The impact of EU identity on constitutional identities • (original) (raw)
Related papers
Constitutional identity and European Union axiology – perspective of Central European States, 2022
Before the issue of national and constitutional identity is considered in the context of the EU, I will give a brief overview of the content and significance of these two categories. The constitutional theory is a treasure chest of a variety of opinions, positions, concepts, etc. which determine the essence and the meaning of the term “constitutional identity.” In the EU, but also in some member states of the Union, often used as synonyms, the “constitutional identity” is also considered as “identity of the constitution.” The link that joins them all is the position that the constitutional identity of one country is, in fact, an institutionalized and collective political identity of that country that all citizens identify or bond with within the national constitutional order.
EUROPEAN UNION AND IDENTITIES (CONSTITUTIONAL/NATIONAL VS EUROPEAN DIMENSION)
Politcal Thought, 2022
The protection of national identity is an impossible mission without insisting on protecting its constitutional specifics, or in other words, national identity is the second face of constitutional identity. Without a protected constitutional identity, there is no complete national identity of the country and vice versa. Although no founding treaty of the EU mentions the constitutional identity, it is found and confirmed in a broader axiological meaning in the national identity of each member state of the Union. And again the same question posed above in the analysis: what is national identity if not part of the constitutional identity, and can we talk about the national identity of a country without it being partially or completely perceived through the prism of the continuity of the constitutional identity development of the country if it is known that exactly that constitutional development contains the contours and values of the national identity of the country? From the analysis, we can conclude that the connection of the national with the constitutional identity is part of the practice of the EU member states’ constitutional courts that favor that relation as a natural course of society’s development. The question of constitutional identity becomes more complicated when viewed through the lens of the functioning of the EU and, in that sense, the position of the EU Court of Justice. Although Article 4 (2) of the EU Treaty does not contain the values that make up national identity, the fact is that the range of values is not limited with each EU member state having the right to decide which values are important to enter into the content of this principle.
Constitutional Identity in the EU—A Shield or a Sword?
German Law Journal, 2017
This Article consists of five sections. In the first section, it describes why identity questions matter, particularly in Europe. In the second section, the Article tackles the issue of multiple structural ambiguities affecting the concept of constitutional identity in the European constitutional vocabulary. In the third section, the Article explores trends concerning the use of constitutional identity in the European legal discourse and practice, including the development of alternative interpretations and applications of the notion of constitutional identities in the Member States. The fourth section of the Article combines the analytical accounts outlined in the second section with the trends identified in the third section, contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly. The final section of this Article draws some conclusions.
Sovereignty and Constitutional Identity in European Integration
2019
THE scientific public opinion in Europe now considers the concept of constitutional identity as a highlighted issue. There are some who interpret it as the manifestation of a conflict in Europe. Nevertheless, the constitutional identity is a bridge between the Member States and the EU rather than a river washing away the achievements of the integration. The concept of constitutional identity appears in the Anglo-Saxon legal systems (or legal literary conceptions) and in the supranational system of European integration under different lights and approaches. While in Anglo-Saxon approaches, the interpretation of legal institutions in conformity with the Constitution is understood under it 1 , the European concept seems to be applied when possible conflicts between the legal system of the European supranational space and certain provisions of the national constitutions of the Member States arise 2. In other words, the European concept intends to offer input for the determination of the nature of the relationship
National constitutional identity and European integration
2013
Introduction Why Constitutional Identity suddenly Matters: A tale of Brave states, a Mighty Union and the Decline of sovereignty alejandro saiz arnaiz and Carina alcoberro llivina 1. part i: the Concept of National Constitutional identity 1.1. From sovereignty to identity 1.2. sketching scope and meaning of the concept 2. part ii: National Constitutional identity in the aftermath of the Lisbontreaty 3. part iii: National Constitutional identity in the Jurisprudence of european Courts Chapter 1 two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People Jose luis Marti 1. introduction 2. two ideas of 'Constitutional identity' 2.1. The identity of the Constitution 2.2. The identity of the people 3. Conclusion Chapter 2 Methods of Identification of national Constitutional Identity Constance grewe 1. introduction 2. The typology of Constitutional amendments 2.1. The substantial conception of the revision 2.1.1. textual analysis 2.1.2. C...
