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The Functions of Constitutional Identity Performed in the Context of Constitutionalization of the EU Order and Europeanization of the Legal Orders of EU Member States

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The Functions of Constitutional Identity Performed in the Context of Constitutionalization of the EU Order and Europeanization of the Legal Orders of EU Member States

Abstract

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.
DOI: 10.1515/pof-2017-0010 VOLUME 9, ISSUE 2, 2017
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ISSN: 2036-5438
The Functions of Constitutional Identity
Performed in the Context of Constitutionalization of
the EU Order and Europeanization of the Legal Orders
of EU Member States
by
Martin Belov
Perspectives on Federalism, Vol. 9, issue 2, 2017
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Abstract
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.
Key-words
constitutional identity, judicial dialogue, constitutional ideology, sovereignty,
supranational constitutionalism, legitimacy
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1. Taking Constitutional Identity’s Functions in the Establishment of
Constitutional Dimension of the EU Seriously
I
Every constitutional concept has its typical functionality. It is constructed in order to
perform specific functions in theoretical, positive legal and empirical discourses. This paper
is grounded on the idea that constitutional identity
II
as a constitutional concept has a tri-
dimensional functionality theoretical, legal and social, which is a result of the tri-
dimensionality of the constitution, perceived as ideal, legal and factual (Tanchev 2003: 112).
Constitutional identity is not only a legal concept. It is also an element of the
development of European constitutionalism when tackled as a civilization and a cultural
phenomenon.
III
That is why constitutional identity can also be perceived as part of the
development of the European constitutional civilization in the post-Westphalian age. Post-
Westphalian constitutionalism is the product of multiple factors, three of which have
special importance. These are: the emergence of supranational constitutionalism and global
governance; the information and mobility revolution; and the opening up of national
constitutional orders during the second half of the XX and the first decades of the XXI
century to international and supranational legal orders (Carozza 2008).
In this respect constitutional identity has the task of strengthening the constitutional
dimension of European integration, and the transformation of the EU into a constitutional,
rather that an only international or administrative union. Moreover, it must legitimize the
linkage of national constitutional systems, which are based on sovereignty and hierarchy,
with a supranational pluralistic constitutional order. Thus, constitutional identity is both a
conceptual challenge to Westphalian constitutional theory and constitutional law, and an
incentive for a novel constitutionalization of the EU using post-Westphalian constitutional
paradigms, concepts and normative ideologies. Constitutional identity is one of the first
elements of a new conceptual reality which must address the challenges to the classical
principles and concepts of Westphalian constitutionalism emerging from globalization, the
constitutionalization of international law and the opening of national constitutional orders
to supranational constitutional standards.
The mission of constitutional identity is to provide an alternative to holistic sovereignty
as a key principle of Westphalian constitutional law and hierarchy as predominant element
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of Westphalian constitutional geometry. This is necessary because both sovereignty and
hierarchy have conceptual, as well as pragmatic, problems when applied in the context of
global, supranational and post-national constitutionalism, the crisis of territoriality, and
constitutional pluralism. Moreover, normative entrenchment (e.g. in article 4, paragraph 2
of the Treaty of the European Union), theoretical debate and judicial dialogue on
constitutional identity enhances not only the administrative and regulatory dimension of
the relationship between the supranational legal order of the EU and the legal orders of
EU Member States (MS), but also the constitutional dimension.
Constitutional identity is among the new normative ideologies of post-Westphalian
supranational constitutionalism. Constitutional conceptualization of the new socio-legal
reality of a proliferation of constitutional regimes and pluralization of constitutional levels
can be achieved by the proper construction of the concept of constitutional identity and its
typical functionality.
IV
Hence it is necessary to delimit the functional catalogue of constitutional identity. This
will enable the clarification of the typical goals which can be achieved by putting into
practice of this relatively new concept.
