Pedro Cuesta García
GEM-DIAMOND doctoral fellow
ESR 5 – National and European courts reacting to dissensus: The case of fundamental rights protection
Pedro is a Marie Skłodowska-Curie PhD candidate at Luiss University in Rome and at iCourts in the University of Copenhagen under the framework of the GEM-DIAMOND and Horizon Europe programmes. His research focuses on the constitutional aspects of EU law, the connections between EU and national law, and the role of courts in shaping the EU polity and the integration process.
Host Institutions
Constitutional Motives Behind National Judicial Resistance: The End of Integration Through Law?
Supervisors
- Giovanni Piccirilli
- Mikael Madsen
Research abstract
This doctoral thesis, titled "The End of Integration Through Law?", examines the phenomenon of national apex court resistance to the authority of the Court of Justice of the European Union (CJEU). Through a comparative analysis of the case law of four national courts, the Italian Constitutional Court, the German Federal Constitutional Court, the Spanish Constitutional Court, and the Danish Supreme Court, the thesis investigates why constitutional and supreme courts across the European Union have repeatedly asserted the power to review, and in some cases limit, the application of EU law within their domestic legal orders, notwithstanding the CJEU's own doctrine of absolute primacy.
The thesis argues that existing theoretical frameworks, including constitutional pluralism and its various doctrinal refinements, fail to provide a fully satisfying normative foundation for this pattern of resistance. In response, it develops an original theory grounded in the concept of constituent power, contending that national apex courts' claims to a final say over the limits of European integration are best understood as expressions of the enduring authority of national constituent power, rather than as mere jurisdictional turf disputes or as failures to accept the logic of supranational integration.
By tracing this resistance across four distinct constitutional traditions and multiple critical moments in the history of European integration the thesis offers both a doctrinal account of how these courts have justified their positions and a normative argument for why constituent power theory provides the most coherent explanation of, and justification for, this resistance.
The thesis argues that existing theoretical frameworks, including constitutional pluralism and its various doctrinal refinements, fail to provide a fully satisfying normative foundation for this pattern of resistance. In response, it develops an original theory grounded in the concept of constituent power, contending that national apex courts' claims to a final say over the limits of European integration are best understood as expressions of the enduring authority of national constituent power, rather than as mere jurisdictional turf disputes or as failures to accept the logic of supranational integration.
By tracing this resistance across four distinct constitutional traditions and multiple critical moments in the history of European integration the thesis offers both a doctrinal account of how these courts have justified their positions and a normative argument for why constituent power theory provides the most coherent explanation of, and justification for, this resistance.
Research Question(s)
1.How have national apex courts, specifically the Italian Constitutional Court, the German Federal Constitutional Court, the Spanish Constitutional Court, and the Danish Supreme Court, doctrinally constructed and justified their claims to a final say over the limits of European integration?
2. To what extent do existing theoretical frameworks, particularly constitutional pluralism and its various refinements, adequately account for this pattern of national judicial resistance?
3. Can a theory of constituent power provide a more coherent normative foundation for understanding why national apex courts retain, and exercise, this power of resistance?
2. To what extent do existing theoretical frameworks, particularly constitutional pluralism and its various refinements, adequately account for this pattern of national judicial resistance?
3. Can a theory of constituent power provide a more coherent normative foundation for understanding why national apex courts retain, and exercise, this power of resistance?
Research Hypothesis(es)
This thesis hypothesizes that national apex court resistance to the primacy of EU law is not adequately explained by existing theoretical frameworks, including constitutional pluralism and its doctrinal refinements, and that a theory of constituent power offers a more coherent and normatively grounded explanation for this phenomenon.
More specifically, the thesis advances the following hypotheses:
1. National apex courts do not resist the primacy of EU law merely as an incidental or purely doctrinal matter, but because their claims to a final say over the limits of integration are, whether explicitly articulated or not, expressions of the enduring authority of national constituent power.
2. Existing pluralist accounts, while correctly identifying the fact of coexisting and potentially conflicting legal orders, fail to supply a sufficient normative justification for why national courts, rather than the CJEU, should retain the final word in cases of fundamental conflict.
3. A constituent power framework better accounts for the pattern, timing, and substantive limits of this resistance across different national constitutional traditions than accounts centered on constitutional identity, sovereignty, or judicial dialogue alone.
More specifically, the thesis advances the following hypotheses:
1. National apex courts do not resist the primacy of EU law merely as an incidental or purely doctrinal matter, but because their claims to a final say over the limits of integration are, whether explicitly articulated or not, expressions of the enduring authority of national constituent power.
2. Existing pluralist accounts, while correctly identifying the fact of coexisting and potentially conflicting legal orders, fail to supply a sufficient normative justification for why national courts, rather than the CJEU, should retain the final word in cases of fundamental conflict.
3. A constituent power framework better accounts for the pattern, timing, and substantive limits of this resistance across different national constitutional traditions than accounts centered on constitutional identity, sovereignty, or judicial dialogue alone.
