1 Introduction

Romania and Bulgaria can be seen as a laboratory regarding EU constitutionalism. The main reason is the monitoring of these two countries' respect for EU values before, and specifically after, their accession. The other reason is the affirmation of a specific EU identity.

Since the creation of accession criteria, the European Community has affirmed a specific identity. It began with the declaration on European identity¹ in which we can find certain core aspects, such as ‘the principles of representative democracy, of the rule of law […] and of respect for human rights’. By affirming certain political criteria regarding the accession, the Community ensured the existence of and respect for its own identity. Furthermore, the declaration of Copenhagen affirms, ‘The Construction of a United Europe […] is open to other European nations who share the same ideals and objectives’.² So, this affirmation presupposes one simple thing: the more an EU identity reinforces itself, the more it will have an important impact on new Member States. Since the creation of the EU in 1992, the goal of this new step has been to deepen political integration: political union means, at least partially, common identity. This common identity has been expressed by Article F of the Maastricht Treaty (1992), which became Article 2 TEU: a proclamation of principles, and then values, such as respect for human rights – including human dignity, freedom, equality and the rights of persons belonging to minorities – and the rule of law and democracy.

An attempt to analyse the impact of EU identity on constitutional identity presupposes two things: the existence of an EU identity from a legal point of view, and a definition of constitutional identity for this study. As Timea Drinóczi wrote, ‘Constitutions […] do not include any provision containing the term ‘constitutional identity’ or the like’.³ Consequently, because it is impossible to only rely on a textual analysis to define it, defining constitutional identity requires a definition of identity and its link with constitutional law, so as to rely on paralegal concepts to define constitutional identity.

According to Paul Ricœur, identity is a narrative, with two main ideas: the idem identity (or sameness) and the ipse-identity (or selfhood). According to Matthew C.R. Craven, identity ‘assumes that individual states, whilst being members of a particular class of social or legal entities, also possess certain distinguishing features that differentiate one from another’.⁴ Applying this definition from a constitutional law perspective supposes two steps. Firstly, that we define the sameness regarding the content of the Constitution. This presupposes taking into account a continuous history, but also a sameness regarding the neighbouring States. In this hypothesis, the construction of a constitutional identity results from internal and external influences, which include International law and European law incentives. Secondly, there should be a definition of selfhood regarding the content of the Constitution. This presupposes an understanding of what makes the specificity of this Constitution – what seems to be so essential for the people, the constituent power or the legislative power that it presupposes a specific defence. In this part of the constitutional identity, the selfhood must be protected, and constitutional courts will act as a shield to protect it, especially against the supremacy of EU law. Nevertheless, it would be reductive to define constitutional identity only as a shield to protect the selfhood of a State⁵; for a European country, constitutional identity also emerges by a comparison with other European identities. It also emerges in relation to the European integration project.

This EU identity should have been only a political statement, without any impact on the real life of the EU or on accession. The EU identity needs a clarification. It is imprecise to qualify it as a ‘constitutional’ identity, because such an EU constitution does not exist. Nonetheless, a specific EU identity does exist, based on certain principles, such as subsidiarity or loyal cooperation and on certain values, as listed by Article 2 TEU. In this article, EU identity means EU values according to Article 2 TUE. This identity founded on values can be easily found in the Commission's opinion regarding the accession of new States: is this identity more than just a statement? Thus, political criteria are divided in two kinds: democracy and the rule of law, on the one hand, and human rights, including the rights of persons belonging to minorities, on the other hand.

Regarding the existence of the EU political identity, can we find an impact of this identity on the constitutional identities of Romania and Bulgaria?

2 Scope, methodology and state-of-the-art

Bulgaria and Romania are the latest two States to join the EU, in a context of the reconstruction of these countries after the end of the cold war. Given this, it seems interesting to focus on them, but also because the Commission enacted a specific monitoring after accession for these countries, to limit the risk of a rule of law backlash after accession. The Cooperation and Verification Mechanism⁶ (CVM), created to ensure a monitoring post-accession, was useful to understand the impact of EU accession on national identity. In particular, the fear of a rule of law crisis, or a rule of law backlash in these two countries ensured that there was data collection regarding legislative and constitutional evolution. Nonetheless, to really understand the impact of EU political identity on national constitutional identity – if such a thing even exists – we need to analyse what happens before accession and before the establishment of this specific monitoring. The CVM was made to avoid any backlash, so this implies that the two countries were already democratic States respecting the rule of law and human rights.