Constitutional identity accomplishes several main functions which are partially
interrelated. These are the legitimation function, the safeguarding function, the linking
function, the differentiating function, the ideological function and the function of
constitutional and political self-understanding. All these functions contribute towards the
development of a constitutional dimension of the EU and for its transformation into a
post-national constitutional polity of states and people (van Gerven 2005: 34 - 52). Their
task is to substantiate the emergence of a composite constitutional order in which a
structuring of some of the main organizing principles of the Westphalian constitutionalism
sovereignty, hierarchy and a vertical separation of powers - are complemented by
constitutional identity as a more flexible concept, more adequate to the dynamics of
relations between the post-national constitutional system of the EU and the national
constitutional systems of its MS.
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2. Constitutional Identity as a Legitimation Strategy for the
Supranational Constitutionalism of the EU
The provision of constitutional identity in EU law and its conceptual development in
judicial dialogue between the Court of Justice of the EU (CJEU), and constitutional courts
of EU MS, are part of efforts for the establishment of a democratically legitimated
supranational constitutionalism, institutionalized as the EU. Every constitutional project
needs legitimation. This is especially true when it is grounded on novel, or reformulated,
supportive ideologies and concepts such as constitutional pluralism and multilevel
constitutionalism.
Constitutional identity is a point of intersection between post-Westphalian
constitutional ideology, post-national legitimacy and the constitutionalization of
international law which led to the emergence of supranational EU constitutionalism. This is
because it is at the same time an element of post-Westphalian constitutional theory, a
central argumentative and legitimation strategy of the theoretical, normative and
jurisprudential discourses in European constitutionalism at the beginning of the XXI
century, and a key principle of constitutional law of the EU.
The legitimation of the constitutionalization of the EU legal order can be grounded
predominantly on rational legitimacy;
V
since the EU is a relatively new system it does not
enjoy sufficient traditional legitimacy. It is a depersonalized system of rules and institutions
which is deliberately constructed as a non-leadership institutional scheme based on power
sharing and dispersion of political authority. Thus, the EU cannot also be legitimated
through charismatic legitimacy.
Consequently, the concept of constitutional identity must produce a rational legitimacy
for the transfer of constitutional competences from the MS to the EU, for the limitation of
MS’ sovereignty, and for the primacy of supranational legal standards adopted by the
institutions of the quasi-autopoietic
VI
EU constitutional system over the national
constitutions of MS. Some theorists even believe that constitutional identity may start to
function not only as a legitimation for the limitation of constitutional supremacy and the
state’s sovereignty regarding constitutional provisions and sovereignty aspects which are
not covered by its protective scope, but also transform into a post-Westphalian alternative
to sovereignty (von Bogdandy and Schill, 2011: 9). Thus, constitutional identity claims to
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become one of the key supportive normative ideologies of post-Westphalian constitutional
law.
Constitutional identity performs a legitimation function in respect of several
phenomena, which develop on the border between the supranational constitutionalism of
the EU, and the national constitutional systems of EU MS. It aims to legitimate the process
of transfer of constitutional competences and elements of state sovereignty from MS to the
EU. In this context, legitimacy may stem from the role of constitutional identity as a
safeguard for the inviolability and non-transferability of the core constitutional values,
principles and elements of the institutional design of MS.
The legitimation of the transfer of sovereignty may be grounded on different reasons.
It may stem from the substantive prosperity which EU citizens get from the EU, the
efficiency and problem solving capacity of the EU institutional system, and its capacity to
give adequate responses to challenges of globalization and the world risk society (Beck
1992) etc.
However, these are substantive criteria for the legitimation of a transfer of sovereignty.
Taken in isolation they are not safeguards for the preservation of fundamental values,
principles and institutions which have developed for centuries in national constitutional
systems, and have been enshrined in the civilization code of each of the national
communities participating in the EU. Hence, constitutional identity must serve as a
safeguard for the fundamental constitutional codes of national communities. It has to
legitimize the transfer of constitutional competences to the EU which are located outside
the value and institutional core of domestic constitutions and consequently also outside of
constitutional identity’s protective realm.
At the same time, constitutional identity legitimates the establishment of limitations to
the primacy of EU law. It creates historically, anthropologically or socio-politically
grounded legitimate exceptions, defined in legal terms by legislators, or much more
frequently by courts, which must selectively prevent the encroachment of the supranational
order of the EU into the domestic legal order of EU MS.
