Abstract
Constitutional identity appears as an increasingly frequent argument in the case law of constitutional courts in Europe. For many authors, it is a way to initiate dialogue with the European Union on equal terms. In this article, we argue that dialogue is not always a source of harmony, because the terms of the interaction are not exactly the same in Luxembourg and in the member states of the European Union. The Court of Justice of the European Union interprets the national identity of the member states in a way that is not always similar to the content given by the States to their constitutional identity. As a consequence, constitutional identity may allow the Member States to strengthen the specificity of their constitutional rules and, in turn, weaken the unity of European constitutionalism. Far from being an Esperanto, constitutional identity rather appears as the new legal Babel in Europe.
1 Introduction
In the biblical tradition, the city of Babel symbolises, as is well known, the theatre of man's disobedience to God. By building a tower that would be so high that it could touch the sky, men defied God and in return they were punished. While they all spoke the same language, ‘the Lord confused the language of the whole world’1 so that they could no longer understand each other, and he scattered them over the face of the whole earth.
Naturally, one may be surprised at first and wonder what the connection is between the Tower of Babel and constitutional identity in the context of the European Union (hereinafter EU). Can what is sometimes presented as a mere myth shed light on a real legal phenomenon of the 21st century? A few elements need to be clarified in order to answer such a question.
First of all, what does the term ‘constitutional identity’ encompass? Are we talking about the concept, the norm, the notion, or the argument?
the transposition of a Directive cannot run counter to a rule or principle inherent to the constitutional identity of France, except when the constituting power consents thereto.3
interprets the concept of constitutional identity as Hungary’s self-identity and it unfolds the content of this concept from case to case, on the basis of the whole Fundamental Law and certain provisions thereof, in accordance with the National Avowal and the achievements of our historical constitution – as required by Article R) (3) of the Fundamental Law.7
The protection of the constitutional identity and Christian culture of Hungary shall be an obligation of every state organ (Art. R.4).
Every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development. Hungary shall protect the right of children to a self-identity corresponding to their sex at birth and shall ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of our country.
From the point of view of the European Union, the term ‘constitutional identity’ is not used in the treaties. Article 4.2 of the EU Treaty – in its wording resulting from the Lisbon Treaty and taken from the aborted Treaty establishing a Constitution for Europe – enshrines ‘national identity’, even though it is linked to the fundamental political and constitutional structures of the member states.8 The Court of Justice of the European Union (hereinafter CJEU) thus takes constitutional identity into account when confronted with the argument of constitutional identity as raised by the member states.
This paper will therefore focus on the notion or normative concept of constitutional identity. More specifically, attention will be paid to the use of the concept and the way in which both national and supranational speakers construct the concept to enable it to attain the status of a norm. We will disregard the concept of constitutional identity from the point of view of legal science or as a meta-concept, which would thus correspond to the common content of the different conceptions of constitutional identity in the different states and would have a cognitive purpose, i.e. the knowledge of positive law.
Secondly, it is important to consider the legal issues raised by constitutional identity in the framework of the European Union. However, the reflection on constitutional identity is not restricted to the EU context. The Council of Europe is not immune to it either, as the argument is also used in non-EU states, such as Russia. The Constitutional Court of Russia, for example, initially developed the notion of constitutional identity, starting in 2015, with regard to the execution of the European Court of Human Rights decisions that contradict the Russian Constitution.9 The dynamics that can be observed within the two Europes – both the Council of Europe and the European Union – have therefore common points, insofar as in both cases the articulation between the legal orders is at stake, even if the stakes remain distinct because the logic of integration specific to the European Union cannot be assimilated to the logic of cooperation inherent to the Council of Europe. And the evolution of the use of the ‘constitutional identity’ argument in Russia to counter international law invites reflection on the possible drifts of a similar use.10
In France, as in most European states, constitutional identity has emerged in the context of the relationship with the EU legal order and has frequently been analysed as fulfilling a function of ‘shield’11 or bulwark against European norms. In fact, the ‘constitutional identity’ argument is not used by national courts and states in a neutral way, but is constructed or tailored, and this is one of the major differences from national identity. As for national identity, even if it can be reconstructed or even idealized, it is anchored in a historical heritage. The values and traditions rooted in a state's history become constitutional values through an operation of legal qualification, and as such these values and traditions contribute to conferring an identity on the Constitution. This is how the ‘identity of the Constitution’ in the sense of what is specific to a State emerges and allows it to be distinguished from others. ‘Constitutional identity’ in the sense of the argument mentioned above is quite different, even if the content given to it is sometimes superimposed on or is rooted in the national identity; legally speaking, it is born from the interaction and the relationship with the EU.