Personal Research Bibliography (So Far)
Selected substantive bibliography:
- Donoso Cortés, J. (1954). Obras. Madrid, Spain: Imprenta Tejado, at 200.
- Schmitt, C. (1992). Political Theology: Four chapters on the concept of sovereignty. Chicago, US: Chicago University Press.
- MacCormick, N. (1993). Beyond the Sovereign State. The Modern Law Review, 56, 1-18.
- Pernice, I. (1999). Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? Common Market Law Review, 36 (4), 703-750.
- Kumm, M. (1999). Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice. Common Market Law Review, 36, 351.
- Walker, N. (2002), The Idea of Constitutional Pluralism. The Modern Law Review, 65, 317-359.
- Maduro, M. (2003). “Contrapunctual Law: Europe’s Constitutional Pluralism in Action” in N. Walker (ed.), Sovereignty in Transition. Oxford: Hart Publishing.
- Eijsbouts, W. T. (2010). Wir Sind das Volk: Notes About the Notion of ‘The People’ as Occasioned by the Lissabon-Urteil. European Constitutional Law Review, 6(2), 199–222.
- Mayer, F., & Wendel, M. (2012). “Multilevel Constitutionalism and Constitutional Pluralism Querelle Allemande or Querelle d’ Allemande?” in Avbelj, M., and Komárek, J. (eds.), Constitutional Pluralism in the European Union and Beyond. Oxford: Hart.
- Marti, G. (2013). Construcción política de la Unión Europea y poder constituyente. Teoría y Realidad Constitucional, (32), 309–322.
- Wendel, M. (2013). Comparative reasoning and the making of a common constitutional law: EU-related decisions of national constitutional courts in a transnational perspective. International Journal of Constitutional Law, 11(4), 981–1002.
- Klemen, J. (2014). Constitutional Pluralism in the EU. Oxford Studies in European Law, Oxford.
- Fabbrini, F. (2015). After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States. German Law Journal, 16(4), 1003-1023.
- Baquero Cruz, J. (2016) Another Look at Constitutional Pluralism in the European Union. European Law Journal, 22, 356–374.
- Cheneval, F., & Nicolaidis, K. (2017). The social construction of demoicracy in the European Union. European Journal of Political Theory, 16(2), 235-260.
- Kelemen, R. D., & Pech, L. (2018). Why autocrats love constitutional identity and constitutional pluralism: Lessons from Hungary and Poland. Reconnect Working Paper No. 2.
- Albert, R. (2019). Constitutional Amendments: Making, Breaking, and Changing Constitutions. New York, Oxford Academic.
- Lawrance, J. C. (2019). Constitutional Pluralism’s Unspoken Normative Core. Cambridge Yearbook of European Legal Studies, 21, 24–40.
- Bobić, A. (2020). Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU. Cambridge Yearbook of European Legal Studies. 2020, 22:60-84
- Colón-Ríos, J. (2020). The Constituent Power and the Law. Oxford, UK: Oxford academic.
- Schutze. R. (2020). Models of demoicracy: some preliminary thoughts. EUI Working Papers LAW, 2020/08.
- Patberg, M. (2021). Constituent Power in the European Union. Oxford, Oxford Academic.
- Coman, R., & Brack, N. (2023). Understanding Dissensus over Liberal Democracy in the Age of Crises: Theoretical Reflections. In R. Coman & N. Brack (Eds.), Dissensus Over Liberal Democracy. Working Paper Series N°1, RED SPINEL Project.
- Scarcello, O. (2023). Radical Constitutional Pluralism in Europe. Routledge.
- Scholtes, J. (2023). The Abuse of Constitutional Identity in the European Union. Oxford, Oxford Academic.
- Donoso Cortés, J. (1954). Obras. Madrid, Spain: Imprenta Tejado, at 200.
- Schmitt, C. (1992). Political Theology: Four chapters on the concept of sovereignty. Chicago, US: Chicago University Press.
- MacCormick, N. (1993). Beyond the Sovereign State. The Modern Law Review, 56, 1-18.
- Pernice, I. (1999). Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? Common Market Law Review, 36 (4), 703-750.
- Kumm, M. (1999). Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice. Common Market Law Review, 36, 351.
- Walker, N. (2002), The Idea of Constitutional Pluralism. The Modern Law Review, 65, 317-359.
- Maduro, M. (2003). “Contrapunctual Law: Europe’s Constitutional Pluralism in Action” in N. Walker (ed.), Sovereignty in Transition. Oxford: Hart Publishing.
- Eijsbouts, W. T. (2010). Wir Sind das Volk: Notes About the Notion of ‘The People’ as Occasioned by the Lissabon-Urteil. European Constitutional Law Review, 6(2), 199–222.
- Mayer, F., & Wendel, M. (2012). “Multilevel Constitutionalism and Constitutional Pluralism Querelle Allemande or Querelle d’ Allemande?” in Avbelj, M., and Komárek, J. (eds.), Constitutional Pluralism in the European Union and Beyond. Oxford: Hart.
