5 cents on the mounting #pluralism debate. It’s reasonable for #EU institutions to reject the @BVerfG verdict. Deter copy-cats. However, both sides are missing the gist of legal pluralism in the EU. The primacy question is insoluble and needs to be treated as such. Long Thread 1/
Monist, unitary solutions are unwarranted for epistemic, democratic, politico-economic, and doctrinal reasons. From the observer’s point of view, both levels are deeply entangled with no clear precedence of either MS or EU level. 2/
EPISTEMIC: At which level is a well-ordered society possible? At the particular level of a homogeneous society, at the universal level of a world society, or somewhere in between? Almost all societies show both pluralistic and more homogeneous elements. 3/
DEMOCRATIC: At which level is a democratic society possible? Despite autocratic tendencies, most EU member states still have fairly strong domestic democratic institutions. But they cannot legitimize EMU etc. Yet, EU’s democratic legitimacy is partly derivative of MS democracy /4
POLITICO-ECONOMIC: The EU is powerful through the MS, and the MS are powerful through EU. 5/
DOCTRINAL: By definition, doctrine takes an internal perspective (Kelsen/Hart). One legal order cannot order the other one to obey. Costa/ENEL v. Maastricht ends in a draw. 6/
The challenge is therefore to operationalize the ensuing tension. I have argued elsewhere for “mutually assured discretion” as a mode of interaction characterized by common respect deriving from core common convictions - essentially democracy, rule of law, & fund. rights 7/
The point of having a nuclear option is not to use them. It is all about reassuring each other of the conditions of their continued non-use. Punch line: Follow Taricco! The BVerfG should have referred the case to the ECJ once more. 8/
Consequently, EU institutions are now escalating. Now German institutions need to send signals they will return to equilibrium. What could that be? @Bundestag, @Bundesregierung & @Bundesbank watering down the verdict during implementation? Election of more europhile judges? 9/
Or restricting admissibility of constitutional complaints? Welcoming your suggestions and comments! 10/end
PS: Sorry for spelling errors & bad grammar. Still exhausted from last week. 😕
