2.1 Unexpected

The very idea of institutional identity did not impose itself as a necessary concept, to the point that it does not appear as such in any of the original texts of the Member States' constitutions. Until now, Constitutions were considered sufficient to identify a system, even if their ‘identity’ vocation was not explicitly emphasized. Their form, content and meaning were far from identical or even comparable, indeed, in the States' under review.

When the wording of ‘constitutional identity’ first appeared in the case-law of the French Constitutional Council on July 27, 2006, it appeared to the doctrine as a curiosity not anyway sufficient to inspire a new jurisprudence (which,⁴ in fact, has not really come so far⁵). It has, however, been the subject of two significant achievements⁶ in France, one of which was awarded by the Constitutional Council's thesis prize in 2013 and, the other, the Senate's first prize thesis in 2014.⁷

Worse, this innovation appeared to many rather dangerous, even irrelevant at a time when the urgency called for a strengthening of the structures and cohesion of the Union, and not for the celebration of ‘narcissism of small differences’.⁸ It seems that such reactions have been fairly the same after comparable decisions by other constitutional courts.

The notion of ‘constitutional identity’, therefore entered by the ‘back door’ - as often with important concepts - and was the result of a purely jurisprudential creation.

Its emergence was subsequently very gradual, to the point of appearing in the debates of most European countries.⁹

2.2 Progressive

The concept gradually spread through the case-law of the constitutional courts of the Member States. This is to say, it corresponded to a shared awareness, but more or less intense according to national traditions and, above all, the way in which the continuous movement of integration of the European Union was received … How also each state has been felt ‘welcomed’.¹⁰

In this regard, we can note several stages or events which acted as so many ‘stimuli’:

In a Europe that had been criticized for focusing only on the economy and for implementing policies dominated by the principle of free circulation and competition (and which peak was the Single Act of 1986) and weakening, consequently, the initial integrative intentions, gradually emerged initiatives interfering more with the sovereignty of the Member States and sometimes even going further in the application:

1. -the currency (Maastricht 1992)
2. -police and judicial cooperation in criminal matters (the sensitive point was the directive on the European arrest warrant), (2002)
3. -the European Charter of Fundamental Rights (2007¹¹)
4. -foreign and defense policies (Lisbon), (2007)
5. -the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), (2012).

Thenceforth, the notion spread, marked by some important but very close stages: the Bundesverfassungsgericht (BVerfGE German constitutional court) naturally¹² in 2009, the Polish constitutional court (Trybunal Konstytucyjny) in 2010,¹³ the Hungarian constitutional court in 2016¹⁴ the Italian constitutional court¹⁵ in 2017. However, these explicit references to constitutional identity do not exhaust the examples of resistance to an unchallenged acceptance of the ‘primacy principle’ of the rule of law of the European Union, even if this resistance had never really gone so far as to directly challenge its existence.¹⁶ The most advanced court is undoubtedly the German Constitutional Court, which is developing a reasoned doctrine in which it reserves the right to carry out ultra vires control, which constitutes one of the aspects of ‘identity control’.

Whatever the basis of the reasoning, a new paradigm has emerged for reading the relations between the Union and the Member States. It was originally built on the idea that the Union was, in legal terms, an emanation of ‘constitutional traditions common to the member states’,¹⁷ supposed to better achieve the ends that each national constitution had set itself (particularly sensitive discourse, for example, in the Belgian, Italian, or Spanish cases but also, later, among several nations freed from the grip of the USSR).

Without calling into the question of the primacy,¹⁸ the Member States have gradually become aware that the counterweights theoretically put in place by the Treaties (Court of Justice, principles of subsidiarity and proportionality) do not absolutely guarantee against applications that do not precisely comply with the delegations of skills that had been granted to the Union. Without prejudice to the reactions of mistrust of public opinion, the Constitutional Courts have echoed these realisations, facing a Court of Justice sometimes described as ‘imperial’.¹⁹

They took the form of warnings, or even of refusal not to apply the principle of primacy in areas which would exceed the powers attributed to the Union or would be contrary to the Constitution, or even to one of its judged provisions as essential.