In fact, in Central and Eastern European Countries, from the end of the Soviet era until the end of the 2000s, a massive constitutional renewal animated civil society and the political power. Establishing new rules quickly was vital for these countries,⁷ and this reconstruction, the EU accession process and the NATO accession process led to quite regular constitutional modifications. As a result, Bulgaria and Romania seemed to be the best field for this analysis of the impact of EU political identity on constitutional identity. The issues for these Member States regarding their constitutional identity can be extended to other post-Soviet countries. Nonetheless, this study focuses on these two countries because the CVM provided some useful data, which is not available for other countries.

Regarding the methodology, because the goal is to prove the existence or lack of impact on constitutional identity, the corpus will be limited to positive law, and in fact, only to the Constitutions of these two countries. It should be possible to consider the practices, or the new statutes, but this would not be an analysis of constitutional identity but more of legal national identity. This is not the scope chosen for this article. Nevertheless, it should be remembered that the content of the Constitution does not always match perfectly well with the practice: if there is too significant an opposition between the text and the practice, this will be indicated to the reader.

Regarding the state of the art, some studies have analysed the influence of various countries on constitutional reform,⁸ some have analysed the specific EU influence on constitutional reform,⁹ while some others have looked at the Cooperation and Verification Mechanism and the respect for EU values in Romania and Bulgaria after accession,¹⁰ and there have also been studies which do not deal with the Constitution.¹¹ Nevertheless, there is no study on this specific topic regarding constitutional identity and the reforms before accession. In this study, the first question discussed is the current existence of an EU political identity (section 3); following this it seems useful to analyse the specific situation in Romania (section 4) and then in Bulgaria (section 5).

3 Trying to define an EU political identity

Since the Maastricht Treaty, the EU has been an example of a political union, involved in ‘a process of creating an ever-closer union among the peoples of Europe’,¹² as was asserted in the TEU preamble. Despite this affirmation, is there a real EU political identity? The enlargement process was the best illustration of this political identity and its main elements. An expression of this in the TEU is the ‘consistency clause’ (art. 21 TEU, last recital): i.e. the consistency between the different areas of its external action, but also between these and its other policies. Consequently, this affirmation means the application of fundamental rights, but also of principles, for every single EU action. These principles are, indeed, the core expression of EU political identity. The Maastricht redaction of the TEU was crystal clear regarding this point: Article 6 TEU enacted EU founding principles – liberty, democracy, respect for human rights and fundamental freedoms, the rule of law – the respect of fundamental rights by the EU, the respect of national identities, and the conferral principle. Today, EU values are proclaimed by Article 2 TEU, and fundamental rights protection is also autonomous (Art. 6 TEU). However, the logic remains: because the EU is more than a classic international organization, it is essential to ensure the protection of national identities; because of this, too, there is an EU political identity and a possible tension between national identity and this new identity. So, it would be unfair to limit the EU political identity to accession criteria: accession criteria exist for other International Organisations, such as the Council of Europe¹³ without raising any discussion about the political identity of the organization itself. Why is there an EU political identity? First of all, because, as Miodrag Jovanovic emphasized¹⁴, two contradictory narratives coexist inside the EU: the proclamation of the supremacy of EU law made by the ECJ, and the Member States narrative, fostered by the German Federal Constitutional Court, arguing that all the EU's powers are delegated to it by the Member States. Supremacy led to the construction of a political identity for the EU, with fundamental rights as the first element, and then the proclamation of EU values. To reassure Member States and their national constitutional courts – mostly the German and Italian ones – the proclamation of the protection of national identity attempts to mitigate supremacy in specific and limited cases. Nevertheless, the political identity of the EU has an impact on national identity via accession criteria, which include EU values. These accession criteria are included in an integration process ruled by primacy, and by the non-application of classical International Law rules, as reservations to a Treaty. Consequently, EU integration is different from a classic example of International Law cooperation, both in terms of its methods and its fields. These differences justify harsh accession criteria, from an economic point of view, but also from a political point of view. These accession criteria thus illustrate the main core of this political identity, but do not achieve its definition. In this article, because the topic is the accession process and its consequences, accession criteria are the more relevant illustrations of EU political identity; after accession, the most appropriate currently seem to be Article 2 TEU and the toolbox used to protect it.¹⁵ In fact, the core of EU identity can be summarized in the rule of law, democracy, and fundamental rights. Consequently, to prove the impact of EU identity on national identities, we need to prove an improvement in the rule of law, democracy, or fundamental rights after a pre-accession monitoring.

