Does the Court of Justice Own the Treaties? Interpretative Pluralism as a Solution to Over‐Constitutionalisation

18 Pages Posted: 21 Nov 2018

See all articles by Gareth T. Davies

Gareth T. Davies

Free University of Amsterdam - Faculty of Law

Date Written: November 2018

Abstract

It is often assumed that Court of Justice interpretations of EU law are definitive and binding. However, this conflicts with conventional ideas about the trias politica, as well as with the principle of conferral, and rests on no more than the Court's own assertion. It also has harmful policy consequences, forcing national courts into constitutional resistance and, in claiming to fix the meaning of the Treaties, smothering Union politics. Interpretative pluralism, by contrast, insists on the possibility of diverging interpretations. That allows for wider participation in the construction of EU law, while retaining the integrity of Union law through commitment to shared texts and a balance of power between institutions. Institutional disagreements are reframed, not as conflicts between legal orders, but as conflicts about the meaning of a shared one. This approach is more profoundly integrative than the Court's top‐down approach, and also allows for greater diversity and experiment.

Suggested Citation

Davies, Gareth T., Does the Court of Justice Own the Treaties? Interpretative Pluralism as a Solution to Over‐Constitutionalisation (November 2018). European Law Journal, Vol. 24, Issue 6, pp. 358-375, 2018. Available at SSRN: https://ssrn.com/abstract=3288733 or http://dx.doi.org/10.1111/eulj.12298

Gareth T. Davies (Contact Author)

Free University of Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands
+31 20 5986303 (Phone)

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