Aspects of constitutional pluralism in light of the Gauweiler saga

Despite the increased interaction between the highest national courts of Member States and the European Court of Justice, and the sophisticated literature on constitutional pluralism which conceptualises it, the relationship between these courts remains difficult. The first-ever preliminary reference by the Federal Constitutional Court of Germany is a good example of this. The Gauweiler saga offers an opportunity to address three constitutional issues underlying this difficult relationship. First, Gauweiler is yet another example of how the German court in particular is in a privileged position vis-à-vis other national courts when it comes to interacting with the Court of Justice but also affecting the European-level political process. Secondly, the conceptual distinction between primacy and supremacy of EU law is relevant and may further the protection of individual rights within the Union. Thirdly, "judicial dialogues" may be useful in furthering rights protection, but constitutional pluralists are wrong to assert that such dialogues can settle the inevitable competition between national courts and the Court of Justice.