4 Romania

The Romanian constitution of November 1991 created a semi-presidential regime, under the influence of the French deputy minister of Justice Robert Badinter.¹⁶ In this new constitution, there were already significant modifications and progress: the creation of a constitutional court, the creation of an Ombudsman, protection for Members of Parliament and their freedom of speech, and the political democratization process, etc. Despite this French spirit and the progress made on the former Romanian constitution, the reform of the Constitution became ‘an imperious necessity’.¹⁷ The government programme, adopted by the Romanian Parliament on December 28 2000, advocated clearly for a constitutional revision in relation to requirements made by the EU accession process.¹⁸

In 1997 the Commission analysed the content of the Romanian constitution regarding the political criteria for accession¹⁹; democratic institutions seemed stable, but there were still some flaws regarding the respect of fundamental rights – protection of freedoms against the police, the integration of the Roma minority – and regarding the rule of law – sound management of the justice system, and the fight against corruption. Specifically, the Commission worried about the insufficient salaries for judges – despite the affirmation of their independence in the Constitution – the blurred competences of the Ombudsman, practices regarding minorities – regardless of any specific parliamentary representation – and, most importantly, the possibility of interference with the declaration of unconstitutionality of an act by a two-thirds vote of Parliament. So, to ensure the respect for political criteria, it seemed useful to reform the Romanian constitution. We must note that the opinion on Romania's accession is a 134-page document, only 8 pages of which analyse the respect for political criteria. So, quantitatively, these were not the main core of the accession process in 1997, partly because Romania was on a good track. Thus, the general evaluation in 1997 concluded that ‘Romania's new institutions are democratic and their stability now seems guaranteed […] much still remains to be done in rooting out corruption, improving the working of the courts and protecting individual liberties…’.²⁰ In fact, the main issues at this time were the integration of the Roma minority – around 6% of the population – protection of property rights and privacy, corruption, and issues regarding the functioning of the judiciary, e.g. a shortage of qualified judges. So, except for the issue of Parliament overturning a Constitutional Court ruling, there was nothing linked directly to national constitutional identity. Corruption was not specifically included in the Romanian constitutional identity. Nevertheless, improving the fight against corruption presupposes a massive modification of the conception of checks and balances, and this specific issue implies an improvement in the rule of law - which could impact on Romanian constitutional identity - to reinforce the rule of law protection.

In 2003, the Romanian constitutional reform focused on compliance with the European Community's acquis, but also on progress regarding the specific points raised by the Commission in 1997. Interesting points include the clear affirmation of the right to a fair trial, and within a reasonable time, the Constitutional regulation of preventive custody and searches, the amplification of the National Judiciary Council mandate, and the integration of civil society members on this Council. Regarding the Constitutional Court, the Ombudsman can ask for a constitutionality review in specific cases, and the Constitutional court had new tasks: to resolve legal disputes between public authorities, to conduct constitutionality reviews of International Treaties, and the suppression of Parliamentary power. Furthermore, the rights of persons belonging to minorities were reinforced with the use, under certain conditions, of national minorities' languages in their relations with public authorities.

These elements of the constitutional reform perfectly illustrate the current theory: some major modifications, especially regarding criminal procedure or the rights of persons belonging to minorities were inspired directly and clearly by the points raised by the European Commission. It is impossible to prove whether these reforms would have occurred in Romania without the influence of EU identity. In fact, the Council of Europe's incentive could have led to the same modifications. Nevertheless, the will to join the EU as soon as possible justified these rapid modifications of the Constitution, specifically to ensure a better respect for EU values. Accession to the EU seems to be a powerful leverage, but the protection of national identity leads to a necessity: finding a balance between respect for EU political identity and the protection of national identity. Consequently, belonging to the European continent shapes the nation's constitutional identity; this belonging includes EU membership and its specific incentives and monitoring.

