A National Perspective on Constitutional Identity: Reflections on Czech Tradition and Constitutional Text

Member States invoke national or constitutional identity mainly to allow the current political majorities to avoid their obligation to comply with EU law. However, this concept also provides an opportunity to reflect on our own national and constitutional identity from a national perspective. There is an ongoing debate, sometimes even a struggle, in individual states over the content of national traditions shaping national and constitutional identity. At the national level, reflections on identity could lead to conclusions about how historical experience has been imprinted on the constitutional text, how national traditions are interpreted and how it affects the present. This paper will use the example of several provisions from the Czech constitutional order to show how they are embedded in the historical experience. It will then argue for the need to tell the story of the modern statehood emergence as a part of legitimising constitutionalism as well as European integration.

Thinking of and Working with Constitutional Identity

A prominent notion in comparative constitutional studies, constitutional identity has emerged as very controversial. Hailed as a shield against the aggressive expansion of federalism or as a useful weapon for the defence of human rights, the notion has equally been accused of denoting nationalism or dangerous essentialism. Drawing mostly on examples from Central and Eastern Europe, this paper will interrogate the ideological, legal and political assumptions behind this notion. It will do so against the background of “global constitutionalism”, that is the belief in a universal constitutional vocabulary. Thus, it will try to determine whether there is such a thing as constitutional identity and if so whether it can usefully operate in the realm of legal practice (constitutional adjudication).

Ethnic Homogeneity as a Part of National Identity? The CJEU’s Response to National Identity Claim concerning Relocation Mechanism

The binding relocation mechanism, as established in Council decisions 2015/1523 and 2015/1601, showed the EU is sharply divided on what is the practical meaning of solidarity in asylum and migration matters among members states (Article 80 TFEU). Later, infringement proceedings against Hungary, Poland and the Czech Republic for their non-compliance with relocation decisions (joined cases C-715/17, C-718/17, C-719/17) provided an opportunity to frame the issue as one affecting essential state functions and, consequently, national identity of these member states. This paper will argue that the response of the Court to the national identity claim did not depart substantially from the way the Court had dealt with Art 4(2) TEU arguments in the past. However, given the fact the argument rested on dubious cultural/ethnocentric understanding of national identity that is difficult to square within the limits of the concept, the Court should have responded more directly to its problematic parts.

Three Years with Coman: How Much Has Changed?

In 2018, the CJEU's judgment in Coman (C-673/16) dealt with free movement of same-sex spouses and its possible relation to national identity of Member States that do not recognize same-sex marriages. Looking back on the judgment after 3 years, this paper will review the academic reactions which ranged from criticism to celebration of the judgment. Using the example of the Czech Republic, it will then assess the judgment’s practical impact to see whether the initial expectations regarding future development came true, and identify potential barriers in the national law that could still hinder free movement of same-sex couples. Finally, the paper will discuss what lessons can be learnt from the Coman judgment for other similar cases before the CJEU, especially those concerning the status of children born to same-sex couples.

National Identity and Procedural Autonomy: Shadowy Compatriots or Strangers on a Train?

More than 25 years ago, we learned in Peterboeck that in assessing a violation of the principle of effectiveness by a national procedural norm, one must also consider a role the norm plays in a given procedure and its special features, viewed as a whole. Hence, basic principles of domestic judicial system had been considered and the analysis ceased to use EU law effectiveness as its single point of reference. In M.A.S., the invitation was finally accepted and an encounter between effectiveness and national identity occurred. This paper examines the interplay between procedural autonomy and its principle of effectiveness and respect for national identity as per Art 4(2) TEU. It will try to answer whether the encounter in M.A.S. has been an unlikely occurrence or whether the pairing of the two principles is, due to their nature, to be expected more frequently in the future; especially as the pairing seems to present a handy tool for governments in recent rule of law related proceedings.