Any inquiry into ‘abuse’ of the concept of national constitutional identity presumes that one has a good view of what proper recourse to national identity as protected under Article 4(2) TEU requires. The paper will begin with an attempt to sketch such ideal view of the substance of the concept. The confusion on what exactly is covered by ‘constitutional identity’ has never really faded: does Article 4(2) TEU cover only institutional and structural issues, such as federalism and domestic separation of powers? Or does it also include value choices and national preferences over cultural and moral issues and fundamental rights, such as the Schuldprinzip in criminal law or conceptions on the institution of marriage? The paper then tests this view with the case law of the CJEU and national constitutional courts on ‘constitutional identity’ and reflects on whether ‘identity’ should be used as a tool to protect national preferences over cultural and moral values as well as fundamental rights.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!