For its part, the European Union, as a supranational entity born in the 20th century, has to build everything itself: its present but also its future, and it must do so by relying on the member states. Since its birth, the construction of a ‘European identity’ has been nourished by the interaction with the States and by a history of its own, which is only 70 years old.
These two ‘parallel histories’ help further the understanding that the construction of a constitutional identity is, to a certain extent, biased, because the aims of the exchange are not the same. The logic of integration, pursued by the European Union, sometimes clashes with the logic of the tradition specific to the state point of view.
Therefore, it appears that far from being an Esperanto or a common language shared in Europe, constitutional identity is an ambiguous argument, used strategically and which can weaken the unity of the European legal order, opening the way to a new Babel, i.e. a plurality of discourses generating confusion and cacophony. In the first part of the paper, we will focus on the complex construction of constitutional identity and the difficulties of communication that it gives rise to (2). In the second part, we will discuss the constitutional implications of such a difficult dialogue between the States and the European Union (3).
2 The two-voice construction of constitutional identity
Although constitutional identity seems to be a shared concept (2.1), in reality the states and the European Union are not speaking the same language (2.2).
2.1 An apparent dialogue between the European Union and its member states
On the surface, the vocabulary is similar, but de facto the content of constitutional identity is not the same, depending on the speaker – either the member states or the European Union – because its use serves different purposes.
- 1.The first decisions of the Constitutional Courts establishing constitutional identity clearly reflect the aim of protecting and defending state specificity. It is about guaranteeing ‘one's’ own identity against EU law. This can be seen in the background of the case law of the German Constitutional Court, for example, or of the Polish Constitutional Court on the Lisbon Treaty.
whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 third sentence in conjunction with Article 79.3 of the Basic Law12 is respected.
the obligation under European Law to respect the constituent power of the Member States as the masters of the Treaties corresponds to the non-transferable identity of the Constitution, which is not open to integration in this respect.13
constitutional identity is a concept which determines the scope of “excluding – from the competences to confer competences – the matters which constitute (…) ‘the heart of the matter’, i.e. are fundamental to the basis of the political system of a given state” (cf. Działocha, op. cit. s.14), the conferral of which would not be possible pursuant to article 90 of the Constitution.
According to the Court, the list should include the requirement of protection of human dignity and constitutional rights, the principle of statehood, the principle of democratic governance, the principle of a state ruled by law, the principle of social justice, the principle of subsidiarity, as well as the requirement of ensuring better implementation of constitutional values and the prohibition to confer the power to amend the Constitution and the competence to determine competences. The Polish Court considers that constitutional identity remains in a close relation with the concept of national identity, which also includes tradition and culture.
A vital characteristic of the culture of European integration is mutual loyalty between the Member States and the Union, which they cherish. European integration proves its value, providing balance between modernity, which is indispensable in the contemporary world, and the preservation of national traditions based on a supranational cultural community.
- 2.From the European Union perspective, the aim is to include the member states, considered as a whole, both to reassure them and to strategically build its own identity. Not insignificantly, the term ‘constitutional identity’ appeared at the time of the Treaty establishing a Constitution for Europe, in order to give the EU a ‘European’ identity. The failure of the European Constitution led to the abandonment of the term, even though the older idea of a European constitutional law, which emerged in the 1980s, has endured. The expression ‘constitutional identity of the member state’ then mainly appeared in the writings of several advocates general. The words of Miguel Poiares Maduro in his conclusions on the Michaniki case are worth remembering in this regard:
It is true that the European Union is obliged to respect the constitutional identity of the Member States. That obligation has existed from the outset. It indeed forms part of the very essence of the European project initiated at the beginning of the 1950s, which consists of following the path of integration whilst maintaining the political existence of the States. […] The national identity concerned clearly includes the constitutional identity of the Member State.17
Even if the adjective ‘national’ was preferred to ‘constitutional’, the presence of identity in the European treaties is thus the means of tracing the contours of an integration based on a principle of mutual trust between the EU and the states.
