With the development into ‘a mainstream theory’, constitutional pluralism constitutes a way of accommodating the divergent claims to the legitimate authority of the European Union (‘EU’) and the Member States. In the view of some, the theory is not only applicable in times of constitutional crisis but also acts as ‘an antipode to authoritarianism’. Nonetheless, in light of the controversial Decision of the Constitutional Tribunal of Poland (‘Decision K 3/21’) as to the incompatibility of EU law and the case law of the Court of Justice of the EU with the Constitution of Poland, a question arises whether such an assumption is still of relevance. In view of that, the post aims to reflect on Decision K 3/21 and analyse the question: ‘To what extent is the claim of the ultimate authority of the Constitution of Poland, in light of Decision K 3/21, within the limits of the normative core of constitutional pluralism?’. Apart from the overall importance of the inquiry in the context of the rule of law crisis, the recent Opinion of Advocate General Spielmann from 11 March 2025, in particular, illustrates why such an analysis in relation to Decision K 3/21, as ‘part of a wider legal development [in which] several constitutional or supreme courts of Member States’ (Case C‑448/23, Opinion of Advocate General Spielmann, para. 36), inter alia, contest the primacy of EU law, merits a careful attention.
The post, firstly, describes the normative core of constitutional pluralism in the EU with a particular focus on the value of the rule of law and the principle of judicial independence. Secondly, the post provides a succinct analysis of Decision K 3/21, a shift from the ‘sympathetic’ approach of the Constitutional Tribunal to the questioning of the very existence of the common values under Article 2 Treaty on European Union (‘Treaty’). Thirdly, the post contemplates the recourse to constitutional pluralism in the rule of law crisis as well as the limits of its normative core in relation to Decision K 3/21. The analysis illustrates that Decision K 3/21, as a destructive constitutional conflict, connotes not only the contempt for but also the contra legem interpretation of common values of the EU. In consequence, the claim of the ultimate authority of the Constitution of Poland, in light of Decision K 3/21, neither is within the limits of the normative core of constitutional pluralism nor can it act as a validation for non-compliance with the value of the rule of law.
The Normative Core of Constitutional Pluralism in the EU in the Form of Fundamental Values
With a set of fundamental values and a constitutional framework, the EU constitutes ‘a new legal order of international law’ (Case 26/62, 12) in which the principle of primacy of EU law is of fundamental importance. Nonetheless, despite the Court of Justice’s unconditional view of the principle (Case 11/70, para. 3), it remains open to ‘a plurality of conceptions’ of the national constitutional courts. In turn, distinguishable from the theory of constitutionalism, it is constitutional pluralism that departs from the traditional focus on the hierarchy of norms and accentuates the ability of constitutional systems to accommodate conflicts on the basis of a common frame of reference (see Walker, Kumm, Lawrence). In the EU, such a common frame of reference, in the opinion of Poiares Maduro, comprises a set of rules common to the Member States, ‘to which all actors of the European legal community must commit themselves’. Subsequently, in the view of Bobić, such a set of rules, or the normative core of constitutional pluralism, is the plurality of values under Article 2 Treaty. The values common to the Member States not only ‘operate as the normative ideal of constitutional pluralism, without resulting in an ultimately monist solution’. As one of the criteria for EU membership, the values also denote the voluntary commitment of the Member States (Case C-619/18, para. 42).
In view of that, whilst some authors argue that constitutional pluralism is ‘inherently prone to abuse’ by the Member States with autocratic tendencies, it is, in essence, its normative core that depicts its inherent incompatibility with authoritarianism. With the normative core of constitutional pluralism in the form of fundamental values, such as human dignity, it is noteworthy that constitutional pluralism acts as ‘an antipode to authoritarianism’, which is neither pluralist nor ‘does […] have human dignity at its normative core’.
The Rule of Law and the Principle of Judicial Independence
With respect to the normative core of constitutional pluralism, the element of pluralist discourse is of particular significance (see Baquero Cruz, Spieker). Whilst a consensus does not exist as to the precise scope of the rule of law in the constitutional sphere of the EU, a consensus is present as to ‘what falls outside its borders’. The EU Treaties not only include a number of provisions that stipulate the core elements or principles of the value but also provide ‘concrete expression’ (Case C-64/16, para. 32) to it. Furthermore, it is the principle of judicial independence, ‘a sine qua non of all other elements of the rule of law’, and the recognition of its institutional core in the EU (Case C-896/19,para. 53), which leaves ‘very little room for pluralist dissonance’. Accordingly, it is not the case that the core elements or principles that compose the rule of law ‘do not have any specific substantive content in EU law’ (Case C-157/21, para. 326). The existence of such substantive content does not, in reverse, inevitably preclude the recourse to constitutional pluralism. As a concept with ‘an autonomous meaning within the EU legal system’ (Case C-156/21, Opinion of Advocate General Campos Sánchez-Bordona, para. 273), the rule of law necessitates, for the purpose of uniform application, that it is the Court of Justice that shall determine the core elements, or parameters, of the value, in consideration of the common constitutional traditions of the Member States.
