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The BVerfG deserves harsh words for its PSPP verdict. However, AG Tanchev seems to be carrying it a bit far. 
1/ https://twitter.com/eucourtpress/status/1339505264072994816
1/ https://twitter.com/eucourtpress/status/1339505264072994816
Admittedly, Tanchev voices the concerns shared by many colleagues worried about democracy in Europe, especially (but not only) in CEE countries. A fact blatantly ignored by the BVerfG. 2/
However, it is too much to try to safeguard the rule of law by enforcing some kind of EU law monism. Rather, I believe the contrary is true. 3/
The rule of law principle as stipulated in Art. 2 TEU is a *principle*. It allows for some variation from one MS to the other. It is therefore based on the very idea of constitutional pluralism. Violations need to reach the level of principle, i.e be of a structural kind. 4/
Is the Maastricht-Honeywell-etc case law a structural violation of the RoL? Only if judicial dialogue persistently does not work. As PSPP has been a one-time accident so far, it is hard to make that point. 5/
The argument that PSPP violates member state equality boils down to an argument about enforcement, see https://www.cambridge.org/core/journals/german-law-journal/article/is-the-primacy-of-eu-law-based-on-the-equality-of-the-member-states-a-comment-on-the-cjeus-press-release-following-the-pspp-judgment/D3B62401E6ECF79BB01ED4FF00C3BE19 6/
Is the full enforcement of the law, which denies rare, reasoned dissent, a requirement of the rule of law? I think the contrary is true, as the rule of law in the European constitutional compound is pluralistic by nature, see above. 7/
So letâs not mix up the rule of law with the rule by law. See https://www.cambridge.org/core/journals/german-law-journal/article/constitutional-pluralism-and-authoritarianism/82351410D0BE416FB06146436D8103D2 8/
Having said that, I should repeat that I do not defend the BVerfG for its PSPP disaster. It was, is, and remains wrong. But mostly for politico-economic reasons. More on this here: https://www.cambridge.org/core/journals/german-law-journal/article/european-economic-constitution-after-the-pspp-judgment-towards-integrative-liberalism/25E413E82097B154D3A4D6017CF883ED 9/
But I am prepared to die on the hill that there is no conflict between constitutional pluralism and the rule of law. The latter necessitates space for reasoned dissent. 10/
I would even go one step further and claim that constitutional pluralism is ultimately an important aspect of the balance of power and strengthens militant democracy. 11/
By contrast, the argument for constitutional monism and absolute enforcement tastes bittersweet from the AGâs mouth given the EUâs own democratic shortcomings for which the court has had no words, ratifing the worst forms of externally imposed austerity. 12/
(The argument for the absolute authority of EU law does not get better by the AG citing the courtâs own president Lenaerts on a crucial point in his conclusions, btw.) 13/
Baseline: In the 21st century, there is hardly any level of government and any institution that may claim moral or ethical superiority over others. Vigilance is the order of the day, and constitutional pluralism its adequate form. 14/14
