An Order of Deferential Monism: Why the Bundesverfassungsgericht’s PSPP Ruling Merely Restates the Limits of the EU Legal System

Last year certainly was tumultuous, with ‘unprecedented times’ being but one of the many ways to describe it. For observers of EU law, a similar observation can be made regarding the Bundesverfassungsgericht’s historic judgment in May, which, for the first time in its history, overruled a CJEU judgment. Indeed, the extensive discussion of the judgment illustrates its theoretical and practical impact quite clearly. Specifically, Maduro noted back in May that the German court’s ruling will be of great importance to the principle of supremacy, the CJEU’s contention that it is the final arbiter and instance to decide on the meaning and interpretation of EU law. It is this claim that I intend to examine in further detail in this post.

It is well known that the doctrine as espoused by the CJEU in more absolute terms has never been uncontested by the very subjects EU treaties are derived from: virtually all national constitutional courts bar potentially Estonia and the Netherlands have always argued that EU law, being derived from international treaties, only has validity due to authorisation within domestic constitutional law, and that it is ultimately for constitutional courts to interpret EU law’s meaning and force and relation with national norms. Given these rival supremacy claims, the question is raised whether the ruling’s impact on the doctrine is really of that much weight, providing reason to consider the strength of the various supremacy claims. A good framework to do so is by reference to i. the posited law as laid out within the EU and national legal systems respectively, and ii. the extent to which these claims are evidenced in the institutional compliance and application of EU law.

With regards to the first reference point, both CJEU and national supremacy claims are grounded in positive law and receive legal validity from their respective system, making the claims not differing much in strength under this head. However, the claims differ in strength applying the second criterion which entails the examination of institutional compliance and application, as the relevant actors would primarily seem to be national judicial bodies. This institutional dimension would certainly favour the more limited and conditional notions of EU law’s supremacy given national courts have not only retained final authority on how EU law interacts with national norms, but also exercised it in exceptional cases.

For instance, the Czech Constitutional Court in 2012 declared the CJEU judgment in Landtová ultra vires, a case which had concerned the paying of Slovak pensions to its citizens. Similarly, the Danish Supreme Court refused to disapply national law found in breach of EU law in Ajos on the basis that the Danish parliament had not afforded the court the power to do so, contradicting the CJEU judgment in Simmenthal. Though the German court has always been more active in delinieating the limitations of EU law, this would indicate that the Bundesverfassungsgericht’s ruling is not fully revolutionary in either conceptual or practical terms: it is not the only court which both made a rival supremacy claim and also exercised authority accordingly. It is arguably only revolutionary in the sense that the imminent outcome, affecting EU-wide monetary policy, could have been more potent and lead to the ‘judicial Armageddon’ and domino-effect discussed by Arthur Dyevre back when the Landtová judgment was initially passed.

Given that the supremacy claim as espoused by the CJEU has always been limited by national courts, the question is raised what theory can more descriptively make sense both of the CJEU’s supremacy claim as well as the common insistence of national courts that this claim is conditional, and in some cases even national court’s outright refusal to follow EU law as in the focus case of this article. Constitutional pluralists such as MacCormick argue that the EU and Member States’ legal orders are interacting systems, without a clear hierarchy or subordination.[1] Here, it is ultimately for the CJEU to interpret the scope of meaning of EU law, and for the national courts to determine the way in which EU law interacts within the national legal system, both constantly interacting with one another in a form of dialogue that ensure EU law avoids clashing with national, especially national constitutional law. Under this view, the EU does not give rise to a clear hierarchy in favour of EU law and the CJEU, where there is a certain ‘all-purpose subordination of member state law to community law’. Instead, constitutional pluralism views the EU order as one of competing constitutional claims by both the EU and the national member states, horizontally rather than vertically.

The theory provides a certain appeal as it looks beyond the rival and irreconcilable supremacy claims by offering an account of the relationship between the EU legal order and national legal systems that prima facie seems grounded in practice: a non-hierarchical relationship could be found in the interactive, though at times subtle forms of dialogue that have arguably emerged between the CJEU and national constitutional courts. A prominent example of this interactive and cooperative dialogue can be found in the development of fundamental rights protection between the Solange I and II cases: the CJEU, relying on the ever so ambiguous ‘general principles’ of EU law seemingly developed EU fundamental rights protection in order to avoid further tension with the German constitutional court, albeit with both courts continuing to insist on their supremacy claims.

Whilst these cases might prima facie support the idea of constitutional pluralism and seem to descriptively capture a lot of European constitutional practice, it would be too simplistic to rely on these as evidence for a heterarchical relationship between national courts’ and the CJEU’s supremacy claims. This is because, as Culver and Giudice point out, MacCormick does not ‘question the truth or justifiability of the rival claims of supremacy’, which arguably results in an unwarranted gap in his examination. Crucially, constitutional pluralism does not adequately explain the existence of cases in which the CJEU and national courts are not co-operative but result in an outright clash of norms. This was witnessed in Ajos, Landtová, and is now further underlined by PSPP. Indeed, MacCormick’s theory would only fully work if the case law exhibited mere retainment of final authority by national courts but not actual exercise of it. Constitutional pluralism simply jumps too fast from the mostly interactive nature of the EU and national legal orders relationship to an overall conclusion about this relationships’ hierarchical structure, ignoring cases such as Ajos, Landtová and most crucially the PSPP ruling from May 2020.