Consequently, constitutional identity is supposed to simultaneously legitimate the
linking and the separation of supranational and domestic legal orders, and outline the limits
to the mutual cross-fertilization of the constitutional orders of EU MS, resulting in
horizontal judicial dialogue, reception and transplantation (Watson 1993) of institutions,
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and in the migration of normative ideologies and ideas. It must more clearly define
commonalities and differences between EU constitutionalism and the constitutional
traditions of EU MS.
EU constitutionalism is itself a result of the creative mixture of constitutional solutions
and constitutional design borrowed from national constitutional models of EU MS, as well
as from third countries such as the USA. This makes the EU constitutional order
somewhat eclectic. The degree of heterogeneity increases if one considers the divergence of
national constitutional traditions, historical experiences and socio-legal contexts which have
shaped the constitutional design and constitutional ideology of EU MS.
An example is the mismatch between the republican traditions of France, Italy,
Germany, Austria and Central and Eastern European states, and the monarchical traditions
of Great Britain, Belgium, Netherlands, Luxemburg and most of the Scandinavian states.
Other important instances of incongruence concern the role of religion in society, and the
principle of secularism. Thus, the Polish, Romanian and Greek Constitutions put an
emphasis on the traditional role of religion as a national identity building factor. In that
context, the concept of constitutional identity may serve as a device for the adjustment of
the diversity and plurality of constitutional orders in the composite constitutional structure
of the EU, allowing for the primacy of EU law while considering important and legitimate
national sensitivities.
It should be noted that there is a fracture and internal schism in the function of
constitutional identity in generating a rational legitimacy for the linking of European and
domestic constitutional orders, and in shaping the demarcation line between constitutional
supremacy and EU law primacy. Identity, the result of a self-identification of citizens with
the basic outlook and the core parameters of constitutional design, is largely emotional, and
thus not a purely rational phenomenon. It rests upon beliefs which often produce imagined
reality. Thus, the shaping of collective identity is frequently an emotional process of
moulding the “collective Self” of a political community and not necessarily a rational
process of the negotiation of values, principles and institutions which should serve as
elements of constitutional identity.
Consequently, constitutional identity, which is supposed to rationally legitimize the
linking of national constitutional orders with the supranational constitutional order of the
EU, is based not only on rationality but also on emotional perceptions, affiliations and
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motives. That is why constitutional identity is an element of both “emotional” and
“rational” constitutionalism. It is part of the normative ideology of post-Westphalian
European constitutionalism, and can eventually become part of the collective beliefs of EU
citizens regarding the constitutional pillars of their constitutional and political coexistence.
Thus, constitutional identity is also a component of the psychological dimension of law
and of the emotional discourse of constitutionalism.
Constitutional identity has a legal shape defined through its institutional components.
They can be explicitly proclaimed by the constitutional legislator or - much more frequently
- defined by constitutional and supreme courts based on rational judicial argumentation.
Hence constitutional identity is a phenomenon which is not speculative. This is because
constitutional identity has concrete legal components;
VII
it is part of the normative legal
discourse and of the rational constitutionalism. However, constitutional identity cannot be
exhaustively rationally proven through legal arguments.
VIII
Consequently, it seems that the idea for rationalizing the linking of national and EU
constitutional orders, based on the legitimation of the transfer of sovereignty through the
establishment of safeguards for national constitutional identity, may be grounded on a
“constructive mistake”. For it consists of an attempt at generating rational legitimacy via a
concept which is preconditioned upon emotions, beliefs and convictions.
This is why the legitimation function of constitutional identity may sometimes produce
negligible results in political practice; the generation of legitimacy is an affective process
which can hardly be accomplished through direct constitutional engineering (Sartori 1994)
and theoretical or jurisprudential construction of complex and even vague concepts such as
constitutional identity.
Constitutional identity is also a presumptive bearer of traditional legitimacy. It might be
perceived of as a product of socio-legal practices and processes, which shape with time the
value and institutional consensus of a political community, and produce its constitutional
identity. Time is an important factor in forming constitutional identity. The time
dependency of constitutional identity is exactly the reason why it can be suggested that
constitutional identity might produce traditional legitimacy. In other words, an assumption
of the evolutionary character of constitutional identity, and its gradual construction in the
course of national constitutional history, led to an expectation that it contains at least some
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of the key elements of constitutional tradition and constitutional culture of a political
community.