The Court of Justice has also given States clear signs of its willingness to include everyone while respecting diversity. Several famous decisions bear witness to this approach. We can quote the Omega decision of 2004,18 in which the Luxembourg Court took into account the constitutional argument of human dignity put forward by the German Federal Administrative Court (Bundesverwaltungsgericht) in order to limit the freedom to provide services (in this case the commercial exploitation of homicide simulation games). After the entry into force of the Lisbon Treaty, in the Sayn-Wittgenstein case of 2010, the Court also agreed to limit the freedom of movement and residence of persons within the EU, taking into consideration the bill on the abolition of nobility, which has constitutional value. The latter was presented by Austria as an instrument to safeguard its constitutional identity and to serve the principle of equality.19 The Luxembourg Court followed this position and accepted it as an element of Austria's national identity, thus justifying the prohibition of the use of aristocratic particle names.
Communication and interaction are thus made possible by an effort of dialogue between judges trying to reach a conciliation, but the effort to engage in dialogue has its limits.
2.2 The risk of misunderstanding
- 1.Indeed, the position of the CJEU is not ‘fixed’ and univocal. Sometimes it validates the argument of constitutional/national identity put forward by the states and sometimes it rejects it, even though the stakes seem to be more important regarding the ‘fundamental political and constitutional structures’, as mentioned by the EU Treaty. Thus, in the Sayn-Wittgenstein case about the use of noble titles, the Luxembourg Court considered that
the law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.20
On the other hand, in 1996, in a case involving the Grand Duchy of Luxembourg, the Court refused to accept that the preservation of national identity could justify restricting the access of nationals of other Member States to certain civil servants' or public employees' posts in Luxembourg.21 The Luxembourg government argued that the Luxembourg nationality of teachers was necessary in order to transmit traditional values and that, given the size of the country and its specific demographic situation, the nationality requirement was therefore an essential condition for preserving Luxembourg's national identity. The Court of Justice rejected the argument, considering that ‘the protection of national identity cannot justify exclusion of nationals of other Member States from all the posts in an area such as education’.22 The answers given by the Luxembourg Court are logical from the point of view of the goal of freedom of movement of persons – which is at the heart of the European project –, but are they really logical from the ‘identity’ perspective? No matter what, they are not fully convincing…
- 2.Furthermore, the components of national identity – as a European concept – do not cover the components of national identity – as a constitutional concept.
the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities
enshrined in Article 2 of the Treaty on the European Union.
familiarize itself with the constitutional identity of the Czech Republic, which it draws from the common constitutional tradition with the Slovak Republic, that is from the over seventy years of the common state and its peaceful dissolution, i.e. from a completely idiosyncratic and historically created situation that has no parallel in Europe 25
It is therefore the CJEU's ignorance of Czech history and reality that was vigorously denounced by the Czech Constitutional Court. And the lethal weapon was constitutional identity. This extremely tense moment finally reached a happy ending with the adoption by the Czech legislator of a new ‘EU law compatible’ text and is, according to Ondrej Hamulák, more the result of emotion than of a real war between the Czech Constitutional Court and the Court of Justice of the European Union.26
As demonstrated above, the constitutional identity argument can sometimes be at the origin of a constructive dialogue between the Court of Justice of the European Union and the national courts and, in so doing, promote European integration in a concerted manner. But it can also potentially lead to a certain cacophony in Europe and have a ‘boomerang’ effect on constitutional law itself and constitutionalism in Europe.
3 The unexpected effects of constitutional identity on constitutionalism in Europe
Beyond the misunderstanding, the double language of constitutional identity presents a long-term risk for the unity of the European Union itself and its integration project. Constitutional identity in fact leads to the strengthening of the authority of national constitutional law (3.1) and is likely to weaken European constitutionalism (3.2).
