The Use and Abuse of Constitutional Identity (Claims) in the European Union

The concept of constitutional identity and the corresponding constitutional identity clause of Article 4(2) TEU has been a hot topic of European law ever since its introduction with the Treaty of Maastricht. Conceived as a counterweight to the increased power(s) of the European Union and a symbol of protecting Member State sovereignty vis-à-vis the European Union, it reflects the need to balance between a supranational legal order and national diversity. The indeterminate legal nature and content of constitutional identity can make it difficult to judge constitutional identity claims made by Member States and their institutions. Whereas some claims were deemed valid by the CJEU, other recent constitutional identity claims are questionable and require closer examination concerning their compatibility with EU law. A closer examination of the use (and abuse) of constitutional identity claims should provide a clearer image of its content and its use as a shield and sword by Member States.