Constitutional identity, as a bearer of traditional legitimacy, should contain the
transgenerational consensus of a political community. Thus, its entrenchment through
explicit institutionalization in national constitutions or in EU constitutional law, its
definition via judicial dialogue, and its preservation by virtue of limitation of the primacy of
the EU law, produces legitimacy for parallel processes of the constitutionalization of EU
law, the Europeanization of national constitutional law and the safeguarding of the
domestic constitutional core.
It must be re-emphasized that the legitimation of the establishment of supranational
constitutionalism of the EU, and of the emergence of global constitutionalism by virtue of
preservation of the fundamental values, principles and institution for each of the
participating states, is not a purely rational process. Thus, the legitimation function of
constitutional identity, in its rational as well as traditional dimensions, may prove to be, to
some extent, an artificial construction due to its great dependence on rational
constitutionalism and the neglect of its emotional aspect. This is an important issue, since
the concept of constitutional identity was launched in constitutional discourse with the
precise idea of justifying its potential as a novel way of combining principles and concepts
which otherwise are nearly irreconcilable. These are the primacy of EU law and the transfer
of sovereignty, on the one hand, and the supremacy of national constitutions and holistic
and indivisible sovereignty, on the other.
As a matter of fact, the stagnation of the process of constitutionalization of the EU is,
to a great extent, the result of an inability to adopt clearer decision regarding the
distribution of sovereignty shaped in the context of classic theoretical and legal solutions of
the Westphalian constitutionalism. Compromise theories such as “pooling of
sovereignties” (MacCormick 1999) have provided satisfactory explanations for a while,
until the political and constitutional dimension of the EU rose to unprecedented levels.
The holistic version of Westphalian sovereignty has become fragmented into sector-based
humanitarian, financial and other sovereignties (Kalmo and Skinner 2010). Last but not
least, the EU MS’ control over ultimate decision making in important spheres of
transferred sovereignty became increasingly limited, although the EU did not become
sovereign in their place. This problem is a consequence of the broader, and principle, issue
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of the impossibility to grasp and master the new reality of supranational constitutionalism
with the conceptual schemes of Westphalian constitutional law developed during the “long
XIX century” (Hobsbawm 1996).
In that sense constitutional identity will continue to have an importance in EU
constitutionalism to compensate for the lack of clearer solution regarding political
sovereignty and legal hierarchy. Constitutional identity is also useful in the context of
global constitutionalism based on constitutional pluralism, as they are both non-
hierarchical phenomena. In other words, constitutional identity is a concept which has the
potential to legitimate the linking and differentiation of networked, polycentric or semi-
hierarchical constitutional orders. Constitutional identity diminishes in importance as a
legitimation concept and strategy in the case of an existence of a clear hierarchy, e.g. in the
form of a Kelsenian normative pyramid, and in the context of straightforward hierarchical
solutions regarding the structure of power, authority and sovereignty.
Another important problem forming a partial impediment to the legitimation function
of constitutional identity involves the fragmentation of legitimation. The overall
legitimation of the relative primacy of EU law over domestic constitutions, produced by
constitutional identity, is accomplished not only at the EU level but (until Brexit) in 28
different, and even to some extent divergent, constitutional contexts. In other words, the
establishment of the relative primacy of EU law, or the countervailing preservation of the
relative supremacy of domestic constitutions, does not draw its legitimization from
European citizens as holistic political community, but from domestic political communities
the MS’ nations. Moreover, this legitimation is not only jurisdictionally fragmented, but
also asymmetric with regard to the argumentative strategies used by national constitutional
courts in judicial dialogue with the CJEU, as well as by national politicians.
This is another manifestation of the “no demos” problem,
IX
this time targeting the
capability of constitutional identity to serve a pan-European legitimation function. Such a
function is possible, but only through an understanding of a composite European public
which is fragmented into a plurality of national constitutional communities.
X
3. The Safeguarding Function of Constitutional Identity. Constitutional
Identity as Safeguard, Complement or Alternative to State Sovereignty?
