot010

Kumm, M. (2005). The Jurisprudence of Constitutional Conflict: Constitutional Supremacy

in Europe before and after the Constitutional Treaty. European Law Journal. 11(3), 291-292.

DOI: https://doi.org/10.1111/j.1468-0386.2005.00260.x

Kumm, M. (1999). Who is the Final Arbiter of Constitutionality in Europe?: Three

Conceptions of the Relationship between the German Federal Constitutional Court and

the European Court of Justice. Common Market Law Review, 36, 351–386. Retrieved from:

https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/36.2/202713

Kwiecien, R. (2005). The Primacy of European Union Law Over National Law Under the

Constitutional

Treaty.

German

Law

Journal,

6

(11).

1479-1495.

DOI:

https://doi.org/10.1007/978-3-540-37721-4_5

MacCormick, N. (1999). Questioning Sovereignty: Law, State, and Nation in the European

Commonwealth. Oxford: Oxford University Press. DOI:

https://doi.org/10.1093/acprof:oso/9780198268765.001.0001

Maduro, M.P. (2007). Interpreting European Law: Judicial Adjudication in a Context of

Constitutional Pluralism. European Journal of Legal Studies, 1 (2), 1-21.

Maduro, M.P. (2003) Contrapunctual Law: Europe’s Constitutional Pluralism in Action’,

5

26-528. In: N. Walker (ed), Sovereignty in Transition. Oxford: Hart Publishing.

3

77

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 12 N° 34, 2021

Vitalii Gutnyk et al. /// The concept of constitutional pluralism as the fundamental basis … 361-378

DOI: http://dx.doi.org/10.46925//rdluz.34.21

Jansen, N. (2012). Legal Pluralism in Europe - National Laws, European Legislation, and

Non-Legislative

Codifications.

Legal

Pluralism.

Retrieved

from:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1840356

Pollicino, O. (2010). The New Relationship between National and the European Courts

after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential

Supranational Law? Yearbook of European Law, 29 (1), 65–111. DOI:

https://doi.org/10.1093/yel/29.1.65

Shaffer, G. (2012). A Transnational Take on Krisch’s Pluralist Postnational Law. European

Journal of International Law, 23 (2), 565–582, DOI: https://doi.org/10.1093/ejil/chs029

Steinbach, A. (2010). The Lisbon Judgment of the German Federal Constitutional Court –

New Guidance on the Limits of European Integration? German Law Journal, 11(4), 367-390.

DOI:10.1017/S2071832200018587

Walker, N. (2002). The Idea of Constitutional Pluralism. The Modern Law Review, 65, 317-

3

59. DOI: https://doi.org/10.1111/1468-2230.00383

Weiler, J. (2001). Federalism Without Constitutionalism: Europe's Sonderweg: 54–72. In:

T. Kalypso Nicolaidis and Robert Howse. The Federal Vision: Legitimacy and Levels of Governance

in the United Statse and the Europian Union, Oxford Universety Press.

Weiler, J. H. (1996). European neo-constitutionalism: in search of foundations for the

European

constitutional

order.

Political

Studies,

44,

517–533.

DOI:

https://doi.org/10.1111/j.1467-9248.1996.tb00598.x

Wilkinson, M. (2019). Beyond the Post-Sovereign

State?: The Past, Present,

and Future of Constitutional Pluralism. Cambridge Yearbook of European Legal Studies, 21, 6 – 23.

DOI: https://doi.org/10.1017/cel.2019.9

Winkelmann I. (1994). Das Maastricht-Urteil des Bundesverfassungsgerichts. Vom 12.

Oktober 1993. In: Winkelmann, Ingo (Hrsg.). Dokumentation der Verfahrens mit Einführung.

Tübinger Schriften zum Staats- und Verwaltungsrecht Band 25. Berlin: Duncker & Humblot.

Ziegler, K. (2013). International and EU law: between asymmetrical constitytionalization

and fragmentation. Legal Journal “Law of Ukraine”, 3, 5 -12

3

78