We can consider that the Courts had found encouragement in this direction through the new provisions of the article of the Treaty of Lisbon which took up, by improving them, the provisions of the Treaty of Maastricht by considering the contributions of the stillborn ‘Constitution for Europe’: Maastricht introduced the concept of ‘national identity of member states: ‘The Union respects the national identity of its member states, whose systems of government are based on democratic principles’.²⁰ It was only then, after the failure of the French and Dutch referendums, that the Treaty of Lisbon clarified the content of national identity, qualified as ‘inherent (in their) fundamental political and constitutional structures, including - understood as regards local and regional self-government.’ It was with Lisbon that the notion of Constitution appeared, but the Treaty always seemed to stick to purely institutional aspects, even if the end of the paragraph they are doing their part for the first time in so-called sovereign functions: ‘it respects the essential functions of the State, in particular, those which aim to ensure its territorial integrity, to maintain public order and to safeguard national security’. However, does not include the more political provisions of the draft Constitution which also mentioned: ‘the fundamental choices in terms of public policies and social values of the Member States’.²¹

It would be incorrect to think, however, that the idea of constitutional identity would have spread easily, nor, above all, that it took on a specific content in which all the courts could have recognized themselves. It is therefore an uncertain identity or, better, ‘false evidence’.

2.3 Uncertain

Even if the Courts recently have in common the use of the ‘constitutional weapon’ to qualify the primacy of European law, they use a wide variety of expressions, often after long procrastination:

Alongside the five Courts which have explicitly used the expression of constitutional identity, most stick to expressions that are less characterized or less synthetic (or elliptical) which aim at the same goal: to create a line of defense against the supposed risk of abuse of rights by the European authorities. Among the courts which have expressed this position most vigorously, it is possible to cite also the Czech Constitutional Court, which until then was considered very favourable to European construction. In ‘Holubec’ judgment, it considers that the Court of Justice ruled ultra vires in a case concerning Slovak pensions for facts dating back prior to the dissolution of the federation, thus including a part of Czech constitutional history among the constitutional achievements today. More broadly, through its two decisions on the Lisbon Treaty, it refers both to the ‘eternity clause’ appearing in article 9-2 of the Czech Constitution but, at the same time, extends it to the field of protection of fundamental rights and sovereignty based on article 1 of the Constitution.²² In a context of great uncertainty, the Constitutional Court evoked the ‘fundamental values’ of the Constitution without specifying them further, but the fact of stating them can be considered as a progress compared to a past dominated by the desire to be the ‘good pupil’ of the Union²³.

The Belgian and Czech examples clearly suggest a search for a definition built on the interpretation of the Constitution and listing a ‘hardcore’ of competencies.²⁴ This is what the Polish court also risked doing, but without seeming to succeed in translating any real Polish constitutional specificity, at least initially.²⁵ For Denmark, it is different, as there is no Constitutional Court in this country, and it is clearly stated in the Constitution that the courts cannot exceed their judicial power in order to achieve recognition of the rule of Union law.²⁶ They do, however, have at their disposal article 20 of the supreme text which itself enumerates the powers which cannot be transferred.

In other cases, and in particular that of Ireland, it is the whole Constitution that seems to be able to serve as a ‘resistance’ facing possible misuse of jurisdiction. This is therefore a form of constitutional identity, of a ‘procedural’ nature²⁷ and, all the more, there is no limit to the revision of the Constitution, and this necessarily includes the recourse to the referendum. Constitutional identity, therefore, tends to come closer to this that the Treaty qualifies as ‘national identity’. It is Hungary which seems to have taken this rapprochement the furthest by endowing its constitution with a ‘historic’ preamble, a true ‘profession of national faith’.²⁸

In other countries, for example, France, after having been the first to formalize the concept of constitutional identity, the Constitutional Council has not clarified the content that it could cover.²⁹

In this context, the case-law of the German Constitutional Court - to which other European courts do not fail to refer (Italian, Polish or Czech) seems to be one step ahead, if only for its concern for continuity. In doing so, it has apparently not yet stabilized its body of doctrine on the subject.

Thus, behind an indisputable ‘shudder’, reflecting an active search for a new phase of apprehension of legal and judicial relations within the Union, a rather vague general impression emerges which has so far hardly contributed to the development. effectiveness of the concept.