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The safeguarding function of constitutional identity consists of several interrelated
processes: the protection of the inviolable core of national constitutionalism through its
definition, the delimitation of lines which must not be crossed in the course of the
encroachment of supranational constitutionalism into the national constitutional order, and
the provision of substantial limitations for the transfer of constitutional competences and
sovereignty to supranational regimes.
XI
Constitutional identity is a safeguard for the preservation of the core of state
sovereignty, or of those aspects of sovereignty which are defined as essential and inviolable
by the constitutional legislator or by constitutional courts. This is due to the inclusion of
some of sovereignty’s key aspects in the scope of constitutional identity.
Sovereignty is traditionally understood as an existential category which is closely related
to state authority and public power. It is principally provided by constitutions with regard
to its essential features, and in respect of its fundamental role as the cornerstone of
Westphalian statehood. Sovereignty is proclaimed as a holistic and indivisible phenomenon,
which assigns supreme power and defines the supreme power center. Thus constitutions
neither explicitly acknowledge its main aspects nor delimit its components.
In contrast, constitutional identity, developed via judicial dialogue, is composed of
concrete principles, values and institutions which are defined as non-transferrable elements
of the state’s sovereignty. Thus, constitutional identity is a naturally composite concept,
which permits the construction, deconstruction and reconstruction of its structure and
content; whereas sovereignty in its classical Westphalian outlook applied during the age of
Modernity is a holistic concept which cannot be disaggregated into particles if it is to
preserve its role as the supreme source and depository of public power.
However, since the last decades of the XX century state sovereignty underwent a
process of fragmentation, produced by the proliferation of the public power functions and
public power centers and levels, and the pluralization and diversification of sovereignty
holders. The fragmentation and deconstruction of sovereignty is paralleled by two
processes. The first is the asymmetric transfer of state sovereignty to supranational and,
implicitly, to subnational holders, in the course of EU integration, constitutional
globalization and subnational constitutionalization. The second is the sharing of state
sovereignty with new power centers that have emerged in the course of the development of
constitutional pluralism and global governance.
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Consequently, new post-Westphalian theories of sovereignty, in itself the predominant
Westphalian constitutional concept, have developed in order to explain the structural
changes of sovereignty in the context of global constitutionalism, supranational
constitutionalism and global governance. They proclaim the possibility of fragmentation of
sovereignty, for sovereignty pooling (Keohane 2002: 746 749) and for the understanding
of sovereignty as no longer existential and normative, but as a limited and attributive
paradigm (Grimm 2015: 71-75, 120-121).
Hence constitutional identity as a post-Westphalian concept does not safeguard
sovereignty in its traditional version as holistic category, but in its current version as a
composite phenomenon; it puts the emphasis on separate aspects of sovereignty,
constructing them as sectoral sovereignties. Thus, constitutional identity accomplishes its
safeguarding function regarding sovereignty by protecting its specific manifestations in the
constitutional axiology (constitutional principles and values) and in institutional design.
Consequently, constitutional identity indirectly serves as a safeguard of sovereignty in
the process of providing direct safeguards for specific elements of value and institutional
design, against the primacy of supranational legal standards. This mediated and indirect
protection of state sovereignty by constitutional identity is a result of differences in their
nature.
Constitutional identity is a category which is related to a self-identification by the
political community with the fundamental aspects and cornerstones of national
constitutionalism. It is focused on giving answers to the questions: “who we are as a
constitutionally organized political community”; “what is our collective constitutional Self”;
“what are the durable characteristics of our constitutional tradition”; “what differentiates us
from other constitutionally organized political communities”; and “what is the core of our
value and institutional constitutional consensus”.
At the same time sovereignty is a category which determines the ultimate source,
subject and beneficiary of power
XII
and delimits the legitimate confines of state authority.
Sovereignty is a concept which should give an answer to the questions: “where is the power
center of the constitutionally organized political community”; “who possesses supreme
power and the legitimate monopoly over public coercion” (Weber 1922); and “what are the
parameters of the accomplishment of power and authority perceived as legitimate by the
political community”. Hence constitutional identity demonstrates the value and
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institutional core consensus of the political community encoded in the constitution,
ultimately derived from tradition, whereas sovereignty defines the power center, the source
of constitutional ontology, the scheme of power lines, and the basic structure of authority
enshrined in the constitutional model of society.