3.1 The de facto consolidation of the constitutional law of the member states
Because of the indeterminacy of its content, the concept of constitutional identity enables the states to develop a whole range of instruments that go beyond the classic constitutional reservations (‘réserves de constitutionnalité’) based on fundamental rights protection and that can be opposed to European Union law. Tradition then clashes with integration, while the technique of ‘identity review’ allows constitutional courts to limit the transfer of powers to the European Union.
- 1.Several constitutional courts have developed a legal argumentation based on ‘constitutional values’, which, in their case law, have gradually become part of the constitutional identity of the state. The semantic issues are by no means neutral in this context. This is what is currently happening in Poland and Hungary, for example, though the path was paved in the 1950s by Germany. By resorting to constitutional values, some constitutional courts are standing up as guardians of tradition.
But far from being a value-free system, the Constitution erects an objective system of values (eine objektive Wertordnung) in its section on basic rights, and thus expresses and reinforces the validity of the basic rights. This system of values, centring on the freedom of the human being to develop in society, must apply as a constitutional axiom throughout the whole legal system: it must direct and inform legislation, administration, and judicial decision.
The values being expressed in the Constitution and the Treaty of Lisbon determine the axiological identity of Poland and the European Union. The draft of economic, social and political systems contained in the Treaty, which stipulates the respect for dignity and freedom of the individual, as well as respect for the national identity of the Member States, is fully consistent with the basic values of the Constitution, confirmed in the Preamble of the Constitution, which includes the indication of historical, traditional and cultural context that determines national identity, which is respected in the EU within the meaning of Article 4(2) of the Treaty on European Union. These values include the most important aims which the Constitution serves, i.e. the concern for ‘the existence and future of our Homeland’28
The very nature of values is that they confer a wide margin of appreciation on constitutional judges. Analysing German case law, Ernst-Wolfgang Böckenförde considered in 2000 that the reference to a system of values, rooted in Rudolf Smend's theory of integration, meant ‘a camouflage formula for judicial decisionism’.29
The constitutional self-identity of Hungary is not a list of static and closed values, nevertheless many of its important components – identical with the constitutional values generally accepted today – can be highlighted as examples: freedoms, the division of powers, republic as the form of government, respect of autonomies under public law, the freedom of religion, exercising lawful authority, parliamentarism, the equality of rights, acknowledging judicial power, the protection of the nationalities living with us. These are, among others, the achievements of our historical constitution, the Fundamental Law and thus the whole Hungarian legal system are based upon them30.
However, the danger is present and lurks behind what Gábor Halmai calls an ‘abuse of constitutional identity’ which, in his view, amounts to a ‘national constitutional parochialism’.31 The express inclusion of constitutional identity in the Constitution in 2018, in its Article R.4, has indeed completed the edifice.
resides in the totality of historical, cultural and societal factors that are reflected in the law. [It is] a dialogical process which is a set of beliefs or ideas anchored in the historical past of each nation, which are reinterpreted in each new era.33
Transposed to the framework of the European Union, such an approach would allow certain States to give rights and freedoms a very specific dimension, either influenced by the primacy of the collective over the individual when considering social rights, or influenced by religion when considering individual freedoms.
- 2.In addition to this protective dimension of a certain conception of society and its rights and freedoms, constitutional identity is also an instrument in the hands of the states to monitor European Union law. The Karlsruhe Court has thus developed a constitutional identity review that is in line with the Solange case law or the Italian theory of counter-limits (contro-limiti) as developed in the field of fundamental rights. The German Court examines whether European Union law respects the ‘inviolable core content of the constitutional identity’ pursuant to Article 23.1 third sentence in conjunction with Article 79.3 of the Basic Law,34 i.e. the famous ‘eternity guarantee’. In parallel, it has also developed an ultra vires review which allows it to check that the European institutions do not transgress the boundaries of their competences as conferred by the treaties. It reserves the right to declare inapplicable in Germany a legal act of the EU that exceeds its competences.35 For the Court, the preservation of the foundations on which the division of competences in the European Union is based is of paramount importance for the guarantee of the principle of democracy,36 a principle that forms part of the core of the constitutional identity, along with human dignity, the rule of law and the social and federal state.