- Marti, G. (2013). Construcción política de la Unión Europea y poder constituyente. Teoría y Realidad Constitucional, (32), 309–322.
- Wendel, M. (2013). Comparative reasoning and the making of a common constitutional law: EU-related decisions of national constitutional courts in a transnational perspective. International Journal of Constitutional Law, 11(4), 981–1002.
- Klemen, J. (2014). Constitutional Pluralism in the EU. Oxford Studies in European Law, Oxford.
- Fabbrini, F. (2015). After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States. German Law Journal, 16(4), 1003-1023.
- Baquero Cruz, J. (2016) Another Look at Constitutional Pluralism in the European Union. European Law Journal, 22, 356–374.
- Cheneval, F., & Nicolaidis, K. (2017). The social construction of demoicracy in the European Union. European Journal of Political Theory, 16(2), 235-260.
- Kelemen, R. D., & Pech, L. (2018). Why autocrats love constitutional identity and constitutional pluralism: Lessons from Hungary and Poland. Reconnect Working Paper No. 2.
- Albert, R. (2019). Constitutional Amendments: Making, Breaking, and Changing Constitutions. New York, Oxford Academic.
- Lawrance, J. C. (2019). Constitutional Pluralism’s Unspoken Normative Core. Cambridge Yearbook of European Legal Studies, 21, 24–40.
- Bobić, A. (2020). Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU. Cambridge Yearbook of European Legal Studies. 2020, 22:60-84
- Colón-Ríos, J. (2020). The Constituent Power and the Law. Oxford, UK: Oxford academic.
- Schutze. R. (2020). Models of demoicracy: some preliminary thoughts. EUI Working Papers LAW, 2020/08.
- Patberg, M. (2021). Constituent Power in the European Union. Oxford, Oxford Academic.
- Coman, R., & Brack, N. (2023). Understanding Dissensus over Liberal Democracy in the Age of Crises: Theoretical Reflections. In R. Coman & N. Brack (Eds.), Dissensus Over Liberal Democracy. Working Paper Series N°1, RED SPINEL Project.
- Scarcello, O. (2023). Radical Constitutional Pluralism in Europe. Routledge.
- Scholtes, J. (2023). The Abuse of Constitutional Identity in the European Union. Oxford, Oxford Academic.
Personal Methods-Specific Bibliography (So Far)
Selected methodological bibliography:
- Raz, J. (1977). The Rule of Law and its Virtue. Law Quarterly Review, 93, 195.
- Stone Sweet, A. (2000). Governing with Judges. Constitutional Politics in Europe. New York: Oxford University Press.
- McGuire, K. T., & Stimson, J. A. (2004). The least dangerous branch revisited: New evidence on Supreme Court responsiveness to public preferences. Journal of Politics, 66(4), 1018–1035.
- Tamanaha, B. (2004). On the Rule of Law: History, Politics, Theory. Cambridge University Press.
- Tamanaha, B. (2006). Law as a Means to an End: Threat to the Rule of Law. Cambridge University Press.
- Epstein, L. & Andrew D. M. (2010). Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why). University of Pennsylvania Journal of Constitutional Law 13: 263-281 (Symposium).
- Casillas, C. J., Enns, P. K., & Wohlfarth, P. C. (2011). How Public Opinion Constrains the U.S. Supreme Court. American Journal of Political Science, 55(1), 74–88.
- Conway, G. (2012). The Limits of Legal Reasoning and the European Court of Justice. Cambridge Studies in European Law and Policy. Cambridge University Press.
- Beck, G. (2013). The Legal Reasoning of the Court of Justice of the EU. Hart: Oxford.
- Muir, E., Dawson, M., & de Witte, B., (2013). “Introduction: the European Court of Justice as a political actor”. In Dawson, M., de Witte, B., & Muir, E. (editor/s): Judicial activism at the European Court of Justice: causes, responses and solutions. Cheltenham: Edward Elgar.
- Bobek, M. (2014). Legal Reasoning of the Court of Justice of the EU. European Law Review, 39(3), 418-428.
- Dawson, M. (2014). How Does the European Court of Justice Reason? European Law Journal 20 (3), 423–435.
- Carrubba, C. J., & Matthew J. G. (2015). International Courts and the Performance of International Agreements. A General Theory with Evidence from the European Union. New York: Cambridge University Press.
- Larsson, O., & Naurin, D. (2016). Judicial Independence and Political Uncertainty: How the Risk of Override Impacts on the Court of Justice of the EU. International Organization, 70(1), 377–408.
- Blauberger, M., & Schmidt, S. K. (2017). The European Court of Justice and its political impact. West European Politics, 40(4), 907-918.
- Loughlin, M. (2017). Political Jurisprudence. Oxford University Press.
- Saurugger, S., & Terpan, F. (2017). The Court of Justice of the European Union and the Politics of Law. Basingstoke: Palgrave Macmillan.