2.4 With limited effectiveness

Most of the positions, even the most explicit, have not given rise to decisions, either because they have remained as short-lived affirmations (French Constitutional Council, Czech Constitutional Court) or because the courts have finally given up on enacting them. draw all the consequences (this is the most frequent situation), as if the Courts had been surprised at their own audacity. Elke Cloots has an excellent expression about Belgium: ‘the Court barked without biting’!³⁰ It is nevertheless possible to underline that this first decision of 2010 which gave rise to this comment has been the starting point for a regular reference to Article 4 of the Treaty, and to the concept of ‘national identity inherent in fundamental political and constitutional structures.’ It led to another decision, in 2016, which was more explicit about the Financial Stability Treaty.³¹ The Belgian Court -as other courts have tried to do - gave a self ‘moral satisfaction’ in ruling that the ‘primacy principle’ does not result from the principle of primacy as theorized by the Court of Justice, however, from article 34 of the Constitution under which the provisions of the Treaties were introduced into the Belgian law. It took the opportunity to indicate that this transposition could not undermine either Belgian national identity or ‘the fundamental values of the Belgian constitution’.

It does seem that the most successful path towards effectiveness was chosen by the German constitutional court, which had entered into an almost systematic dialogue with the Court of Justice, a practice that the other courts have followed with reluctance and less intensity.

The paradox of the situation is that it is the same Court of Justice of the European Union which has agreed to consider, on two occasions, specific elements that may be linked to the national specificities of a member state. More significantly, the provisions considered were not explicitly part of the constitutions of the countries considered, namely the Republic of Austria and the United Kingdom. In the case C208/09 Sayn-Wittgenstein of December 22, 2010, now well known, the Court of Justice accepted to consider the Austrian law of April 3, 1919, which abolished the titles of nobility and rejected the plaintiff who wished to include the title on their identity documents. It was therefore the Court of Justice itself which showed that recourse to the concept of national identity could allow recourse to reference which were not strictly constitutional, and which could nevertheless produce legal effects³². The second case concerns the electoral law in Gibraltar. The Court dismissed Spain in the name of ‘the British constitutional tradition’ which allows citizens of the Commonwealth to vote for whoever meets conditions of connection with the territory in respect of which the elections are held.³³

In conclusion, if the insertion of the notion of ‘constitutional identity’ in the debate between the national courts and the European institutions still appears imperfect, it seems to constitute a turning point in the perception of their role by the Courts, however, undoubtedly also, the symptom of a diffuse concern on the part of the Member States regarding the European construction which raises a number of questions:

Does this appearance indeed constitute a turning point in the construction of the Union, and does it call for adjustments in its functioning? Or is it only the sign of the dissemination to the constitutional judge himself of the concerns about identity which have continued to be expressed in European societies since the beginning of the 21st century, even when the fall of the Wall of Berlin hoped for a peaceful development for the entire continent, for the first time in a long time?

The recent outbreak of debates about it prompts to take it seriously and analyze the phenomenon from which it arose, but above all, to see to what extent its usefulness for European construction could be optimized. In short, questions about constitutional identity may simply turn out to be questions about the constitutional identity of the Union itself and the functioning of its institutional architecture.³⁴

3.1 Signification of the emergence of the concept

Even if the emergence of such a notion at the level of the Courts is very far from commensurate with the concerns aroused in public opinion by the ‘envelopment’ of national identities by a European construction from which, at the same time, is hard to appreciate the contours or the project, it cannot be totally dissociated from it. Its generalization tendency in the various case-law undoubtedly responds, in part, to a fad that can be read through the dates of its manifestations. After a start limited to a few states in the first decade of the 21st century, this phenomenon has accelerated in recent years.

It is in part, he constitutional response to the political reservations also aroused by the intensification of European construction during the same period and all the more keenly felt as it has penetrated further to the heart of the identity of the States, without offering a substitute ‘identity’. After money (we usually forget to point out that Europe is the first historical example of the creation of a stateless currency); monetary and fiscal policy; after the economy, justice, and human rights, which were not provided for in the initial contract and which arrived, in a way, almost surreptitiously and today occupy the bulk of judicial decisions. The adoption of a European Charter of Fundamental Rights now incorporated into the Treaties was nothing less than obvious, even though the European Convention on Human Rights already existed, and a European Court specialized for this purpose.