Even without evaluating these cases’ reasoning and strength, they nonetheless illustrate quite well how, unlike national legal systems, the EU ‘appears to lack the sort of systematic unity via identification of core institutions responsible for maintenance of comprehensive and supreme authority of the system’. EU law’s full reception thus depends ‘on its incorporation into the constitutional orders of the Member States and its affirmation by their supremacy courts’, which would be in line with the orthodox application of public international law principles frequently reiterated by national constitutional courts.

There is no such issue with regards to the validity of national legal norms: should national courts refuse to apply EU law or the precise interpretation of the CJEU, the national legal system and its enforcement continue to stay intact and is more likely to be followed. What this means in practice is illustrated in the response of the German government to the ruling in PSPP: Germany’s Vice-Chancellor immediately stated that the German government would adhere to the FCC ruling and seek to acquire relevant documents from the Bundesbank assessing the proportionality of the programme.

Contrastingly, the CJEU cannot meet its purpose independently from national courts, as its claim to supremacy would, in the absence of institutional compliance, amount to nothing more than a claim. Lacking substantive enforcement within the Member States’ domestic spheres, the only thing that results from such clashes would be, at best, breaches of a Member States’ international law obligations, with any imposition of e.g. infringement proceedings under Article 258 TFEU not necessarily having any bearing under domestic law. Appreciation of this dependence can be found in the fact that infringement proceedings have usually remained a mere threat out of fear they may lead to further frictions (e.g. after PSPP), as well as in the very examples of ‘constitutional dialogue’ used to evidence constitutional pluralism: interactive dialogue as with EU law’s fundamental rights development is arguably reflective of the reliance of the CJEU on national courts. Indeed, PSPP would be the best and most recent example where this interactive dialogue blatantly failed, with the CJEU dismissing of the German court’s constitutional concerns with an arguably unwarranted ease. Overall, MacCormick is incorrect in stating that the Community’s legal order is ‘neither conditional upon the validity of any particular state’s constitution, nor upon the sum of the conditions that the states might impose’.

One might contend that the above cases are very much the exception to the rule and that overall the CJEU’s final authority is respected. However, this still does not lead to the conclusions constitutional pluralists make as their descriptive account is nonetheless incomplete if it leaves out these exceptional cases. Otherwise, their conceptions might be mainly guided by their view on what the EU legal order ought to be normatively, rather than a desire to provide a descriptively correct theory.

The reality of EU law would, contrastingly, support a constitutional theory which I term ‘deferential monism’. It is ‘deferential’ as it acknowledges that, whilst dependant on deference of national judicial bodies, the EU legal order is characterised by national courts exhibiting the necessary level of deference in most, very close to all, cases. As such, national courts retain ultimate authority with regards to legal interpretation and application of law, including EU law, in their jurisdiction, but will in almost all cases defer this authority to the CJEU for the very reasons the CJEU claims a need for its supremacy doctrine: if EU law were frequently applied in a divergent manner this would undermine legal certainty and the treaties’ purpose of creating a functioning internal-market with a level playing field. Thus, the descriptive reality of the EU legal order is one of degree. It is precisely what MacCormick argues it cannot be, namely ‘a bundle of overlapping laws to the extent that each state chose to acknowledge ‘Community’ laws and obligations’.[2] In other words, it is the cumulative result of 27 national legal systems’ incorporation of an international treaty system, hence the second part of the theory’s description.

Importantly, this also qualifies the CJEU’s contention in Costa v ENEL that EU law created an autonomous legal order. Under the model outlined, this claim too would depend, just as the absolute supremacy doctrine espoused by the CJEU does, on the level of deference given by national courts. Without such deference, it would again result in an empty claim, illustrating how the ‘autonomous’ character of EU law is actually semi-autonomous, with the degree of autonomy depending on the cumulative level of deference by the Member States’ legal systems.

‘Deferential monism’ would, I contend, more accurately account for the overall uniform and consistent pervasiveness of EU law, whilst not ignoring the institutional application and day-to-day reasoning of national courts. These have, as noted, resulted in reservations as well as exceptional outright clashes. Crucially, it would seem under this model that the PSPP ruling of the Bundesverfassungsgericht is neither revolutionary in conceptual nor in practical terms, but rather underlines and reminds us of the existing descriptive reality of EU law.

It is important to point out that such descriptive analysis does not equate an unqualified endorsement of EU law breaches and divergent interpretations of EU law. However, I argue that this more accurate account for the reality of EU law is necessary in order to understand what steps can be taken to ensure the EU’s long-term sustainability and future, and to avoid constitutional and norm clashes between the CJEU and the national courts. Suggestions on avoiding future clashes that may provide a helpful starting point have already been outlined by Weiler and Sarmiento, and it would seem that they support and build on the descriptive reality described here. It is only to be hoped that this development will continue.

[1] N MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999), N Walker (ed), Page 117-118

[2] Ibid.