Finally, in 2013, a new reform of the Constitution was considered,²¹ but has never been finalized. The Commission reacted to this process, which happened after the full accession of Romania, in the scope of CVM monitoring. In its CVM report of 2015²² (Commission 2015), the Commission wrote, ‘If work resumes, this would be an opportunity for a fresh look at how the Constitution could be used to cement judicial independence’.²³ By writing this, the Commission applies the same logic as during the pre-accession process: making clear what the most important points are, by reminding the country of the contents of the values: judicial independence, protection of human rights. In fact, there are still some issues with judicial independence in Romania,²⁴ and this shows the discrepancy between the text and the practice. This discrepancy does not challenge the national constitutional identity but shows the difficulties in implementing good practices. In this case, EU monitoring can be efficient in improving the good application of the constitution and of EU values.

As a result, there is, in fact, an impact of EU identity on Romanian constitutional identity, even if it is limited. Such an influence seems to be more limited regarding Bulgaria.

5 Bulgaria

In its opinion of 1997,²⁵ the Commission acknowledged the Bulgarian constitution, enacted in July 1991, as an illustration of ‘the transition to democracy […] sudden and peaceful’.²⁶ Regarding the political criteria, the Commission was concerned by the status of the Administration, the flaws in the sound management of justice – a lack of judges, insufficient salaries, overly complex rules – and flaws regarding the protection of human rights – limitations of property rights for non-Bulgarian citizens, insufficient protection of the Roma minority, and police inflicting inhuman and degrading treatment on persons in detention, with a lack of judicial proceedings. Especially on minority rights and the protection of minorities, the situation was unsatisfactory, with between 15% and 18% of the Bulgarian population consisting of minorities, but no participation in the Council of Europe's framework Convention on minorities, nor any national protection, despite improvements for the Turkish minority.²⁷ As with Romania in 1997, of the 133 pages of the report, only 7 concerned political criteria. In this report, the Commission pointed out the existence of a ‘genuine multi-party system’,²⁸ with the prohibition of political parties set up on an ethnic or religious basis, but the guarantee of free participation in elections. The Bulgarian system is described as a presidential system, with a single chamber of Parliament, a President directly elected by universal suffrage and a VP, and these institutions ‘operate[d] smoothly’.²⁹ The Commission noticed in 1997 the lack of financial independence of local authorities, corruption as a serious problem – somehow because there was no Civil Service Act and a control by political parties of the Civil Service – and an insufficient control of the secret services, specifically the lack of accountability to Parliament. Finally, regarding the functioning of the Judiciary, the Commission noticed the shortage of qualified judges,³⁰ which led to courts overburdened with work and excessive time to obtain a judgement.

Regarding these points, the constitutional reform of 2007 seems interesting. For example, in 1997, the Commission warned about the impossibility for non-Bulgarian citizens to possess land in Bulgaria, except in the case of inheritance: the revision of 2007 indicates that foreigners and legal persons can acquire property rights on land under the conditions created by the accession to the EU. Nevertheless, this modification seems to be a good illustration of the impact of the acquis and common market on one fundamental right limitation, in this case property rights. So, this is not really an illustration of the impact of EU identity on constitutional identity because the core motivation is the market and not values. Nevertheless, regardless of the main motivation behind this modification, it has had a massive impact on how property rights are managed in Bulgaria, and so is a part of national constitutional identity.

Regarding the sound management of the justice system, both the reform of 2006 and that of 2007 clarified the functioning of the prosecution, but also enacted the non-removability of judges, and finally specified the mission of the National Judiciary Council. So, as regards these points, it seems the Commission's concerns were considered, and in these areas the core motivation is the EU identity.

Regarding the protection of the Roma minority, there is no data, because there is not a single reference to the term ‘minority’ in the Bulgarian Constitution, so it is impossible to show any influence of the EU identity on Bulgarian constitutional identity. In fact, the lack of reference to this concept is a proof of the lack of influence of EU identity, because this concept is clearly one of the EU values, according to Article 2 TEU. The difficulty for some countries in recognizing minorities' rights and protecting them in their Constitution is not a Bulgarian specificity: you can find the same silence in the French constitution. A new constitutional reform has been announced by the ruling political party, the GERB, without any follow-up, but it seemed to be more a revitalization of the State, according to the former Prime Minister Borissov, than a consideration for EU identity. Furthermore, we must note that the CVM was ended by the Commission in 2019, despite the lack of clear progress on some topics, especially corruption.³¹ Here too, it shows that despite all the protection of the rule of law existing in the Constitution, constitutional identity as an analysis of a constitutional text can be limited by the legislative practice in the relevant State.