Superior to this, the question of human rights, with the part of appreciation that this concept contains now, has become the essence of ‘the rule of law’, which falls under a much broader definition, namely compulsory and predictable general rulemaking according to democratic procedures. The content of the concept of human rights, organized around the concepts of safety and protection of individual freedoms against the abuse of rights, has imperceptibly become a model of society allowing few nuances, including in matters relating to individual autonomy and not attentive enough to the differences of evolution among the societies of member states. Moreover, the question of human rights occupies currently, the main part of the political discourse. Finally, it is possible to think that this wave of ‘constitutional identity’, encouraged by the treaties and the recognition of a ‘national identity inherent in the political and constitutional structures of States’, reminds the hesitations perceptible in the day after the first stages of the Community building. At stake, as it was at the time, the issue of the primacy of Union law - including in relation to constitutions, even though the Courts are responsible for defending these same constitutions and ensuring their respect ‘inside’. Through the lineaments of the search for a new paradigm for analyzing the relations between the Constitutions and the Court of Justice, it is the data of an old problem that is resurfacing. In Spain, for example, the Constitutional Court, in its aforementioned declaration of 2004, ventured to bring up to date the distinction between ‘primacy’, which would apply only to ordinary laws and would only concern a limited area, and ‘supremacy’, which would characterize the constitutional order, which is not limited, and which would have the vocation to impose itself on all legislation. Primacy and supremacy would apply to two distinct legal orders. It is obvious that while the two terms can be conceived, constitutional supremacy cannot apply to European legislation, at least after its adoption and except for abuse of procedure or excess of power.

This reference to the Spanish Constitutional Court only reflects the embarrassment of the Courts when it comes to reconciling constitutional supremacy in the internal order, which they are responsible for ensuring and the primacy of European law. is this also a reason why none has gone very far in the definition of constitutional identity in the obvious concern of preserving a ‘euro-compatible’ line, even if this does not always raise the same enthusiasm.

It is undoubtedly the duty of the doctrine to endeavour to identify the obstacles which seem to make this definition delicate, but also to look at the institutional context in which this research is being carried out.

3.2 The difficult path to the consecration of constitutional identity

The ‘obstacles’ can be classified into two categories: ‘open questions’, which derive from the nature of the texts as well as from the developments in the Union itself engendered at the level of national constitutional rights. The ‘hidden questions’, in other words, those not asked but which exist behind the current debates, on constitutional identity.

The first of the open questions is that of the very possibility of defining a true constitutional identity if identity does indeed mean ‘difference’ and the affirmation of specific characteristics. The power systems defined by the constitutions are certainly different, but seventy years of practice and development of the European Union have brought them considerably together. There is even a tendency, on the contrary, to encourage ‘sameness’ to the detriment of identity.³⁵ All European political regimes, regardless of the institutional structures in which they develop, claim to belong to the parliamentary system, even if there may be nuances between them. This resemblance, however, is not apparently enough in some Brussels antechambers, we must go so far as to be identical.³⁶ For example, it is striking to note how much a sort of doxa has developed in European bodies, for example, at the level of the Council of Europe, concerning ‘legitimate’ voting methods. There would be no salvation outside of proportional representation. The European Parliament takes this point to a caricature by instituting ‘alternation in power’ regardless of the winner of the elections …

The same trend applies to the principle of the separation of powers and the affirmation of an autonomous judiciary in all its components, both at the level of the prosecution and of the bench judges. It is strange that a country like Denmark has succeeded in passing between the drops, which refuses to create a constitutional court and defends a conception insisting on the limits of the jurisdictional power …

This diffusion of a ‘model’ was particularly striking at the time of the enlargement which followed the collapse of the Berlin Wall: the new constitutions are much more detailed than the old ones and the candidate countries were called upon to integrate an important part, not only of the ‘Acquis communautaire’, but the very principles resulting from the European Convention on Human Rights, or even from the European Charter of Local Self-Government, almost ignored by the constitutions of the first Member States.

It is therefore becoming more and more difficult for a Member State which would like to state real specificities from the letter of its constitutions. We have seen examples of this, and not only in Poland, for example in the Czech Republic, even if the constitution of this country does not, strictly speaking, contain a bill of rights.

So, what avenues should be favoured in order to give content to the notion of constitutional identity?

1. -Should we move towards a form of supra constitutionality made up of provisions that cannot be revised?
2. -Give priority to the search for a ‘hardcore’ of competencies stemming from the Constitution?
3. -Move towards a ‘procedural’ definition that leaves open the question of content and could encompass the entire Constitution?
4. -Indulging in Impressionism made with little touches of jurisprudence that end up forming a painting?

