Constitutional resistance to EU law: The courts and test of constitutional identity conflicts (original) (raw)
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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.
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.
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.
Constitutional identity in the jurisprudence of the Court of Justice of the European Union
Hungarian Journal of Legal Studies
Court rulings and publications on constitutional identity have spread in a sort of viral way since the entry into force of the Lisbon Treaty in 2009. Accordingly, many scholars analyse the possible sources of the term and the risks associated with its use, including the fact that opponents of constitutional democracy can use it as a great weapon, as there is no objective standard in terms of its content. In this regard two different positions can be distinguished concerning the function of the constitutional identity clause and the determination of the content elements of the constitutional identity. The first perspective looks at the notion of identity as a manifestation of Euroscepticism, according to which the identity clause is in fact a possible form of derogation under obligations deriving from European integration. In contrast, the second perspective leads to a cooperative interpretation of the concept of identity, if you like, an integration-friendly dissolution of the conce...
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
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.
The Position of the Principle of Respect for Constitutional Identity in EU Law
2017
The present article is an attempt to answer the question about the position of the principle of respect for constitutional identities of Member States and its impact on the application of EU law in the national legal order. For this purpose three areas will be considered. Firstly, the analysis of the principle of respect for national identity in EU law and in the case law of the Court of Justice will be conducted. Secondly, the principle of competence entrusted to the EU will be analysed, together with its interpretation at the EU level. Thirdly, the understanding of the notion of constitutional identity in the case law of Constitutional Courts of selected Member States will be considered. It proved that the principle of respect for constitutional identity is treated both at national and EU level as an integral part of the concept of “national identity”. The national identity has a broad meaning and refers to values that are cherished by a particular nation, which it considers to be...
The impact of EU identity on constitutional identities •
Hungarian Journal of Legal Studies
Since the Maastricht Treaty, two questions remain: what is the EU, and is there such as thing as an EU identity? Because of its specific nature, and in view of the political accession criteria, it seems there is an EU political identity. Consequently, the purpose of this article is to evaluate whether this EU political identity has had an impact on Member States' constitutional identity: because they were the latest countries to accede to the EU, but also because they were under a specific monitoring process, Bulgaria and Romania are the best examples of an EU influence, but only of a limited one.
German Law Journal, 2019
This article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration-more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined, but on the contrary strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. They are respectively part of two discourses (security and fundamental rights), which are an expression of the security of the European project as an overarching frame characterising the EU as a polity and a legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, the article concludes by emphasising the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed, as the EU reaches a more advanced stage of integration.
Constitutional identity, identities and constitutionalism in Europe
Hungarian Journal of Legal Studies
The notion of Constitutional Identity has attracted much scientific interest. However, it obscures, sometimes in a reductive manner, another legal reality: the existence of other identities, such as national, linguistic, and collective identities. Indeed, a reading of constitutions and constitutional court's decisions in Europe reveals a complex and evolving system of identities behind Constitutional Identity.This paper argues that identity is not just a political argument but also a legal and normative one. From a constitutional law perspective, two main categories can be distinguished: a real identity existing prior to the constitutional norm, and a fictitious identity subsequent to the constitutional norm. These identities are interdependent and are linked to each other; the constitutional courts referring to Constitutional Identity in order to maintain this interweaving. Therefore, Constitutional Identity plays an argumentative function and, by determining the interpretation...