That is why constitutional identity cannot serve as an all-encompassing justification for
limiting the primacy of EU law in all spheres of domestic constitutionalism. Constitutional
identity may protect only those aspects of sovereignty which are directly related (or in fact
proclaimed by constitutional courts or constitutional legislators to be related) to hard-core
elements of constitutional consensus produced by the constitutional self-identification of a
community.
Moreover, constitutional identity should not serve as a broad instrument for the
limitation of the primacy of EU law used by the domestic political elites for tactical
reasons. It is a selective limitation to the primacy of EU, and other, supranational
constitutional and legal standards because it protects only some of the core elements of
constitutional design. If constitutional identity is also interpreted as being an instrument for
limiting of the primacy of EU law, with regard to non-essential but otherwise important
elements of the constitutional design
XIII
, then it will turn itself into something like an
unamendable or entrenched clause. However, constitutional identity and unamendable and
entrenched clauses are concepts with a different teleology and frequently with different
content.
XIV
Another aspect of the safeguarding function of constitutional identity concerns its role
as a guarantor of the supremacy of the constitution and thus for constitutionally enshrined
values, principles and institutions.
XV
The role of constitutional identity as a safeguard for
constitutional supremacy is the formal expression of its safeguarding function over state
sovereignty. This follows the fact that the supremacy of the constitution, in the domestic
legal hierarchy of sources of law, is both a result of, and a safeguard for, the supremacy of
the sovereign will in the national public order.
In the context of the judicial dialogue between the CJEU and national constitutional
courts constitutional identity functions as a limitation to the primacy of EU law and as a
safeguard for the supremacy of some of the elements of the constitutional design of EU
MS. However, constitutional identity establishes “counter limits” (Martinico 2007: 205-230
and Faraguna 2015: 27) to the primacy of EU law, not by applying hierarchical
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argumentation, but through ascription of value preference and via the insulation of key
elements of constitutional design from the derogative effect of EU legal standards. This is
due to the dynamic and asymmetric character of constitutional identity. In contrast to the
formal and rigid principles of the primacy of EU law, and the supremacy of domestic
constitutions of EU MS, constitutional identity does not allow for the application of
universally applicable hierarchical schemes for conferring precedence of legal standards or
for normative conflict resolution.
In that sense constitutional identity is a more appropriate concept for the linking and
delimiting of constitutional orders in a non-hierarchical, polycentric and networked way.
Thus, it seems that sovereignty can be used in the multilevel constitutionalist
model,
XVI
whereas constitutional identity is also suitable in the context of the constitutional
pluralism paradigm.
XVII
So far, constitutional identity has been presented as a safeguard for state sovereignty
and the supremacy of the national constitution. Both political sovereignty and
constitutional supremacy are key elements and safeguards for the state as an autonomous,
and self-contained, political and legal order. Thus, constitutional identity is a safeguard for
the statehood of EU MS.
At the same time constitutional identity is a safeguard for the primacy of EU law and
legal order over the constitutions and the constitutional orders of EU MS. This draws from
the fact that constitutional provisions, which are not part of constitutional identity, are
subjected to the primacy of EU law. Thus, paradoxically, to an extent constitutional
identity creates preconditions for the transfer of state sovereignty to the supranational
constitutional regime of the EU and for the primacy of EU law.
XVIII
Naturally, a clarification must be made, that the transfer of sovereignty and the primacy
of the EU law are not unconditional. That is why they are safeguarded by constitutional
identity only insofar as the conditions provided in advance by the domestic constitutional
legislator or constitutional court are fulfilled.
XIX
They are usually defined as substantial
limitations to the transfer of constitutional competences, or directly as elements of
constitutional identity.
In fact, it seems impossible to radically redefine the limit of permissible primacy of EU
law in favour of the absolute supremacy of domestic constitutions, and thus to deny the
relative primacy of EU law over the constitutional order of EU MS, without dismissing the
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constitutional nature of the EU. Hence the unlimited expansion of the scope of
constitutional identity can consequently lead to the destruction of the EU constitutional
system, and to its transformation into a supranational administrative regime.
