The establishment of the Court of Justice of the European Union (‘CJEU’) is often still regarded today as an unequivocal success story, especially compared to the troubles experienced by kindred institutions elsewhere. For non-specialist audiences, it would even seem that its performance has only recently been cast in a more negative light, pursuant to the pushback of the German Federal Constitutional Court in the Weiss/PSPP saga. The current article aims to unpack a collection of shortcomings that have accumulated gradually and persist right up to the present, which have however not been interrogated in sufficient depth so far. It starts off with a contextual depiction of the tug-of-war between the supranational and the national judiciaries, juxtaposing the earlier confrontations with contemporary debates and controversies. Subsequently, attention is drawn to the sustained imperfections of the judicial selection and appointment process, addressing a few pervasive questions of institutional propriety. Hereafter, the article engages in a meta-analysis of ongoing discussions on the quality of the case law, testing the veracity of popular contentions pertaining to its constant variability. Lastly, it canvasses the pressures and agitations internal to the CJEU that have become increasingly manifest since the creation of the Court of First Instance. Overall, this fourfold re-appraisal aims to put back on record some of the B-sides on the sountrack of the new legal order, so as to compensate for the lack of airplay they have received hitherto.

This Article uncovers the normative political theory underlying the legal doctrine of constitutional pluralism, as it is used in the EU today. Constitutional pluralism, once described as a semi-official legal doctrine in the EU, is now being used by some member states to challenge its authority and rules. By reconstructing the political thought of one of its founders, N. MacCormick, this Article takes issue with two most common interpretations of constitutional pluralism: On the one hand, it has been claimed that the normative political content of constitutional pluralism is virtually identical, or at least compatible, with that of Kantian rights-based cosmopolitanism; on the other, it has been contended, especially with regard to its uses in Hungary and Poland, that it was an inherently dangerous, illiberal, normative theory. This Article offers to move away from current legal debates to go back to the origins of constitutional pluralism. It argues that constitutional pluralism is not a purely liberal theory indeed. But neither is it inherently illiberal. Rather, both liberal and illiberal readings are possible, but partial, interpretations of MacCormickian constitutional pluralism. A more systematic interpretation shows that constitutional pluralism opens a path to move beyond this somewhat archetypical divide.

Increasingly, populists and authoritarians have discovered for themselves the notion of constitutional identity as a practical excuse to sidestep transnational legal obligations, as well as to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values. This has led some scholars to highlight the “dangers of constitutional identity,” brandishing it as an “inherently dangerous concept,” and suggesting that the concept ought to be abandoned. This Article argues that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions. Simply dismissing the concept of constitutional identity will not lead to the disappearance of the meanings imparted through it. The authoritarian and populist appropriations of constitutional identity must be identified and understood as abuses of the concept. By eliding constitutional identity with its abuse, the anti-pluralist critique sacrifices a more intimate understanding of the realities of constitutional identity abuse to a likely unattainable normative vision of uncontested EU law primacy. In advancing this critique, I will further outline three potential avenues for understanding constitutional identity abuse, differentiating between its substantive, generative, and relational aspects. Constitutional identity claims can be abusive by virtue of their substantive content, how they have come about, as well as how they are advanced.

This article argues that constitutional pluralism is not a theory merely for times of equanimity, but crucially, in times of constitutional conflict. Given that it rests on the premise of regarding law as a dynamic, incrementally developing creature, constitutional conflict is no exceptional event, and represents an important element of the system's functioning. However, this does not mean that every point of conflict necessarily means progress for the pluralist system as a whole: it is possible to distinguish constructive from destructive conflict. In this respect, this piece will put forward a normative argument concerning the limits to which the auto-correct function of constitutional pluralism can stretch. In so doing, this piece will look at the recent jurisprudence of constitutional conflict at the EU and national level to demonstrate the limits of constructive conflict, as well as show how the example of Poland falls into the category of destructive conflict.

This article examines the relationship between constitutional pluralism and authoritarianism. It does so since the Weiss decision of the FCC spurred unusual attacks on constitutional pluralism. This particular theoretical vision of European integration has been described as inherently dangerous and its abandonment has been called for out of chiefly instrumentalist reasons, in order to prevent constitutional pluralism turning into an autocrats’ refuge. The article argues this critique of constitutional pluralism does not succeed. Due to its truncated, exclusively positivist understanding of constitutional pluralism, it has failed to take into account pluralism’s normative core. The latter presents itself an antipode to authoritarianism, which means that the autocratic regimes simply cannot credibly avail themselves of the theory of constitutional pluralism to justify their authoritarian actions.

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

The ruling of the German Federal Constitutional Court in the Right to be forgotten II case is an example of constitutional pluralism in action. It demonstrates how a pluralist-minded court can elevate itself from and above the constitutional confines of its own legal order. By integrating the material standards of another legal order in its own review of constitutionality a national constitutional court contributes directly to the strengthening of the fundamental rights of individuals against the national authorities within the overall system of European legal order.

Security is the meta-constitutional rationale of the European liberal project and is expressed by two tendentially self-justificatory discourses of power, which are two sides of the same coin: security and rights. The political, inherently conflictual nature of EU constitutional claims has been variously disguised through such discourses. Yet, as the process of constitutionalisation reaches a more advanced stage, in which the probability of high-intensity legal-political conflict as regards key issues of EU integration is growing, the moment has come to address conflict directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project. A move from self-referential to heterarchical security is thus advocated. As a result, the constellation of nation states should not be sidelined too easily and the needs and claims of the local level should be considered more carefully. In other words, the principles of primacy, autonomy, uniformity, and effectiveness of EU law ought to be conceived in relative, rather than in absolute terms. One possible way of addressing conflict is to simultaneously permit the CJEU (as well as other EU institutions) to engage more proactively with national courts and identify a common epistemic core, which ought to be upheld whenever the liberal-democratic premises of the European project are threatened.

This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.

To the extent that the UK's decision to withdraw from the EU can be interpreted as a reassertion of the classic ideas of Westphalian sovereign statehood, it questions the relevance of constitutional pluralism as a resolutely ‘post-sovereign’ model of relations between state administrations and their supranational counterparts. This contribution will therefore examine the usefulness and relevance of the idea of constitutional pluralism after Brexit. It looks at the various features and relationships affected by the Brexit process analysing the relevance of constitutional pluralism to each relationship pre- and post-Brexit, concluding that, whereas Brexit clearly affects the different relationships involved, constitutional pluralism can and will remain relevant to EU/UK relations as well as within the EU, well into the future.

This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.

Constitutional pluralism is a theory for the post-sovereign European state. This only makes sense historically, emerging out of postwar European reconstruction through the repression of popular sovereignty and restraining of democracy, including through the project of European integration. It became unsettled at Maastricht and evolved from a series of irritants into a full-blown crisis in the recent decade, with sovereignty claims returning both from the bottom-up and the top-down, to the extent that we can legitimately ask whether we are now moving ‘beyond the post-sovereign state’? Constitutional pluralist literature fails to capture this in that evades material issues of democracy and political economy.