Interpretative Pluralism and the Constitutionalisation of the EU Legal Order

Constitutional pluralism tries to provide a legitimating theoretical frame for stubborn disagreements between the European Court of Justice and national constitutional courts. However, in accepting the legal separateness of constitutions and EU law it offers a depressingly Cold War vision of the European constitutional space. Interpretative pluralism instead conceives of these texts as a composite whole, with the task of courts to read them as such, seeking interpretations of one that do not do violence to the other. The disagreements between courts should not be about which text takes precedence, but about what they mean. The difference in practice is that national constitutional courts should never say that EU law conflicts with their constitutions. Rather, they should read it so that it does not, even if that means disagreeing with an interpretation offered by the European Court of Justice. Normatively this approach has the merit that it encourages national courts to engage more deeply with EU law, a necessary step in the construction of a working and legitimate European legal order. Descriptively, it also corresponds increasingly to what national apex courts actually do.