Despite the difficulty, the comparisons are enlightening in this regard, and it is evident that the choice made by the Courts is closely inspired by the traditions of the country where they are found. Everything also depends on the form and content of the constitutional text.

We know the limits of the debate on ‘supraconstitutionality’ which cannot constitute, as it stands, a common notion. There remain the so-called ‘eternity’ clauses which list provisions ‘not subject to revision’ and which are far from common use in constitutions. We have seen that they could serve as a guide and undoubtedly constitute a first avenue for uncovering constitutional identity, but their importance should not be exaggerated. If this ‘eternity clause’ can be considered important in the fundamental law of the Federal Republic of Germany³⁷ or that of the Federal Republic of Austria for example, it is reduced to a single article in the French Constitution (a republican form of government) or non-existent in many others.

Assimilating constitutional identity and eternity clause (s) is a possible but insufficient route, if only because these eternity clauses can themselves be modified to adapt to new circumstances or to institutional developments but also, because they can be a brake in focusing on concepts that no longer correspond to the spirit of the times or do not constitute guarantees as important as the constituent originally thought. In any event, they must be interpreted, would not be - that because of their general character, more than an effective guarantee, they are a resource for the constitutional courts, which don't hesitate to extend. This is what the Czech Constitutional Court has done: for example, acts more out of common principles ‘to the family of democracies in Europe and around the world’ as it is written in the Preamble than as a statement of specific characteristics.³⁸ The Court extended the clause of Article 9 to the protection of fundamental rights and State sovereignty; the elements of the rule of law: respect for case law, prohibition of retroactivity of laws, the principle of the generality of the law; basic principles of democracy and electoral law.³⁹

The ‘Solange’ case law⁴⁰ of the German Constitutional Court shows that the eternity clauses themselves are not an obstacle to the protection of fundamental rights by another legal order as long as the protection is equivalent to German law. ‘Solange II⁴¹ is particularly interesting from the point of view of the articulation between German law and European law, the Court declared that it will not accept an appeal against the primacy alleging a violation of fundamental rights on the basis of the German Constitution as long as they are sufficiently protected by European law. There remain of course more specific elements such as, first and foremost, the federal character of the state and the principle of participation of the Länder, which the Court was able, for example, to remind the European Commission of in 1995.

All in all, it appears that the eternity clause can only be one element among many in the definition of constitutional identity. To reduce it to the eternity or non-revision clauses would be to read them too restrictively and not correspond to the interpretations of the Courts themselves.

In addition, it is possible to think that certain constitutions are less attentive than others to the definition of the nature of the State or to its characteristics. It will be recalled that the word ‘constitutional identity’ does not appear in any constitution – until the Hungarian Constitutional revision and that even the word ‘identity’ is rare there, except perhaps in the Polish Constitution where one encounters both the expressions ‘identity of the Nation’ (Article 6) or ‘religious identity’ or ‘cultural identity’ (applied to national or ethnic minorities (35-2)). These expressions follow a preamble bringing together religious and historical elements and constituting a true cultural portrait of the Polish nation as the constituents perceived it. These references can find through the Polish case-laws, including before the political changes made in 2015.

It is undoubtedly necessary to distinguish between constitutions, the essential of which is the organization of powers, and those which remain marked by the particular historical context in which they were conceived, whether it is a question of preventing the return to certain mistakes (Germany, Austria) or to assert recovered sovereignty (case of the nations of Central and Eastern Europe after long periods of occupation).

Should we then move towards a more precise definition of a kind of ‘hardcore’? The preceding examples show that whatever the efforts of the Courts, it is hardly conceivable to stick to simple enumerations, which are always imperfect because they are incomplete or insufficiently precise. More often than not, the Courts do not tackle this exercise while voices can be raised in the doctrine in favour of definitions by revision of the constitutional text itself. This is the case in Spain, but we know how successful constitutional revisions call for particular contexts, and more than any other text, it is advisable to approach the constitution ‘only with a trembling hand’. This also explains certain constructions which, to be meritorious, remain too vague. We have cited a few examples of this, but that of Spain, a country nevertheless with a unique constitutional and historical personality, is quite significant in the difficulty of defining an a priori constitutional identity in a satisfactory manner: Strictly speaking, such thing as ‘clause of eternity’ does not exist, but the Spanish jurisdictional bodies set out to ‘invent’ one from article 93 authorizing the attribution of ‘the exercise of powers derived from the Constitution’. The Council of State, then the Constitutional Court, considered that these attributions must be carried out ‘with respect for the sovereignty of the State, our basic constitutional structures, as well as the system of values and the hardcore of principles’ enshrined ‘in our constitution by virtue of which the fundamental rights have a material consistency by nature’.⁴² It is strange that the Preliminary Title, which defines the originality of the Spanish nation and its State, did not be the subject of more references.

