Sovereignty – Out, Constitutional Identity – In: The 'Core Areas' Controversy in the European Union

Abstract

The Lisbon Treaty has sparked a new round of debate about the nature of membership in the European Union. Constitutional courts of Germany and Czech Republic played a prominent role in this debate. While the former famously argued in favor of the existence of the “core areas” of state competences, which are “particularly sensitive for the ability of a constitutional state to democratically shape itself”, the latter refrained from determining in advance and in abstracto what might be the ultimate defining elements of a “sovereign democratic state governed by the rule of law”. After briefly presenting arguments of both courts, I will argue that this debate highlights heuristic limitations of the concept of sovereignty in addressing intricate problems related to the nature of state membership in the European supranational polity. In that respect, Bundesverfassungsgericht seemed to be justified on relying on a somewhat novel theoretical concept of constitutional identity. It is, however, debatable whether it was also justified in providing a closed list of competences, which allegedly constitute an “inviolable core” of this identity that would be destroyed were these competences to be transferred to the EU level. This stance will be challenged and contrasted with a more restrained attitude of the Czech Constitutional Court.