37 / 610
35
refers to.
16
However, this paper touches the normative side of the debate only briefly in
the penultimate section, otherwise it stays at the analytical level.
2.2. The concept of constitutional pluralism and the role
of constitutional courts
This section identifies the reasons why theories of European constitutionalism
are relevant for analysing the position of domestic CCs. If we imagine a domestic
(national) and the European legal order as two elements, logically, the relationship
between them can be either
hierarchical,
with one element being superior to the other,
or
equal,
where both elements are on the same level and they have to compete or
cooperate in each particular situation where there is a potential conflict between them.
Assuming the hierarchical relationship can go both ways, these two relationships can
be distilled into three theoretical positions (although a range of variations
within
them are possible): member states monism, European constitutional monism and
constitutional pluralism.
17
While member states monism declares that ‘member states are hierarchically superior
to the non-constitutional legal order of the Union’, and that they also ‘remain the
‘masters’ of such an order’, European constitutional monism assumes an ‘independent
constitutional authority’ of Europe which is not subordinated to the member states and
is hierarchically superior to them.
18
The first approach is sometimes labelled ‘monism’
and the second one ‘dualism’ according to the statement whether international
and national law form ‘parts of the same legal order’. If so, then ‘international law
takes precedent’ over domestic law,
19
and therefore it creates a hierarchical structure.
However, the first classification could be viewed as more nuanced because (1) the
dualism of legal orders does not imply that one of them is superior to another, (2) the
significant third approach – constitutional pluralism – is in no way represented in the
second classification. Constitutional pluralism, this ‘third way’ of understanding the
position of EU law, stresses a different understanding of the whole relationship, not as
a hierarchy, but rather as a
heterarchy,
i.e. the constant overlap between the two orders
16
Neil Walker also wonders whether constitutional pluralism can be at work in reality, or it is merely a
‘wishful thinking’ of those, who believe that pluralism can be squared with constitutionalism, which
‘has been traditionally understood in unitary and hierarchical terms.’ See Walker, Neil: Constitutional
Pluralism in Global Context. In: Avbelj, Matej and Jan Komárek (eds.): Constitutional Pluralism in the
European Union and Beyond. Oxford: Hart, 2012, pp. 17-21. Christiaan Timmermans aptly captures
this dual purpose of constitutional pluralism when he argues that it ‘first of all intends to give a systemic
explanation of this situation but it intends also – and here comes the magic trick – to legitimize it.’
Timmermans, Christiaan: The Magic World of Constitutional Pluralism. In: European Constitutional
Law Review, 2014, Vol. 10, No. 2, p. 350.
17
Jaklic, Klemen: Constitutional Pluralism in the EU
.
Oxford: OUP, 2014.
18
Ibid. pp. 2-4.
19
Cairns, Walter: Introduction to European Union Law. Second Edition
.
London: Cavendish Publishing,
2002, pp. 114-115.