- Blauberger, M., Heindlmaier, A., Kramer, D., Martinsen, D. S., Thierry, J. S, Schenk, A., & Werner, B. (2018). ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence. Journal of European Public Policy, 25(10), 1422-1441.
- Van Malleghem, P. A., (2018). “Reflections on European Legal Formalism”. In Perišin, T. and Rodin, S. (editors): The Transformation or Reconstitution of Europe. 1st edn. Hart Publishing.
- Blauberger, M. & Martinsen, D. S. (2020) The Court of Justice in times of politicisation: ‘law as a mask and shield’ revisited. Journal of European Public Policy, 27:3, 382-399.
- Mańko, R. (2020). Methods of Legal Interpretation, Legitimacy of Judicial Discretion and Decision-Making in the Field of the Political: a theoretical model and case study. International Comparative Jurisprudence, 6(2), 108-117.
- Bartl, M., and Lawrence, JC., (eds). (2022). The Politics of European Legal Research: Behind the Method. Edward Elgar Publishing.
- Madsen, M. R., Nicola, F., & Vauchez, A. (eds). (2022). Researching the European Court of Justice: Methodological Shifts and Law’s Embeddedness. Cambridge University Press.,
- Moser, C., & Rittberger, B. (2022). The CJEU and EU (de-)constitutionalization: Unpacking jurisprudential responses. International Journal of Constitutional Law, Volume 20, Issue 3, 1038–1070.
- Dothan, S., Mair, S., & Mayoral, J.A (2024). Introduction: Making the invisible visible in European Union law. European Law Open; 3(2), 360-371.
- van den Brink M. (2024). Political, not (just) legal judgement: studying EU institutional balance. European Law Open; 3(2), 389-401.
- Raz, J. (1977). The Rule of Law and its Virtue. Law Quarterly Review, 93, 195.
- Stone Sweet, A. (2000). Governing with Judges. Constitutional Politics in Europe. New York: Oxford University Press.
- McGuire, K. T., & Stimson, J. A. (2004). The least dangerous branch revisited: New evidence on Supreme Court responsiveness to public preferences. Journal of Politics, 66(4), 1018–1035.
- Tamanaha, B. (2004). On the Rule of Law: History, Politics, Theory. Cambridge University Press.
- Tamanaha, B. (2006). Law as a Means to an End: Threat to the Rule of Law. Cambridge University Press.
- Epstein, L. & Andrew D. M. (2010). Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why). University of Pennsylvania Journal of Constitutional Law 13: 263-281 (Symposium).
- Casillas, C. J., Enns, P. K., & Wohlfarth, P. C. (2011). How Public Opinion Constrains the U.S. Supreme Court. American Journal of Political Science, 55(1), 74–88.
- Conway, G. (2012). The Limits of Legal Reasoning and the European Court of Justice. Cambridge Studies in European Law and Policy. Cambridge University Press.
- Beck, G. (2013). The Legal Reasoning of the Court of Justice of the EU. Hart: Oxford.
- Muir, E., Dawson, M., & de Witte, B., (2013). “Introduction: the European Court of Justice as a political actor”. In Dawson, M., de Witte, B., & Muir, E. (editor/s): Judicial activism at the European Court of Justice: causes, responses and solutions. Cheltenham: Edward Elgar.
- Bobek, M. (2014). Legal Reasoning of the Court of Justice of the EU. European Law Review, 39(3), 418-428.
- Dawson, M. (2014). How Does the European Court of Justice Reason? European Law Journal 20 (3), 423–435.
- Carrubba, C. J., & Matthew J. G. (2015). International Courts and the Performance of International Agreements. A General Theory with Evidence from the European Union. New York: Cambridge University Press.
- Larsson, O., & Naurin, D. (2016). Judicial Independence and Political Uncertainty: How the Risk of Override Impacts on the Court of Justice of the EU. International Organization, 70(1), 377–408.
- Blauberger, M., & Schmidt, S. K. (2017). The European Court of Justice and its political impact. West European Politics, 40(4), 907-918.
- Loughlin, M. (2017). Political Jurisprudence. Oxford University Press.
- Saurugger, S., & Terpan, F. (2017). The Court of Justice of the European Union and the Politics of Law. Basingstoke: Palgrave Macmillan.
- Blauberger, M., Heindlmaier, A., Kramer, D., Martinsen, D. S., Thierry, J. S, Schenk, A., & Werner, B. (2018). ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence. Journal of European Public Policy, 25(10), 1422-1441.
- Van Malleghem, P. A., (2018). “Reflections on European Legal Formalism”. In Perišin, T. and Rodin, S. (editors): The Transformation or Reconstitution of Europe. 1st edn. Hart Publishing.
- Blauberger, M. & Martinsen, D. S. (2020) The Court of Justice in times of politicisation: ‘law as a mask and shield’ revisited. Journal of European Public Policy, 27:3, 382-399.
