The debate regarding the primacy of EU law and the relationship between European and national law seems to be never-ending within European integration. It is a significant question from the perspective of the development of EU law and national constitutional law as well. There are many differing opinions, which can be placed on a scale from absolute primacy of EU law through peaceful coexistence, self-restraint of judges and judicial dialogue to absolute primacy of national law. Viewing the issue from the perspective of legal pluralism could offer one concept on this spectrum that can further European integration.

The primacy of EU law aims at solving issues arising from conflicts between national and European law. It establishes the idea of supremacy of European law over the law of the Member States, in policies within EU competences. Primacy originates from judicial practice, the Costa v ENEL case, and other cases of the Court of Justice of the European Union.

Meanwhile, the theory of constitutional identity was referenced in many decisions of national constitutional courts (Italian, German, Czech, Hungarian, etc.). National courts formulate the theory of constitutional identity based on sovereignty, and national identity is referenced in Article 4 (2) in the TEU. Constitutional identity is preserved by nation states, as the CJEU assesses national identity only in areas where competencies have been explicitly transferred.

The German Federal Constitutional Court referenced constitutional identity in the famous PSPP decision, where it declared an EU norm ultra vires and inapplicable. It classified some decisions of the European Central Bank and of the CJEU inapplicable. The decision focused mostly on the lack of proportionality, but also applied identity review as well. The identity clause in Article 4 (2) TEU is used as a device to transfer constitutional needs of the Member States to the realm of EU law and thus gain recognition in it.

How do legal theories connect to these doctrines? Legal theories help to put political processes and lawmaking into perspective, sometimes they formulate strong critiques against current and dominant theories, trends or legal norms in force. By extending our knowledge about legal theories, we can understand important aspects of law in force.

A widely-spread theory within contemporary EU law processes is a new form of constitutionalism. This has an effect on EU decision-making, law in force and everyday life of EU institutions. German legal scholarship has a fundamental role in the development of international and European law.

There are many examples of the constitutionalist visions appearing in the history and current state of the European integration. The Draft treaty establishing a constitution for Europe included terms like „constitution”, „minister”, „European law”, and after its refusal by referendums, some of these concepts were adopted as part of the law in force through TEU, TFEU and the binding force  of the Charter of Fundamental Rights.

Constitutionalism appeared in the ordinary revision process of the Treaties initiated by the European Parliament as well, where they proposed to rename the European Commission to ”Executive”, the commissioners to „secretaries” and aimed at formally codifying the right of the European Parliament to initiate legislation directly.

A problem with constitutionalism is that it promises the end of politics, it stretches the borrowed national expressions to their limit, and the constitutionalist vision can lead to tensions between the EU and its Member States due to the vertical nature of this concept. In my opinion, the standoff regarding the principle of the primacy of EU law is a good example of such contention.

Another legal theory, legal pluralism, however, would be more able to reconcile such differences of legal nature. Scholars supporting pluralist theories look at the centralism or monopoly of lawmaking processes with criticism and they believe that other forms can exist apart from state law, can exist other forms, non-state law as well and they emphasize that during history, on many occasions different layers of law and different legal systems of legal norms applied on the same territory at the same time. They reconceptionalise the relationship of law and society, stating that life is constituted by the intersection of different legal orders. They believe in the fundamental notion that several legal orders may coexist (like during colonialism, or the application of state law and church law, etc.). Thus, they step up against legal centralism or accepting one law system to be exclusive.

Tamanaha, for example, proposed instead of defining law to look at law as a thoroughly cultural construct, law is whatever the social practice of people considers as such. State law has lost its absolute prominence. According to Berman, law is an ongoing process of adaptation, articulation, resistance, etc. that is never-ending.

One could apply legal pluralism to the EU as well. If we approach national law and EU law as different systems of norms developed in different context, but that are interacting and have an effect on each other’s development. They also apply both to European citizens, who are also citizens of their own countries as well.

By accepting this approach as a beginning, the issue of the collision of national law and EU law could be solved through a shift in perspective and through a different culture regarding European and national law. At the same time, this concept is close to the values and goals of European integration as well: united in diversity.

 Árpád Lapu is an assistant research fellow at the Károli Gáspár University of the Reformed Church in Hungary. He was a policy adviser on constitutional issues at the European Parliament between 2019-2024. He worked as an adviser at the Ministry of Justice of Hungary (2017-2019) and the Ministry of European Union Affairs (2024-2026), conducting EU law, international law and comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an LLM in international law at the Catholic University of Louvain (UCLouvain).