Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty

Abstract

The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication.

The paradox of judicial dialogue with the European Court of Justice in an illiberal democracy: The recent experience with the Hungarian Constitutional Cour

“…The notion of constitutional identity (Besselink, 2010) and its use as a potential bulwark protecting the nation against the primacy of EU law (von Bogdandy and Schill, 2011) can be traced back, in a way, to the HCC's pre-accession ruling in Decision 32/1998 (VI.25) AB on the constitutionality of the then extant Europe (Association) Agreement between the European Community and Hungary (Tatham, 1999). In developing its approach -particularly within the context of the new Fundamental Law and the migration crisis -the German Federal Constitutional Court (GFCC) and its case law has profoundly influenced the HCC in its decision making (Tatham, 2013: 135-203).…”

Thirty Years of the Concept of National Identity in the Primary Law of the European Union: Clearly Unclear?

“…Von Bogdandy writes about the need to perceive, before any interpretation of the term identity, two different meanings of the term idem, since the term originates therefrom. (Bogdandy & Schill, 2011, s. 1428. He points to two understandings of this term, an objective understanding and a subjective understanding.…”

“…In the subjective understanding, identity is the result of spiritual and mental processes that express a certain belonging to something/someone. (Bogdandy & Schill, 2011, s. 1428. According to Von Bogdandy, when defining identity as contained in EU primary law, it is necessary to consider both interpretive perspectives.…”

“…Even though the concept of national identity in Article 4(2) Treaty of the European Union (TEU) refers to the elements included in political and constitutional systems, objective understanding. The subjective understanding deals with democratic states deriving their legitimacy from their citizens who identify with the state, hence it represents all mechanisms that form or that support identification with the state (Bogdandy & Schill, 2011, s. 1429).…”

“…Moreover, even when defining national identity through grammatical interpretation, we will not reach conclusions about what exactly is contained in this term. (Bogdandy & Schill, 2011, p. 1428-1429 However, Article 4(2) TEU refers to what is relevant for determining the content of national identity. The national identity will thus be an element contained in the fundamental constitutional and political structures, in other words, it will be the fundamental elements of the constitution, which are considered the core of the constitution of the Member State.…”