Constitutionalism and the Many Faces of Federalism

Collective Identity as a Legal Limit to European Integration in Areas of Core State Powers*

“…The legal explanation why this competence creep remains possible, despite the various iterations in the Lisbon Treaty of the conferral principle, harmonization prohibitions, national autonomy ‘angst clauses’ (von Bogdandy and Bast, ) and competence reservations, is because these limits generally apply only to direct legislative action by the EU and not to indirect action (on other legal bases), non‐legislative action (such as policy coordination) or action outside the EU framework altogether (such as the European Stability Mechanism Treaty or the Bologna Process). The CJEU has indeed persistently refused to acknowledge any ‘nucleus of national sovereignty’ that can be invoked as such against the EU (Lenaerts, ). Thus, for instance, even where the treaties state that the EU shall ‘fully [respect] the responsibility of the Member States for the content of teaching and the organisation of education systems’ (Article 165(1) TFEU), that the ‘Treaties shall in no way prejudice the rules in Member States governing the system of property ownership’ (Article 345 TFEU), that in areas of complementary EU competence such as culture and health ‘legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States’ laws or regulations’ (Article 2(5) TFEU) or that ‘national security remains the sole responsibility of each Member State’ (Article 4(2) TFEU), this does not preclude the EU from liberalizing economic sectors, from pushing member states to introduce competitive mechanisms for higher education funding, from adopting legislation banning tobacco advertisements, or from prohibiting a member state from expelling a foreign criminal.…”

“…As discussed in Section Ia, the CJEU has held that member states have permanently limited their sovereign rights in ‘ever wider fields’ and it has refused to acknowledge any ‘nucleus of national sovereignty’ that can be invoked as such against the EU (Lenaerts, ). Any EU law takes precedence over any national law in any area, and member states need to exercise all their competences concordant with their positive and negative obligations under EU law, regardless of whether the EU's competence is limited, or even excluded, in that area or whether the issue is considered central to national identity.…”

The ECJ's Construction of an EU Mobility Regime‐Judicialization and the Posting of Third‐country Nationals

“…The ECJ then overruled such measures as they were impinging on – for example – Community free‐movement policy (Weiler, ). Hence, Lenaerts (, p. 220) concluded: ‘there simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community'.…”

Why EU Law Claims Supremacy

“…96 To put it more directly, under EU law, 'there simply is no nucleus of sovereignty that the Member States can invoke, as such, against the [EU]'. 97 Hence comprehensiveness of EU law lies not so much in its policy powers, but in the unlimited field of application of its law within its jurisdiction. In this regard, the EU legal system is similar to national legal systems in that the latter's jurisdiction is also constrained, at least geographically and temporally.…”