- Mańko, R. (2020). Methods of Legal Interpretation, Legitimacy of Judicial Discretion and Decision-Making in the Field of the Political: a theoretical model and case study. International Comparative Jurisprudence, 6(2), 108-117.
- Bartl, M., and Lawrence, JC., (eds). (2022). The Politics of European Legal Research: Behind the Method. Edward Elgar Publishing.
- Madsen, M. R., Nicola, F., & Vauchez, A. (eds). (2022). Researching the European Court of Justice: Methodological Shifts and Law’s Embeddedness. Cambridge University Press.,
- Moser, C., & Rittberger, B. (2022). The CJEU and EU (de-)constitutionalization: Unpacking jurisprudential responses. International Journal of Constitutional Law, Volume 20, Issue 3, 1038–1070.
- Dothan, S., Mair, S., & Mayoral, J.A (2024). Introduction: Making the invisible visible in European Union law. European Law Open; 3(2), 360-371.
- van den Brink M. (2024). Political, not (just) legal judgement: studying EU institutional balance. European Law Open; 3(2), 389-401.
Selected Case Studies
The thesis conducts a comparative doctrinal analysis of the case law of four national apex courts:
Italian Constitutional Court (ItCC)
German Federal Constitutional Court (GFCC)
Spanish Constitutional Court (SCC)
Danish Supreme Court (SCDK)
This is a purposive rather than exhaustive selection, prioritizing depth of analysis over breadth of coverage. All four courts operate within liberal democratic systems whose commitment to the rule of law is not itself in question, which allows the thesis to isolate what can be considered legitimate constitutional resistance to EU law from the distinct phenomenon of rule of law backsliding; jurisdictions such as Hungary, Poland, or Romania were therefore excluded from the sample.
Within this group, the courts were chosen to capture a deliberately wide spectrum of judicial engagement with European integration. The Italian and German courts are indispensable given their status as founding Member States with long traditions of strong constitutional review and their outsized influence in shaping the terms of engagement with EU law. The Spanish Constitutional Court was included to test whether the analytical framework extends beyond these classic paradigms, given its later accession to the Communities and its generally more accommodationist posture toward integration. The Danish Supreme Court, finally, represents jurisdictions where parliamentary sovereignty remains comparatively robust and formal constitutional review is more limited, allowing the thesis to examine how judicial resistance to EU law manifests even where courts are structurally more constrained.
Together, these four courts span different legal traditions, institutional designs, and attitudes toward European integration, providing an analytically rich basis for testing the thesis's theoretical claims.
Italian Constitutional Court (ItCC)
German Federal Constitutional Court (GFCC)
Spanish Constitutional Court (SCC)
Danish Supreme Court (SCDK)
This is a purposive rather than exhaustive selection, prioritizing depth of analysis over breadth of coverage. All four courts operate within liberal democratic systems whose commitment to the rule of law is not itself in question, which allows the thesis to isolate what can be considered legitimate constitutional resistance to EU law from the distinct phenomenon of rule of law backsliding; jurisdictions such as Hungary, Poland, or Romania were therefore excluded from the sample.
Within this group, the courts were chosen to capture a deliberately wide spectrum of judicial engagement with European integration. The Italian and German courts are indispensable given their status as founding Member States with long traditions of strong constitutional review and their outsized influence in shaping the terms of engagement with EU law. The Spanish Constitutional Court was included to test whether the analytical framework extends beyond these classic paradigms, given its later accession to the Communities and its generally more accommodationist posture toward integration. The Danish Supreme Court, finally, represents jurisdictions where parliamentary sovereignty remains comparatively robust and formal constitutional review is more limited, allowing the thesis to examine how judicial resistance to EU law manifests even where courts are structurally more constrained.
Together, these four courts span different legal traditions, institutional designs, and attitudes toward European integration, providing an analytically rich basis for testing the thesis's theoretical claims.
Key Findings (So Far)
1. National judicial resistance follows a coherent pattern, not a scattered set of disputes. Across the four courts studied, resistance to EU law is structured around three main national review techniques, fundamental rights review, ultra vires review, and constitutional identity review, each anchored in the domestic constitution and each presented by the relevant court as a response to a perceived overreach by the EU legal order. Read together, these techniques function as doctrinal vehicles through which national apex courts defend what they understand to be the constituent power of their own peoples against the expansive authority of EU law.
2. Existing theoretical frameworks, including the most sophisticated versions of constitutional pluralism, do not resolve the question of ultimate authority. Conflicts-of-law approaches, multilevel constitutionalism, and composite legal order theories each illuminate part of the picture but fail to fully capture either the constitutional depth of these conflicts or the legitimacy of national resistance. Even the "metamorphosed," value-centred version of constitutional pluralism, which grounds itself in Article 2 TEU as a shared normative core, does not resolve the underlying institutional question of who ultimately has the authority to decide whether a court, national or supranational, is acting within or beyond that shared core.