3.3 Why did the courts spend so little energy defining ‘constitutional identity’?

First of all, we must beware of this desire to define everything when a new concept emerges. First of all, it is in fact an emergence, like an awakening in the face of a situation that one fears not to control, perhaps a form of vital to assimilatereaction in the face of an evolution which is akin to an endless slide which, if not to stop, we have to pay attention and prevent. We have to consider not a concept but a real notion which needs to be used in an appropriate way according to the juridical context.

The work of the Courts, indeed, is anything but an a priori intellectual creation. We cannot deny their concern for consistency, but their decisions are reactions to ad hoc situations, the meaning of which is not immediately apparent. It is significant, moreover, that most appeals to constitutional identity are incidental to the decision, and sometimes without follow-up. It is the very nature of case-law that is not to make grand proclamations, it is an art of nuance, of balancing conflicting interests. In European matters more than elsewhere, since the Courts know that they are faced with a law over which they have no control, constrained by the legal data of the Treaties. It is their power that is in question since, ‘courts of sovereignty’, thus, they rule in an area in which the very sovereignty of the state is restricted.

Before daring to come to ultra vires, it is still necessary to integrate the new situation created by the Treaty, which they obviously have difficulty to assimilate, preferring to consider that the European domain and the national domain, although interpenetrating belong to distinct logics. They know that whenever the relationship between a new Treaty and the Constitution has been affected, the Constitution has given way. Hence the search for oblique lanes is an attempt to regain leeway: Considering the ‘Primacy principle’, they more readily seek and highlight the provisions of domestic law which made it acceptable (the articles of Constitution conditioning transfers of sovereignty) rather than the Treaty itself. These are weak self-satisfactions. They intend to keep the European law ‘at a distance’.

There is the intuition that the Courts are only fully playing their role when the questions of a further extension of attribution transfers to the Union arise. They are much more timid when it comes to secondary law. The good proof is their reluctance and even, for a long time, their refusal to use the preliminary question offered to them to refer the matter to the Court of Justice of the European Union. Many choose an attitude of ‘splendid isolation’⁴³ and the listing of the dates of first referral to the Court of Justice is edifying: Belgium 2005, Italy 2008, Spain 2011, France 2013, Germany 2014 (however, the latter frequently).

Then how to explain this sudden change in attitude? Our opinion origins' lie mainly within the States themselves. It cannot be disregarded that, except for remarkable exceptions, coexist Constitutional Courts and Supreme Courts—not all Constitutional Courts are supreme courts. At the same time, the Constitutional Courts see their field reduced by the extension of European law but especially undergo, in that field, the ‘competition’ of the supreme courts of the judicial or administrative orders which were better able ‘to take the turn’ of the rise in the internationalization of law. It will be recalled that the French Constitutional Council, for example, (in its a priori control) still refuses to rule by taking into consideration conventional law, which opens a wide door to the case-law of the Supreme Courts which have earlier agreed to rule on the matter. This could have created inextricable situations in which the prestige of the Council could only suffer. This is an aspect of the recent Council of State decision that has not been sufficiently emphasized.⁴⁴

Affirming the existence of constitutional identity is therefore a way of ‘putting the church back in the middle of the village’ and recalling that the Constitutional Courts are the only authorized interpreters of the Constitution. This question has taken on a new dimension in France today since its introduction in the Constitution of the priority question of constitutionality, which obliges an ordinary court encountering a constitutional question to seize the Constitutional Council by the intermediary of the Supreme Court of its legal order. This procedure was intended to contribute to a unification of constitutional law and to consolidate the supremacy of the Council in this matter. These are similar questions that seem to be at the root of some ‘bold’ positions taken in other countries. The collection of studies coordinated by Christian Calliès and Gerhardt van der Schyff ⁴⁵ identifies three of them: Belgium, Italy and the Czech Republic. The recognition of constitutional identity took place in a context of rivalry between the Court and the Supreme Administrative Court.

