The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity

• Author: Robbert Bruggeman, Joris Larik
• Position: Leiden University, NL
• Pages: 20-34

Robbert Bruggeman and Joris Larik, ‘The Elusive Contours

of Constitutional Identity:

Taricco

as a Missed Opportunity’

(2020) 35(1) Utrecht Journal of International and European

Law pp.20–34. DOI: https://doi.org/10.5334/ujiel.489

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

RESEARCH ARTICLE

The Elusive Contours of Constitutional Identity:

Taricco

as a Missed Opportunity

Robbert Bruggeman* and Joris Larik*

The primacy of EU law continues to be challenged by domestic courts relying on the notion of

constitutional identity. These challenges are no longer limited to the

Solange

case law of the

German

Bundesverfassungsgericht

(BVerfG) and the

controlimiti

doctrine of the Italian

Corte

Costituzionale

. More recently, the Hungarian Constitutional Court introduced the notion of

‘historical constitutional identity’ – at a time when the rule of law and independence of the

judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues

that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer

limits of constitutional identity under Article 4(2) of the Treaty on European Union in

Taricco II

.

Given prudential considerations as well as parallel legislative developments, it can be explained

why the CJEU chose to side-step the issue. However, in the

Corte Costituzionale

, the CJEU

found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify

these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The

next domestic court to raise this issue may be less interested in judicial dialogue and more in

undermining the primacy of EU law in ever more extensive ways.

Keywords: Primacy of EU Law; Constitutional Identity of the Member States; Court of Justice

of the European Union; Italian Constitutional Court; Fundamental Rights; Judicial Dialogue; Rule

of Law

I. Introduction

In a time when identity politics loom large,1 and at a time when parts of Europe are experiencing ‘rule of

law backsliding’,2 a fundamental legal question in need of clarification is that of constitutional identity. In

essence, it should enshrine some fundamental tenets of national identity and hallmarks of a country’s legal

order. It is about questions such as: Who are we as a political community? What are the essential character-

istics of our legal system? In the multilevel legal system of the European Union (EU), it is supposed to be a

realm protected and respected according to Article 4(2) of the Treaty on European Union (TEU) – a norm

that should take centre-stage in this debate, but which has not been elaborated on by the Court of Justice

of the European Union (CJEU) to date.

Article 4(2) TEU stipulates that the Union shall respect the ‘national identities, inherent in their funda-

mental structures, political and constitutional’ of the Member States. The CJEU’s jurisdiction over this clause

was excluded with regard to Article 6(3) of the TEU (Maastricht version), the forerunner of what is now

Article 4(2) TEU.3 This limitation was revoked in the Lisbon reform. The debate continues as to what the obli-

gation enshrined in Article 4(2) TEU precisely entails,4 and arguably it is time for the CJEU to finally chime in.

* Leiden University, NL. Contact: bruggeman.robbert@gmail.com, j.e.larik@luc.leidenuniv.nl.

1 Tanja Börzel and Thomas Risse, ‘From the euro to the Schengen crises: European integration theories, politicization, and identity

politics’ (2018) 25 JEPP 83; and Paul Taggart, ‘Populism in Western Europe’ in Cristóbal Rovira Kaltwasser et al. (eds), The Oxford

Handbook of Populism (OUP 2017) 248–63.

2 Lauren Pech and Kim Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 17 CYELS 3.

3 TEU (pre-Lisbon), art 46; Elke Cloots, National Identity in EU Law (OUP 2015) 65.

4 Gerhard van der Schyff, ‘Exploring Member State and European Union constitutional identity’ (2016) 22 EPL 227, 228; see further

Michael Rosenfeld, ‘Constitutional identity’ in Michael Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative

Constitutional Law (OUP 2012) 756.