As Francesco Martucci rightly points out, identity review and ultra vires review are constitutional limits to European Union law which, depending on the country, may be representative of very different dynamics:37 either a constructive logic of legal system relations, or a more destructive logic, symbolic of a rupture with the European Union. So far, in Germany, the Constitutional Court has not yet found any violation of the constitutional identity. Moreover, before any finding of ultra vires can be made, a dialogue must be established with the Luxembourg Court, to which a preliminary question has been referred. Similarly, in France, constitutional identity is employed in an ad hoc and ultimately technical manner, as shown by the recent decision of the Constitutional Council of October 15th 2021. In the latter, referring to Article 12 of the Declaration of the Rights of Man and of the Citizen of 1789, the French constitutional judge ruled that the prohibition of delegating to private entities the general administrative police powers constitutes an inherent principle of France's constitutional identity. But on the one hand, this allows the Council to emphasise the fact that only the Luxembourg Court, in a preliminary ruling, has the competence to review the respect of fundamental rights by a European directive or regulation; on the other hand, the above mentioned principle is unlikely to conflict with one of the values enshrined in Article 2 of the TEU. Therefore, such a decision clearly illustrates the relationship of cooperation that exists between the national judge and the European judge and, more broadly, the desire to maintain ‘coherence between the internal legal order and the legal order of the European Union’.38
Although constitutional identity and the identity review carried out by the constitutional courts are currently instruments in favour of congruence in most European states, this is not the only use that can be made of them… The recent legal evolutions in Poland call for caution. Indeed, this new identity-related constitutional reservation may lead to a weakening of European constitutionalism.
3.2 The possible weakening of European constitutionalism
Many authors have thought of a constitutionalism beyond the state.39 Thus, even without a formal constitution, the European Union gives rise to a European constitutionalism, in the sense proposed by Georg Nolte, namely ‘the fundamental rules and the identity, or better the self-understanding (Selbstverständnis) of any political community’40. European constitutionalism could therefore be defined, among other things,41 by the values enshrined in Article 2 of the Treaty on European Union: the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights.
- 1.However, national constitutional identity, through its normative effects, can undermine the integration process and, by extension, the unity of European constitutionalism. Recently, the latter has seen its foundations challenged and eroded. By proposing a different reading of European values under the influence of the identity argument, certain states are giving rise to an ‘other constitutionalism’ that departs from ‘liberal’ constitutionalism. Should it be described as illiberal or concurring? Whatever adjective is chosen, it is a reality over which the European Union has little control because the main legal instrument at its disposal to defend the values of Article 2 TEU – namely Article 7 TEU – implies a unanimous vote to trigger repressive measures (Art. 7.2) and therefore a real and not merely assumed European identity. Moreover, in case of a conflict with European values, constitutional identities protected at the national level are currently prevailing, because in the current state of the law and the European project, the principle of the primacy of European Union law is not sufficient to make the states surrender and give up their legal arms embodied in the principle of the supremacy of the Constitution. Some countries have perfectly understood the power of constitutional law and the limits of the European system. In certain areas where competences are shared – such as human rights or the rule of law – the states claim competence and the symbolic proclamation of ‘values’ in Article 2 TEU is not sufficient to prevail over the democratic legitimacy wielded by the states.42
the Luxembourg Court counters with the same weapon – identity – considering that ‘the values contained in Article 2 TEU have been identified and are shared by the Member States’ and as a consequence ‘they define the very identity of the European Union as a common legal order’.49 It is therefore in the name of constitutional pluralism that the common and liberal foundations of the European Union can be undermined.having regard to the obligation to ‘protect’ the national identity of the Member States, it must be possible for the rule of law and the principles of the rule of law to be assessed differently in each of the Member States, particularly as the EU institutions do not always assess different legal situations uniformly,48
- 2.Finally, more than the definition of what constitutional identity would be, what is important for lawyers it is what is hidden behind identity, and in particular what it says about the relations between the European Union and the states. Of course, today's existing tension between Poland and Hungary and the European Union is not just about a legal issue. The stakes are eminently political. Beyond the Hungarian and Polish examples, other voices – from political leaders – are being heard in Europe promoting a possible constitutional reform to give precedence to the Constitution over EU law50. Regularly, legal arguments are exploited by politicians and identity is associated with the superiority of the Constitution over EU law.
