INTERNATIONAL AND EUROPEAN LAW
The Elusive Contours of Constitutional Identity:
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
case law of the
(BVerfG) and the
doctrine of the Italian
. 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
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
, 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
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: firstname.lastname@example.org, email@example.com.
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.