In that vein, with the determination of such parameters, not only is the threshold for the validation of pluralist dissonance particularly high that it does not allow for ‘the most flagrant violations’ of the rule of law. Similarly, the post maintains the view that the recourse to constitutional pluralism is only permissible insofar as it respects the core elements of the value. Therefore, the contempt for and contra legem interpretation of the rule of law connote that such an instance of dissonance is not within the limits of constitutional pluralism’s normative core.
Decision K 3/21 OF 7 October 2021
As a culmination of the rule of law crisis, in Decision K 3/21, the Constitutional Tribunal did pronounce that Articles 1, 2, 4(3) and 19(1) Treaty were inconsistent with the Constitution of Poland. In the view of the Constitutional Tribunal, the EU integration did not only enter a ‘new stage’ with the EU acting ‘outside of the scope of competences’ but did also preclude Poland from functioning as ‘a sovereign and democratic state’. Similarly, the Constitutional Tribunal did stipulate that on the basis of the second subparagraph of Article 19(1) Treaty, the national courts could ‘bypass the provisions of the Constitution [and] adjudicate on the basis of the provisions which [were] not binding’ (Decision K 3/21).
In that respect, it is noteworthy that it is, in particular, Article 19(1) Treaty on the basis of which the Court of Justice conducts the review of the national reforms of the judiciary (Case C-791/19). With the initiation of the application by the Prime Minister, Decision K 3/21 not only constitutes a prompt response to Case C-824/18 of the Court of Justice in respect to the appointment procedure to the Supreme Court and its potential to violate Article 19(1) Treaty. One might argue that Decision K 3/21 does also indicate the operationalisation of the Constitutional Tribunal as a political instrument of the Law and Justice Party (PiS) in the rule of law crisis (see Xero Flor w Polsce sp. z o.o. v Poland), and the attempts to change the legal situation in its favour outside of the limits of the Constitution.
Constitutional Pluralism in the Rule of Law Crisis
In Decision K 3/21, the Constitutional Tribunal did, therefore, question the very existence of the values under Article 2 Treaty, namely, the rule of law, in light of the claim of the ultimate authority of the Constitution. Not only is such a claim contrary to the commitment of Poland to promote and respect common values (Case C-896/19, paras. 61-62). Similarly, it also constitutes a deviation from the prior case law of the Constitutional Tribunal, in which it did accentuate that such a set of common values would substantially reduce the risk of a constitutional conflict between the Constitution and the law of the EU. The radical claim of the ultimate authority of the Constitution through the contempt for the common values, in sequence, points out an inherent incompatibility of Decision K 3/21 with the raison d’être of constitutional pluralism. Namely, the accommodation of constitutional conflicts through the common frame of reference.
In a similar vein, it is also the ‘erroneous interpretations’ of both the Constitution and the Treaty that connote that Decision K 3/21 is not within the scope of a reasonable interpretation of the rule of law. Whilst in the view of the Constitutional Tribunal, Article 2 Treaty is inconsistent with the Constitution insofar as it confers a competence to review the legality of the process of appointment of the judges on the domestic courts, it is noteworthy that the process in itself does raise legitimate doubts of non-compliance with the rule of law (Case C-791/19, para. 108; see Case C‑448/23, Opinion of Advocate General Spielmann, paras. 96-117). In light of Bobić’s categorisation of constitutional conflicts, the post maintains the view that Decision K 3/21, in principle, constitutes a destructive constitutional conflict, which inevitably precludes the recourse to constitutional pluralism through ‘mutual respect and sincere cooperation’.
As a consequence, by virtue of the contempt for and contra legem interpretation of the common values, the claim of the ultimate authority of the Constitution in Decision K 3/21 is not within the limits of the normative core of constitutional pluralism. Contrary to the view of some (for example, Kelemen and Pech, Spieker), due to the operationalisation of the Constitutional Tribunal in the consolidation of power of the ruling party (see Venice Commission’s Opinion on the Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland), it is not highly probable that the replacement of constitutional pluralism with the doctrine of unconditional primacy would reverse the course of rule of law backsliding in Poland. In that context, it is important to note that the recourse to constitutional pluralism has, in fact, strengthened the protection of fundamental rights and values in the course of European legal integration (see Case 11/70).
To conclude, within the EU, constitutional pluralism constitutes a foundation for the accommodation of constitutional conflicts through the common frame of reference, or the normative core, in the form of common values under Article 2 Treaty. Nonetheless, Decision K 3/21, as a destructive constitutional conflict, connotes not only the contempt for but also the contra legem interpretation of such common values. For that reason, the analysis, in particular, demonstrates that the claim of the ultimate authority of the Constitution, in light of Decision K 3/21, neither is within the limits of the normative core of constitutional pluralism nor can it act as a validation for non-compliance with the rule of law.
Natália Racková is a PhD Fellow at the Centre for European, Comparative and Constitutional Legal Studies (CECS) at the University of Copenhagen.