Also, the constitutional courts themselves may echo the political will and rhetoric. Constitutional case law shows that another argument is never very far away from identity: sovereignty also regularly appears in the decisions of the constitutional courts. In the aforementioned decision of the Hungarian Constitutional Court of November 30th 2016, the Court states that the protection of Hungary's constitutional identity and sovereignty, which are the two main limitations upon the joint exercising of competences – and thus the grounds for ultra vires review51 – are linked in many respects52 and their review should be performed with due regard to each other in specific cases. Not surprisingly, in 2016, Viktor Orbán's government justified its non-alignment with EU immigration law by referring to the defence of national sovereignty. The link between identity and national sovereignty is also very close in Poland, to the point that one might wonder whether sameness has not been abandoned in favour of ipseity.53 These trends inevitably have consequences and affect European constitutionalism.
4 Conclusion
A few words to conclude. Today, constitutional identity stands as a legal argument that is strategically exploited by states. Although it is an astute substitute for the argument of state sovereignty, it remains a challenge to be taken seriously. First of all, the argument is quite easy to use because of its adaptation to the specificities of the States; secondly, it can create cacophony and threaten European harmony. Only dialogue between the national constitutional courts and the Luxembourg Court will make it possible to end the stalemate, but on the condition that the domestic political context allows it… In France, perhaps, constitutional identity is not to be feared,54 but confronted with other political realities, the abuse of constitutional identity could be dangerous for the European project.55
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Decision n°2006-540 DC of 27 July 2006, Copyright and related rights in the information Society, § n°19.
Decision n°2021-940 QPC of 15 October 2021, Société Air France. The Constitutional Council received an application for a priority preliminary ruling on the issue of constitutionality related to the compliance of several articles of the Code for Entry and Residence of Foreigners and Right of Asylum (CESEDA) which aimed to transpose a European directive and provided that the air or maritime transportation company is required to return the foreign national who is not a national of an EU Member State if he/she is refused entry into French national territory. The Council declared that the provisions conformed to the Constitution but mentioned that they do not have the purpose nor the effect of making the companies responsible for the monitoring of the person to be returned, such measure solely being within the competence of the police authorities. Consequently, a captain could disembark a person who presents a danger to the safety, health, hygiene or the orderly operation of the aircraft.
Troper (2015) 277.
Decision of the Constitutional Court of Hungary, n°22/2016 (XII. 5.) AB on the interpretation of article E) (2) of the Fundamental Law, 30 November 2016. What was at stake in the background of the judgment was a decision of the Council of the European Union n°2015/1601 of 22 September 2015 on the relocation of 1294 asylum seekers from Italy and Greece to Hungary.
See § 64 of the decision.
According to Article 4.2 of the EU Treaty, ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State’. [Emphasis added]
Baudoin and Filatova (2016) 1747–48. In its decision of July 14th, 2015 (N°21-P), the Constitutional Court calls on the Strasbourg Court to engage in dialogue, considering that ‘the effectiveness of the norms of the European Convention in the domestic legal orders largely depends on the respect of the national constitutional identity of the Member States.’
See Zoteeva and Kragh (2021) 176–95.
Rousseau (2011) 89–100.
According to this article, ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible’.
Decision by the Constitutional Court of Germany on the Treaty of Lisbon, 30 June 2009, § 234.
Decision K 32/09, 24 XI 2010, Treaty of Lisbon. In this decision, the Polish Constitutional Tribunal refers for the first time to constitutional identity (tożsamość konstytucyjna).
In German, Europarechtsfreundlichkeit; and zasady przychylności procesowiintegracji europejskiej in Polish.
See Hamulák (2016) 67 and following.
Opinion of the Advocate-General Miguel Poiares Maduro delivered on 8 October 2008 in the Michaniki case (Case C-213/07), (§ 31).
