The Constitutional Identity of the EU as a Counterbalance for Unconstitutional Constitutional Identities of the Member States

Abstract

This working paper takes a legal perspective and is conscious of the contested nature of the term constitutional identity. As the term appears in the TEU and, in the last 15 years, has been used by different apex courts, it draws on the mentioned trend of using constitutional identity as a legal argument against EU obligations or creating constitutional law arguments for this purpose. Thus, the working paper claims that the mandate to respect constitutional identities, as stated in Article 4(2) TEU, finds a limit in the respect for EU constitutional identity. The fact that the concept of EU constitutional identity received recognition in two recent decisions of the Court of Justice of the EU (CJEU), issued in February 2022, makes this claim even more timely and relevant. It is also proposed that the EU constitutional identity could be identified in the same manner most Member States identify constitutional identity. Therefore, it is argued that constitutional identity is a concept both applicable to the EU and the EU Member States, and to make these concepts compatible, Member States’ constitutional identities are to be respected as long as they are not incompatible with EU constitutional identity, consisting of fundamental principles of constitutionalism. In other words, EU constitutional identities are to be respected as long as they are not unconstitutional constitutional identities.

To this end, the working paper will first move from the state of the art of the scholarly debate around Member States’ constitutional identities. In Section 2, the working paper locates the concept(s) of constitutional identity within a strict theoretical frame and identifies the European specificities of the discourse around constitutional identity. It investigates how the concept of constitutional identity was constitutionalised and applied at the EU level. The following section deals with the abuse of constitutional identity by the two renegade Members States of the EU, Hungary and Poland, and contrasts them with the German and Italian dialogical approaches. Section 4 conceptualises European constitutional identity by locating its “untouchable core” into the broader context of a wider conceptual map, by analysing different dimensions of the concept at the European level. It also explains why this identity is important for the European integration project.

Keywords: constitutional identity, European Union, democratic backsliding, regression, abuse, misuse