Constitutional Identity in and on EU Terms
verfassungsblog.de/constitutional-identity-in-and-on-eu-terms, 2022
The EU protects national constitutional identities and does not protect national unconstitutional identities. This is the message the Court of Justice of the EU has sent with its decision of 16 of February 2022, in the cases initiated by Hungary and Poland about the rule-of-law conditionality mechanism, in which it ominously referred to the constitutional identity of the EU. Constitutional identity, according to the CJEU, is a key concept of public law and a fundamental pillar of the EU, so Member States constitutional identities may not be manipulated in such a way that turns into a violation of the constitutional identity of the EU.
Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach
German Law Journal , 2020
The issue of "constitutional identity" is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, "constitutional identity" in a legal context is suggested to be viewed as the "identity of the constitution." The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable "identity of the constitution" comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments , and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the "confrontational with EU law model," while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the "cooperative model with embedded identity." Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values-Germany and Italy. Another way of determining the content of "constitutional identity" is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.
The paper consists of five sections. In the first section the paper describes why identity questions matter and why they matter particularly in Europe. In the second section (" ambiguities ") the paper tackles the issue of multiple structural ambiguities affecting the concept of 'constitutional identity' in the European constitutional vocabulary. The exploration of these multiple ambiguities aims at developing a theoretical map, where different conceptions of the same concept will be clarified, moving from a constitutional law perspective. In this section, the paper claims that constitutional identity in the European legal debate may refer to the constitutional nature of the EU (" European constitutional identity ") or to the national constitutional identities of the Member States (" national constitutional identities "). Additionally, this section explores a further ambiguity of the concept, by making a distinction between constitutional identity as a reference to those characters that make one constitution different from another constitution (" constitutional identity as difference ") and those characters that are not subject to modification, neither by constitutional amendments nor by interpretative transformations (" constitutional identity despite difference "). In the third section (" trends "), the paper explores some trends concerning the use of constitutional identity in the European legal discourse and practice. This section will focus on the development of two main uses that national constitutional courts have made of the concept of constitutional identities of the member states. First, the concept has been used as a shield: national constitutional courts aimed at protecting constitutional identities against future and potential transformation of the European Union potentially violating their constitutional identities. On this front, national constitutional courts referred both to distinctive elements of their constitutions (" constitutional identity as difference ") and to fundamental principles of constitutionalism, that are part of their national constitutional unamendable cores (" constitutional identity despite difference ") and are largely shared in the common constitutional traditions. On a second front, national constitutional courts have been using constitutional identities as " swords ". In these cases, national courts did not use constitutional identities as limits to further and future integration, but as operative clauses needed to solve an existing conflict between EU law and national constitutional law. The fourth section of the paper investigates challenges and dilemmas that emerge by the application of the analytical categories outlined in the second section to the trends described in the third one. The paper claims that different conceptions and uses of constitutional identity have a different impact on the European composite constitutional adjudication and that the institutional and procedural framework should be calibrated accordingly. Finally, a specific case study will be explored (the so-called Taricco saga involving the Italian Constitutional Court and the ECJ), with the purpose of emphasizing the importance of taking judicial dialogue on constitutional identity seriously, so to avoid threating dangers pending on the future of the European integration process. The fifth and final section draws some conclusions.
This article provides an analysis of the functions performed by constitutional identity in constitutional discourses of both the EU and its Member States, in the context of emerging post-Westphalian and supranational constitutionalism. The analysis tries to demonstrate that constitutional identity may serve as one of the key normative ideologies, legitimation strategies and ordering schemes of EU constitutionalism. It reasserts through functional analysis the suitability of constitutional identity for organizing and explaining multiple constitutional orders in a non-hierarchical and inclusive way. The article is based on a socio-legal approach, deliberately avoiding the predominant legal realist and legal positivist discourses. This is due to the fact that a functional analysis presupposes admitting the existence of ideal, legal and socio-legal dimensions of constitutional concepts and institutions and the taking into account of social implications produced by their functioning. The article deliberately takes a constitutionalist stance on the EU and the EU integration. It is focused on the contribution of constitutional identity for the further constitutionalization of the EU from a socio-political and constitutionalist perspective.
UNIO – EU Law Journal
This article intends to reflect on the concept of constitutional identities of states in the frame of the dialectic relationship between the legal order of the European Union and the national legal orders. Both the conflictual dimension of the constitutional identity and the relations of confluence that that can maximize are explored. It concludes with an open and flexible understanding of the concept of constitutional identity which can benefit the evolution of the national constitutional law in an Europeist sense and the progressive transformation of the European legal system in aconstitutional sense.