CJEC, 14 October 2004, Omega, Case C-36/02.
CJEU, 22 December 2010, Sayn-Wittgenstein, Case C-208/09. See § 74.
CJEU, 22 December 2010, Sayn-Wittgenstein, Case C-208/09 § 83.
CJEC, 2 July 1996, Commission of the European Communities v. Grand Duchy of Luxembourg, Case C-473/93.
CJEC, 2 July 1996, Commission of the European Communities v. Grand Duchy of Luxembourg, Case C-473/93 § 36.
Czech Constitutional Court, Judgment of 31 January 2012, Slovak pensions XVII, PL. ÚS (5/12). In this decision, also known as the Holubec case, the Czech Constitutional Court scrutinized the decision of the Court of Justice of the European Union adopted on June 22, 2011, in which the Luxembourg Court considered that the Czech Constitutional Court judgment discriminates, on the ground of nationality, between Czech nationals and the nationals of other member states. The Czech Court considered that in that case ‘there were excesses on the part of a European Union body’.
CJEU, 22 June 2011, Marie Landtová c/Česka sprava socialniho zabezpečeni, Case C-300/09.
CJEU, 22 June 2011, Marie Landtová c/Česka sprava socialniho zabezpečeni, Case C-300/09 § 7.
Hamulák (2016) 72.
Federal Constitutional Court, 15 January 1958, BVerfGE 7, 198 [1958], Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz.
Polish Constitutional Tribunal, Case n°K 32/09 (Treaty of Lisbon), § III.2.2.
Böckenförde (2000) 267.
Constitutional Court of Hungary, 22/2016 (XII. 5.) AB, 30 November 2016, §65.
Halmai (2018) 42.
Zorkin (2017) 12.
German Constitutional Court, BVerfg, 30 June 2009, Treaty of Lisbon.
See Langenfeld (2019).
BVerfG, 6 juillet 2010, Honeywell, 2 BvR 2661/06.
At least if one considers the political identity of the European Union. But one could also add the freedoms of movement if one were to consider the economic identity of the Union.
On this issue, see the very convincing article by Allezard (2017) 255–85.
Constitutional Tribunal of Poland, judgment K 3/21, 7 October 2021.
In a Grand Chamber judgment, A.B. and Others v Krajowa Rada Sądownictwa (C-824/18), the CJEU ruled that successive amendments to the National Council of the Judiciary Act had the effect of removing effective judicial protection of Council decisions presenting candidates for positions as judges at the Supreme Court to the President of the Republic and were likely to breach EU law. According to the Court of Luxembourg: ‘the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law’.
CJEU, 16 February 2022, C-156/21 Hungary v. Parliament and Council; C-157/21 Poland v. Parliament and Council.
Already in 2018, when the Article 7 TEU procedure was launched, Poland's Foreign Minister Konrad Szymański defended the judicial reform that had taken place in his country by arguing that the rule of law has many faces in the European Union. He declared: ‘We'll present the true state of judicial reforms and show that they're compatible with European standards. Rule of law is implemented in the union in various ways, the member states have different constitutional traditions and Poland is located in this constitutional pluralism of the European Union.’ Brzozowski (2018).
§ 211.
§ 127 and 232.
During the 2019 European elections, Lega Nord, Matteo Salvini's party, reaffirmed its will to ‘underline the common Christian roots, defend national identity and the supremacy of the Italian Constitution over European laws and directives’.
Decision of the Constitutional Court of Hungary, n°22/2016 (XII. 5.) AB on the interpretation of article E) (2) of the Fundamental Law, 30 November 2016, § 54.
According to the Court, ‘constitutional identity cannot be waived by way of an international treaty – Hungary can only be deprived of its constitutional identity through the final termination of its sovereignty, its independent statehood. Therefore, the protection of constitutional identity shall remain the duty of the Constitutional Court as long as Hungary is a sovereign State.’ (§ 67)
On Poland see Sledzinska-Simon and Ziólkowski (2020) 243–67.
Millet (2020) 134–52.
See Kosar and Vyhnánek (2020) 112–13; Scholtes (2021) 534–56.
