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.
The relationship between the legal orders of the EU and the Member States is not only defined in the Treaties but also through a variety of finer, less imposing manners in which spheres of legal influence (rather than areas of competence strictu sensu) of the EU and the Member States interact. Focusing on fundamental rights jurisprudence and the “constitutional traditions common to the Member States” standard, this paper provides a historical narrative on the role constitutional traditions of Member States (CCTs) have played in the evolution of fundamental rights in EU law through the jurisprudence of the CJEU. It argues that before the proclamation of the Charter in December 2000, CCTs played a crucial part in bringing rights to the fore of Community law – it was through comparative considerations and references to CCTs that fundamental rights were invented by the Court.
One of the methods for overcoming impasses in the EU's legal setup has been differentiation between MS. The paper will analyse the reasons behind the adopted forms of differentiation, focusing on legal preconditions. The main question is whether national constitutional concerns played a role in the adoption of any of these solutions. Where (quasi-)federal states adopt similar differentiation between their constituent parts (asymmetry), importance is given to reasons, including constitutional, for asymmetry, since they may play a role when granting some constituent parts an asymmetric position. If it is confirmed that there exists a correlation between national constitutional concerns and differentiation, there would exist a level of constitutional contingency of differentiation among MS. In that sense, differentiation could be explained as a tool for the realization of respect of (constitutional) diversity in the EU.
A theoretical split between traditional and contemporary federal theories generates two important aspects linked to constitutional asymmetries: firstly, the understanding of the stability of the constitutional system; and secondly, related to the first, the potentials of using constitutional asymmetries as a federal device in conflict accommodation. Unlike the traditional federal approach, the contemporary federal perspective remains open for dynamic interpretation of stability and for discussing the application of constitutional asymmetries as a tool ensuring the stability of the system. To that end, the paper explores: firstly, the theoretical split between traditional and contemporary federal theory with regards to multi-tiredness, multinationalism, and constitutional asymmetry; secondly, its effects on the stability of a system; and thirdly, prospects about using constitutional asymmetry in conflict accommodation.
The EU fundamental rights operate in a multileveled and intertwined equilibrium. Notwithstanding its pluralistic composite, the traditional doctrine is still widely based on the perception that full harmonization is a desirable and feasible approach. The paper identifies the inevitable contradiction of such understanding with the very nature of its sources, various standards and the necessary reflection on constitutional identities. Hence, it concludes that only a necessary “safety net” may be achieved or aspired to. In addition, the paper then critically scrutinizes the minimum standard of protection. While aspiring to pluralistic, decentralised and context-specific understandings, this alternative considerably contributes to different dilemma. It seriously undermines the unity and effectiveness of the EU law, creates a composite structure with ambiguous combinations of varying national and supranational standards and it opens up the Pandora's box for potential national abuses.
Constitutional pluralism was born in the days of liberal constitutional triumphalism, when the commitment of all actors to the values of liberal constitutionalism was uncritically assumed. But 25 years after its inception, these assumptions seem increasingly shaky. With the rise of authoritarian populism in parts of Europe, it has been argued that it is time to definitively replace pluralism with uncontested primacy of EU Law. However, the lack of constitutional consensus in the EU just as much erodes the assumptions underlying the demand for uncontested EU law primacy as those underlying some principled form of constitutional pluralism. I argue that, in the age of ‘constitutional bad faith', normative theory must be recalibrated: we need to shift from ideal to nonideal theory in thinking about the European legal order. We can no longer assume that all actors within the European legal order would feel addressed by our normative demands, and normative theory should reflect this.