3. A refined theory of constituent power offers a more coherent normative standard for assessing both national resistance and EU supremacy. Rather than treating constituent power as an opaque or purely symbolic reference, the thesis reconstructs it as a practice bound by procedural constraints, requiring genuine participation, inclusion, and deliberation, and substantive constraints, requiring respect for a liberal constitutional core. Applying this refined standard to the EU suggests that the Treaties are functionally constitutional but lack the democratic pedigree of a true constitution, since treaty making and revision have been dominated by national executives and the CJEU rather than by an exercise of constituent power by the peoples of Europe.
4. This diagnosis reframes national judicial resistance as a defensible, if ambivalent, feature of the current constitutional "interregnum." Because the EU occupies a liminal status, possessing constitutional law without a formal constitution, national apex courts will continue to face genuine collisions between EU authority and their own constitutional orders. The thesis argues this resistance is neither unconditionally legitimate nor illegitimate: it is defensible where it responds to genuine constituent concerns, transparently reasoned and consistent with the court's own domestic protection of rights and democracy, and indefensible where it is used to shield entrenched interests, block legitimate political change, or launder illiberal aims in the language of popular sovereignty.
5. The framework also clarifies the boundary between legitimate constitutional resistance and rule of law backsliding. Because respect for the rule of law is itself a constitutive element of a legitimate exercise of constituent power, the thesis argues that constituent power rhetoric cannot coherently be invoked to undermine the rule of law, offering a normative criterion for distinguishing doctrinally reasoned judicial resistance from the instrumentalization of constitutional language by actors seeking to weaken checks and balances.
2. Existing theoretical frameworks, including the most sophisticated versions of constitutional pluralism, do not resolve the question of ultimate authority. Conflicts-of-law approaches, multilevel constitutionalism, and composite legal order theories each illuminate part of the picture but fail to fully capture either the constitutional depth of these conflicts or the legitimacy of national resistance. Even the "metamorphosed," value-centred version of constitutional pluralism, which grounds itself in Article 2 TEU as a shared normative core, does not resolve the underlying institutional question of who ultimately has the authority to decide whether a court, national or supranational, is acting within or beyond that shared core.
3. A refined theory of constituent power offers a more coherent normative standard for assessing both national resistance and EU supremacy. Rather than treating constituent power as an opaque or purely symbolic reference, the thesis reconstructs it as a practice bound by procedural constraints, requiring genuine participation, inclusion, and deliberation, and substantive constraints, requiring respect for a liberal constitutional core. Applying this refined standard to the EU suggests that the Treaties are functionally constitutional but lack the democratic pedigree of a true constitution, since treaty making and revision have been dominated by national executives and the CJEU rather than by an exercise of constituent power by the peoples of Europe.
4. This diagnosis reframes national judicial resistance as a defensible, if ambivalent, feature of the current constitutional "interregnum." Because the EU occupies a liminal status, possessing constitutional law without a formal constitution, national apex courts will continue to face genuine collisions between EU authority and their own constitutional orders. The thesis argues this resistance is neither unconditionally legitimate nor illegitimate: it is defensible where it responds to genuine constituent concerns, transparently reasoned and consistent with the court's own domestic protection of rights and democracy, and indefensible where it is used to shield entrenched interests, block legitimate political change, or launder illiberal aims in the language of popular sovereignty.
5. The framework also clarifies the boundary between legitimate constitutional resistance and rule of law backsliding. Because respect for the rule of law is itself a constitutive element of a legitimate exercise of constituent power, the thesis argues that constituent power rhetoric cannot coherently be invoked to undermine the rule of law, offering a normative criterion for distinguishing doctrinally reasoned judicial resistance from the instrumentalization of constitutional language by actors seeking to weaken checks and balances.
Social Relevance of your Research
This research addresses pressing concerns at the heart of contemporary European governance—namely, how national constitutional courts challenge, resist, or cooperate with the authority of EU law. As constitutional conflicts between courts continue to unfold and appeals to constitutional identity become increasingly prominent, understanding the boundary between legitimate constitutional pluralism and abusive legal resistance has become essential.
The relationship between national constitutions and EU law is not a purely academic question. It determines which court has the final word when EU legislation conflicts with fundamental rights protected under national constitutions, how far Brussels can go in areas touching monetary policy, criminal law, or family law, and ultimately, whose authority citizens can appeal to when they believe their rights have been violated. These questions have moved from the margins of legal scholarship to the center of European political life over the past decade, as the rule of law crisis in Hungary and Poland, disputes over the European Central Bank's mandate, and repeated clashes between national courts and the Court of Justice have shown that the architecture of European integration is far from settled.
This thesis contributes to that debate by clarifying the normative grounds on which national apex courts can legitimately resist EU law, and where such resistance shades into something more troubling. This distinction matters directly for democratic accountability: it helps identify when a national court is defending a constitutional order rooted in the will of its people, and when a government or court is instead using the language of national identity or sovereignty as a pretext for undermining the rule of law or eroding rights that EU membership was meant to secure. In a period in which populist governments have increasingly invoked "national identity" and "sovereignty" to resist EU oversight, often in ways that damage rather than protect democratic institutions, distinguishing principled constitutional resistance from strategic obstruction has direct implications for how EU institutions, national governments, and citizens themselves should evaluate these conflicts.
