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National Identity, Constitutional Identity, and Sovereignty in the EU

Tijdschriftbijdrage - Tijdschriftartikel

It is commonplace in European constitutional practice and theory to use the terms ‘national identity’ and ‘constitutional identity’ interchangeably. On the one hand, several Advocates General to the European Court of Justice have employed the concept of ‘constitutional identity’ to delineate what is protected under Article 4(2) TEU, even though, strictly speaking that Treaty provision refers to the Member States’ national identities, inherent in their fundamental structures. On the other hand, certain domestic constitutional courts which present themselves as the ultimate defenders of the identity of their constitution have pointed to Article 4(2) TEU to legitimate their assumed power to review secondary EU law against their constitutional identity. Against this background, it should not be a surprise that, also in academic commentary, there is a strong tendency to equate national with constitutional identity. This article swims against the tide. It defies the conflation of national and constitutional identity prevalent in European constitutionalism. To this end, it makes three central points. First, it is submitted that the said conflation is not founded on a solid theory of legal interpretation. Second, this paper advances the argument that the obligation to respect the national identities of the Member States, as enshrined in Article 4(2) TEU, rests on different normative assumptions than the claim, made by certain constitutional courts, that European law must comply with constitutional identity for it to be applicable in the domestic legal order. Whereas the Union’s obligation to pay heed to national identity is grounded in a liberal concern for the respectful treatment of the members of a multinational political community, the constitutional courts’ preoccupation with constitutional identity rests on a particular conception of sovereignty. In other words, the demands for respect for national and constitutional identity are informed by distinct theoretical narratives. Third, it is argued that the Treaty makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity, for that matter. The Treaties’ focus on national identity should therefore be embraced and taken seriously.
Tijdschrift: Netherlands journal of legal philosophy
ISSN: 2213-0713
Issue: 2
Volume: 45
Pagina's: 82 - 98
Jaar van publicatie:2016