In this case, the notion of constitutional identity is, to some extent, the ‘daughter’ of an imperfect dialogue between national judges. The difficulty in defining it is, on the contrary, an invitation to deepen the dialogue of judges at the European level and to reestablish a balance that until now seemed, above all, to benefit the European Court of Justice.

4.1 Short-term utility: improve the dialogue of judges

A first consequence of the intrusion of the notion of constitutional identity is an invitation to redefine the conditions for the dialogue of judges at the European level and to put the actors in perspective.

Now, facing the national constitutional judges, who seem to adopt an attitude, if not more offensive, in any case, more aware of the place that could be theirs in a more balanced European system, and the Court of Justice, which is implicitly dismissed to its role of monitoring the application of the Treaties and not of a full Constitutional Court, in the application of Article 13-2 which states that ‘each institution acts within the limits of its powers’. Application of the Treaties implies respect for the national identity of the Member States, not to mention other provisions of the Treaties, in particular, Article 3.3, in the last paragraph, which provides that ‘the Union respects the richness of its cultural diversity and linguistic and ensures the development and protection of European cultural heritage’.⁴⁶

We are here in the presence, not of a change of legal paradigm (it would probably be a mistake for the Constitutional Courts themselves to go beyond their field of competence) but of the need for an awareness likely to slow down the process of self-limitation of the Courts regarding European law.

This awareness would suppose several evolutions:

The dispassionate assertion is that it is the national courts that have the monopoly on the interpretation of constitutions and, therefore, on the definition of the constitutional identity proper to their national order. It would only be a matter of reaffirming a reality that seems, in fact, to be taken for granted.

On the other hand, it would be rather the Court of Justice's task to integrate, with the help of the Constitutional Courts and at the end of a more confident dialogue with them, the elements of ‘national identity’ that the Treaty invites to consider. It should only be able to do this in consultation with the Courts and not on its own initiative. It's remarkable, according to the recent statements of its president⁴⁷ that the court of Justice is beginning to be more conscious of its responsibility in that field.

The Courts, on their part, should therefore become aware of their intertwined interests and of their collective strength. Mutatis mutandis, as the national parliaments have done, which we know that the Lisbon Treaty enshrined the role inside the Union institutions by establishing a specific implementing protocol. One of the contributions of this consultation is to have, little by little, made national parliaments aware of their collective strength and not to remain isolated facing European Parliament in need of leadership which still lacks being a real Parliament. Nothing is opposed to the formalization of a sort of network of constitutional courts or in charge of the control of constitutionality within the Member States and to provide for informal exchanges with representatives of the Court of Justice, such as some of them already practice with other national public authorities (like the German Constitutional Court).⁴⁸

It is thanks to this new confidence built together that they will be able to enter into a real dialogue with the Court of Justice without the fear of being absorbed by it, or of losing their status as guardian of the constitutional identity of States. Therefore, a preliminary ruling for interpretation should become a normal procedure and not a worried concession to a European legal order conceived as ensuring its own primacy and in an inevitable way. Failure to contribute, on the other hand, would run the risk of an erosion of constitutional identities. Preparing a preliminary ruling would be an incentive for constitutional judges to formulate in a more rigorous way, such or such aspect of what they consider belonging to the notion of their constitutional identity.

Just as the definition of constitutional identity is a matter for constitutional courts, it seems that there is interest in letting the court of justice interpret the Treaty in relation to the national identity of Member States. This is what it has done for some time, for example, not hesitating to include ‘the protection of the national language of the State’ in the national identity⁴⁹ but also many other missions of the State (environmental protection, social solidarity, aviation safety).⁵⁰

This does not mean that the Courts should deprive themselves of the inclusion in the constitutional identity of elements, which would not yet appear explicitly today. The concept of national identity is broader than that of constitutional identity. We have seen the difficulty that existed in formulating it in a clear and exhaustive manner. This formulation is, on the contrary, an incentive to constitutionalize elements that the spirit of the times would lead to leaving aside, and which concerns all the elements which ‘constitute’ ‘a Nation’, that is to say a language, a culture, and a way of being together.

The concept of national identity, although different, already constitutes an enlargement but also in which the Treaty defines it, helps to isolate a certain number of characteristic features of what can constitute a constitutional identity:

1. -the political and constitutional structures
2. -local and regional autonomy
3. -the essential functions of the state (territorial integrity, maintenance of public order, national security).
4. -language
5. -Culture⁵¹

This is a list that can only be enriched and in which most Member States could find themselves.