More broadly, the thesis speaks to anyone living, working, or seeking legal protection within the European Union, since the outcome of these institutional conflicts shapes the practical scope of rights citizens can invoke, the stability of the currency they use, and the degree of democratic control they retain over decisions made at the European level. By offering a clearer theoretical account of why and how national courts push back against EU authority, the research aims to inform not only academic debate but also the broader public and policy conversation about the future shape of European integration.
The relationship between national constitutions and EU law is not a purely academic question. It determines which court has the final word when EU legislation conflicts with fundamental rights protected under national constitutions, how far Brussels can go in areas touching monetary policy, criminal law, or family law, and ultimately, whose authority citizens can appeal to when they believe their rights have been violated. These questions have moved from the margins of legal scholarship to the center of European political life over the past decade, as the rule of law crisis in Hungary and Poland, disputes over the European Central Bank's mandate, and repeated clashes between national courts and the Court of Justice have shown that the architecture of European integration is far from settled.
This thesis contributes to that debate by clarifying the normative grounds on which national apex courts can legitimately resist EU law, and where such resistance shades into something more troubling. This distinction matters directly for democratic accountability: it helps identify when a national court is defending a constitutional order rooted in the will of its people, and when a government or court is instead using the language of national identity or sovereignty as a pretext for undermining the rule of law or eroding rights that EU membership was meant to secure. In a period in which populist governments have increasingly invoked "national identity" and "sovereignty" to resist EU oversight, often in ways that damage rather than protect democratic institutions, distinguishing principled constitutional resistance from strategic obstruction has direct implications for how EU institutions, national governments, and citizens themselves should evaluate these conflicts.
More broadly, the thesis speaks to anyone living, working, or seeking legal protection within the European Union, since the outcome of these institutional conflicts shapes the practical scope of rights citizens can invoke, the stability of the currency they use, and the degree of democratic control they retain over decisions made at the European level. By offering a clearer theoretical account of why and how national courts push back against EU authority, the research aims to inform not only academic debate but also the broader public and policy conversation about the future shape of European integration.
Pedro Cuesta García is a Marie Skłodowska-Curie Doctoral Fellow under the framework of the GEM-DIAMOND PhD fellowship, part of the European Union’s Horizon Europe research and innovation programme. His joint/double PhD journey starts at Luiss Guido Carli University in Rome and continues at iCourts, the Danish National Research Foundation's Centre of Excellence for International Courts, at the University of Copenhagen. In addition, his academic experience is enriched by a stage at the International Federation for Human Rights (fidh) in Brussels during the last year of the fellowship. His thesis is supervised by Professor Giovanni Piccirilli, from Luiss University, and Professor Mikael Madsen, from the University of Copenhagen.
Pedro holds a Bachelors of Laws (LLB) from the University Carlos III de Madrid, and a "European Public Law & Governance" Masters of Laws (LLM) from the European Law School of Maastricht University. Prior to joining the GEM-DIAMOND PhD programme, Pedro was a Policy Advisor on EU law for the President of Equipo Europa, a Europeanist and non-partisan youth association with the aim of promoting the European Union among young people and encouraging youth political participation, and was part of the United Nations and International Law Society of Carlos III University (ANUDI), being the first director of "El Relator", a university legal journal focused on International Law and International relations, apart from doing a few internships in various law firms and the Spanish Ministry of Agriculture.
His academic interests are centred on various areas of EU law: the constitutional aspects of the Union´s law; the connection between EU and national law, the construction of the EU polity, the rule of law, the general principles and the protection of fundamental rights among others; the Law of the Economic and Monetary Union, including the banking union, the Law of the Common Commercial policy and International Trade and Investment Law.
Pedro holds a Bachelors of Laws (LLB) from the University Carlos III de Madrid, and a "European Public Law & Governance" Masters of Laws (LLM) from the European Law School of Maastricht University. Prior to joining the GEM-DIAMOND PhD programme, Pedro was a Policy Advisor on EU law for the President of Equipo Europa, a Europeanist and non-partisan youth association with the aim of promoting the European Union among young people and encouraging youth political participation, and was part of the United Nations and International Law Society of Carlos III University (ANUDI), being the first director of "El Relator", a university legal journal focused on International Law and International relations, apart from doing a few internships in various law firms and the Spanish Ministry of Agriculture.
His academic interests are centred on various areas of EU law: the constitutional aspects of the Union´s law; the connection between EU and national law, the construction of the EU polity, the rule of law, the general principles and the protection of fundamental rights among others; the Law of the Economic and Monetary Union, including the banking union, the Law of the Common Commercial policy and International Trade and Investment Law.