6 Conclusions

The examples chosen were the most significant ones illustrating this link between Commission monitoring regarding EU accession and constitutional revision, and they show some interesting points.

Some authors see constitutional identity as a concept detrimental to European integration, or as a tool used by national constitutional courts to protect themselves against EU law. From a jurisdictional point of view, the ECJ uses constitutional identity as a part of a proportionality test, as has been summarized by Werner Vandenbruwaene, ‘If a matter is closely related to the core of a member's state constitutional identity, the margin of appreciation can be larger’³²: The Sayn-Wittgenstein case or the Aranyosi and Căldăru case reinforced this conception. The recent press release from the Romanian Constitutional Court after the Euro-box decision went along the same path, affirming the need to amend the constitution to respect the ECJ decision, as did the decision of the Polish Constitutional Tribunal of 7 October 2021. Nevertheless, these issues must not limit what constitutional identity is. By affirming a set of values and rules, a constitution organizes the state, but also places it in a specific cultural and legal environment. A constitution is a mixture of the aspiration of the people, the need for the state and the inspiration from other countries. The European integration reinforces this inspiration by establishing certain criteria which have an impact on which values found the national constitution. Consequently, EU political identity has an influence on the identity of European States, especially the latest accession countries. Because EU political identity was formalized for the enlargement to Eastern and Central Europa countries, the impact of this identity is much clearer in these countries. This impact should be seen as a sort of Western colonialism, by setting a standard of what a European State should be: democratic, protecting the rule of law and civil and political human rights. This impact is more difficult to perceive in original EU Member States, because this standard seems to be too obvious to be precise. Nonetheless, if we focus on constitutional law, today the 27 Member States comply with this standard: all constitutions assert a democratic model, with an affirmation of the rule of law and of the respect for human rights.

This is perhaps the flaw regarding the impact of EU political identity on Member States' constitutional identity: focus on the text and not on the spirit. As Timea Drinóczi showed, being a post-socialist country has an impact on the constitution's spirit, especially on the preamble, which emphasizes national traditions, morals and values, ‘as a reaction to the decades-long oppression by the Soviet Union’.³³ The German Basic Law was conceived as a reaction to the Nazi regime, and the Spanish constitution as the rebirth of the Spanish constitution after the dictatorship. Each constitution is born in a specific context, giving it a specific spirit. Despite all the Commission's recommendations, reports and monitoring, the impact of EU political identity on Constitutions is limited to the text: there is no place, and no way, to enact the emergence of an EU political spirit, except the development of a European model. For this, there is no feasible monitoring system. Moreover, the mere proclamation of rights in the Constitution is insufficient to ensure a strong democracy: the top ten Democracies in the world protect an average of 34 rights in their constitutions, fewer than Bulgaria and Romania.

In conclusion, the EU political identity impacts constitutional identity, because of the pre-accession monitoring, but only in limited fields.

Firstly, the monitoring before the accession made by the Commission seems to be one of the best tools to change the constitution of a State in a precise way. It is linked to the constitutional identity of these Member States because the place given to the independence of the judiciary or to the concept of minority is clearly a choice regarding identity. As has been noted above, France does not protect minority rights, because it does not consider the concept of a minority, as its identity rejects this concept. The will to join to the EU, perceived as a way of ensuring good economic growth for the country, allows constitutional modification in a way which ensures respect for EU identity. The constitutional modification can be understood as an expression of a ‘win-win’ situation: the State joins the EU, and the EU improves its identity by the harmonization of some constitutional conceptions, such as the respect of the rule of law. So, in this hypothesis, the rule of law backlash can be seen as the limit of this ‘win-win’ scenario: because EU action does not meet governmental expectations, constitutional and legal harmonization shall be restricted or suppressed.

Secondly, this impact exists only in fields which are concerned with Commission monitoring. These fields are quite wide: the content of some fundamental rights, the independence of the judiciary, free and fair elections, and the fight against corruption. Nevertheless, some constitutional choices, such as the nature of the regime – presidential, semi-presidential, parliamentary – remains a discretionary choice by the Member State. Thus, the impact of EU identity on Member State constitutional identity is limited by the edges of this constitutional identity. In fact, this constitutional identity can also contribute to limit the application of EU law, as we saw in the Sayn-Wittgenstein case, but this remains the exception.