Constitutional identity is therefore a notion that can only be clarified and broadened by cooperation between national legal systems and the European legal system from a dynamic and inclusive perspective. In doing so, thanks to the mirror that constitutes the concept of national identity, it can help give back to the nations that make up Europe content and coherence that, precisely, the rise of identity claims inside them has helped to erode.

We can see that the dialogue of judges alone, however important it may be, cannot replace confrontation and dialogue between sovereignties. This is also, in our view, in the long term, what the rise of the concept of constitutional identity invites us to rediscover

4.2 In the long term: a laboratory for a new contract between the union and its member states

Whatever may be the benefits of a dialogue between judges ‘reframed and enriched’, it cannot respond to the identity concerns that are manifested in public opinion and this is not the progress glimpsed through the notion of ‘constitutional identity’, at least through the Courts, which will be able to answer it. On the other hand, it is not impossible to draw the consequences of this evolution by ‘popularizing’ the notion and by suspending the ‘nation bashing’ very fashionable today, while waiting to go beyond or supplement the dialogue of the judges by a renovation of the constitutional and democratic architecture of the Union.

Europe was built on the fear of nationalism and its resurgence. Its founders did everything to ensure that it ‘does not have a head’ and does not look like a State, especially since the avowed objective was to put in place a new type of construction. The problem is that, despite the transfers of power, the Union, until the Covid crisis and the initiatives of the European Bank beyond the Treaty, remains an ‘unidentified object’ but which the national political and governmental rulers made responsible for most of their ills.

What shows the emergence and perhaps the risk of crisis linked to constitutional identity - embodied by the decision of the Court of Karlsruhe of May 5, 2020,⁵²which almost led to an infringement action from the Commission - are the limits of a structure built underneath and by successive sectors while neglecting the importance in public action of political responsibility. The dialogue of judges' risks losing in this whole, itself devoid of identity and democratically questionable, part of its usefulness. Whatever its improvements, it cannot in fact replace an absent political state. It is, moreover, healthy for the German Federal Court to accept appeals in the name of the democratic principle, but it is undoubtedly not normal to come to consider (and to dare to assert oneself) for all that as a substitute for a failing political power: ‘for legal and historical reasons, the courts in Germany play a special and specific role which can lead to an action before the Federal Constitutional Court being able to selectively ‘compensate’ (!) the deficits of action of other constitutional bodies’, which means, in short, that it could replace the failing political power.⁵³

Beyond the relationship between judges and democratically elected authorities, the emergence of a notion of constitutional identity and its foreseeable extension to notions relating to aspects that are not strictly legal, reveals a need for the identity of member states which is insufficiently satisfied by the current institutional architecture.

Many present it as less ‘integrative’ and threatening than a federal structure. If we want to take a step back, this is nothing short of obvious. The construction of secondary European law, the very one which is imposed without discussion on the elected and legitimate legislative bodies of the States, is an ongoing process, relatively little controlled by the upstream Member States. While there may still be two distinct legal orders between Europe and states, there are certainly two radically different and asymmetric types of functioning. Perhaps we arrived without being sufficiently aware of it, at the limit of a system developed in other circumstances, at a time when Europe had only a very limited competence (in this case the European coal and steel community). The essential organ in the daily working of the Union remains, in fact, the Commission, falsely adorned with political responsibility and which holds the monopoly of the preparation and the instruction of the standards and of which many would like to make the executive of a future European state. States only intervene as ‘co-legislators’ and this is only slightly compensated by the European Council, an essential body but not directly involved in the development of the directives and rules. This gradually creeps and imposes itself in the legislation of the States without them being able to criticize it without being immediately accused of being bad Europeans or nationalists of the past. Can we be sure that this group, which gives so many lessons in democracy, is itself free from criticism in this regard?

This is a question that should be asked more clearly from now on, not to fight the European construction but perhaps to ‘put it right side up’, like what still remains the best political model in the world. namely a democratic state, with political leaders sufficiently identified and accountable to their peoples. The leak to ‘horizontality’ has its limits, a little return to ‘verticality’ should not hurt and the affirmation of constitutional identity could be the basis for building a real state with better controlled normative production, and a more visible distribution of skills in which the Courts themselves would, no doubt, be more comfortable.⁵⁴