Throughout the three years of my PhD, I have remained consistently engaged in academic life through a range of research activities, training programmes, and scholarly events across Europe, as part of my doctoral journey under the Marie Skłodowska-Curie GEM-DIAMOND PhD Fellowship (Horizon Europe).
My joint PhD is carried out between Luiss Guido Carli University and iCourts – Centre of Excellence for International Courts at the University of Copenhagen. During the final year of the fellowship, I undertook a professional research stage at the International Federation for Human Rights (FIDH) in Brussels, further connecting my academic research with policy and practice.
As part of my doctoral training and scholarly development, I have actively participated in numerous international conferences, doctoral seminars, workshops, and summer schools, including:
- EU Doctoral Seminar on European Constitutional Identity, Vienna University of Economics and Business (May 2025)
- Annual GEM-DIAMOND Conferences: Paris 1 Panthéon-Sorbonne (Feb 2025), LUISS Rome (Mar 2024), Brussels (Mar 2023)
- Conference on the GEM-DIAMOND Edited Volume, Université de Genève (Jan 2025)
- Workshops on Dissensus over Liberal Democracy and the GEM-DIAMOND Handbook, ULB Brussels (Oct 2023, Oct 2024)
- ICON·S Annual Conference, IE University, Madrid (July 2024)
- GEM-DIAMOND Summer School, ULB Brussels (June 2024)
- Online Conference on Separation of Powers, University of Amsterdam (June 2023)
- 2nd Methods Workshop, University of Amsterdam (June 2023)
- iCourts PhD Summer School, University of Copenhagen (June 2023)
- YELS Conference, Maastricht University (June 2023)
- EUIA Conference, Brussels (May 2023)
- 2nd Citizen Innovation Lab on Impact and Social Science, ULB Brussels (May 2023)
- Interdisciplinary Methods Workshop, University of Copenhagen (April 2023)
- ICON·S Writing School (Feb–Mar 2023, hybrid format)
- AGORA Forum, Babeș-Bolyai University, Cluj-Napoca (Jan 2023)
- Kick-Off GEM-DIAMOND Conference, ULB Brussels (Oct 2022)
These activities have allowed me to present my work, receive feedback from leading scholars, and strengthen the interdisciplinary and comparative dimensions of my research on constitutional pluralism, judicial review, and EU integration.
My joint PhD is carried out between Luiss Guido Carli University and iCourts – Centre of Excellence for International Courts at the University of Copenhagen. During the final year of the fellowship, I undertook a professional research stage at the International Federation for Human Rights (FIDH) in Brussels, further connecting my academic research with policy and practice.
As part of my doctoral training and scholarly development, I have actively participated in numerous international conferences, doctoral seminars, workshops, and summer schools, including:
- EU Doctoral Seminar on European Constitutional Identity, Vienna University of Economics and Business (May 2025)
- Annual GEM-DIAMOND Conferences: Paris 1 Panthéon-Sorbonne (Feb 2025), LUISS Rome (Mar 2024), Brussels (Mar 2023)
- Conference on the GEM-DIAMOND Edited Volume, Université de Genève (Jan 2025)
- Workshops on Dissensus over Liberal Democracy and the GEM-DIAMOND Handbook, ULB Brussels (Oct 2023, Oct 2024)
- ICON·S Annual Conference, IE University, Madrid (July 2024)
- GEM-DIAMOND Summer School, ULB Brussels (June 2024)
- Online Conference on Separation of Powers, University of Amsterdam (June 2023)
- 2nd Methods Workshop, University of Amsterdam (June 2023)
- iCourts PhD Summer School, University of Copenhagen (June 2023)
- YELS Conference, Maastricht University (June 2023)
- EUIA Conference, Brussels (May 2023)
- 2nd Citizen Innovation Lab on Impact and Social Science, ULB Brussels (May 2023)
- Interdisciplinary Methods Workshop, University of Copenhagen (April 2023)
- ICON·S Writing School (Feb–Mar 2023, hybrid format)
- AGORA Forum, Babeș-Bolyai University, Cluj-Napoca (Jan 2023)
- Kick-Off GEM-DIAMOND Conference, ULB Brussels (Oct 2022)
These activities have allowed me to present my work, receive feedback from leading scholars, and strengthen the interdisciplinary and comparative dimensions of my research on constitutional pluralism, judicial review, and EU integration.
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Revisiting Madrid: Personal Reflections and Academic Debates at the ICON·S 2024 Annual Conference
18 July 2024
A GEM-DIAMONd fellows impressions from the 10th Annual Conference of the International Society of Public Law (ICON·S)
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Making Sense of the Growing Use of Litigation Over the Fundamental Values of the European Union
21 September 2023
Some Ideas for Research Agenda Combining Doctrinal Law and Empirical Legal Studies
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Birth of the GEM-DIAMOND Fellowship of the Ph.D.
1 October 2022
16 MSCA Fellows successfully selected following a gruelling selection process.