Such a de-constitutionalization of EU law, and its restructuring into a purely
administrative system for the coordinated and collective management of certain tasks
established as a response to globalization, may additionally enhance the democratic deficit
of the EU. This is due to the fact that the transfer of wide ranging competences from the
MS to the EU must be paralleled by the construction of systems of checks and balances, of
power polycentrism, for democratic control and accountability and for the protection of
human rights. These are all attributes of a constitutional, and not just of an administrative
order and regime.
Another problem is that the transfer of sovereignty, and the permitting of a relative
primacy of EU law over the constitutions of EU MS, by virtue of judicial dialogue based
on national constitutional identity, are not unambiguous phenomena. The adjustment of
EU and domestic legal orders on the basis of constitutional identity, shaped through
judicial dialogue, is an asymmetric, evolutional and reflexive process. It produces a partial
deconstruction of sovereignty and hierarchy. Frequently it does not lead to the
establishment of new hierarchies, new Grundnorm
XX
(Pernice 2006: 22-29) or rules of
recognition,
XXI
but to a toleration of legal provisions and legal orders and to polycentric
dependencies. That is why it is difficult to say when the demarcation line between the
legitimate and illegitimate primacy of EU law over domestic constitutional order has been
definitely crossed.
Moreover, the loss of sovereignty of EU MS does not automatically produce a
symmetrical acquisition of sovereignty by the EU. Thus, EU integration seems to be a
“zero sum game” for both the EU and its member states in respect of sovereignty.
However, the problem might be much more complex; for it not only concerns the
redistribution of sovereignty in pluralist or multilevel constitutional settings, but moreover
demonstrates the structural change of the very concept of sovereignty, and its increasing
incapacity to explain emerging supranational constitutionalism and global governance. In
the context of mixed power schemes combining hierarchy with network, as ordering and
explanatory paradigms, constitutional identity may prove to be a much more adequate
concept for the preservation of the hard core of the constitutional foundations of national
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communities, than the rigid and holistic concept of sovereignty which necessarily
presupposes hierarchical perspectives and solutions.
4. Constitutional Identity as a Bond in a Composite Constitutional
Setting Serving Linking and Differentiating Functions between Legal
Orders
The linking, and differentiating, functions of constitutional identity are to some extent
paradoxically interrelated. Constitutional identity is divisive in two aspects. Firstly, it
exposes differences between the national constitutional systems of EU MS, and secondly, it
draws a demarcation line between domestic constitutional systems and supranational
constitutional regimes, especially between the EU’s constitutional system and the
constitutional systems of its MS. The differentiation is usually accomplished with a view to
both the fundamental constitutional axiology, and the key features of institutional design.
At the same time constitutional identity performs a linking function in two main
aspects. Firstly, constitutional identity can serve as a fundament for the development of a
common constitutional tradition of countries which have similar constitutional identities.
Such attempts for the establishment of common constitutional traditions can be made at a
regional level (Scandinavian, Central European, South European etc.) or at the European
level, depending on the political purpose, the degree of proximity of the constitutional
identities and constitutional traditions and the density of the required constitutional and
political integration. Thus, the objective coincidence of constitutional identities or the
deliberate development of common or similar constitutional identities are preconditions of,
and may serve as tools for, the establishment of supranational constitutional identity at a
regional or European level, and eventually for the development of a novel constitutional
civilization at the supranational level.
XXII
Hence, such a supranational constitutional
civilizational model could be the product of either a common historic and socio-political
experience, or of constitutional engineering.
XXIII
Secondly, constitutional identity indirectly performs a linking function for
constitutional systems through the delimitation of fundamental differences between them
which must be preserved. In other words, by defining the sphere of inviolable and
irrevocable national constitutional values, principles and institutions constitutional identity
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reciprocally, indirectly and tacitly leaves aside from its protective scope those value and
institutional aspects of national constitutional design which can be submitted to the
primacy of supranational legal standards, can be subject to transfer of sovereignty and can
be sacrificed in the course of linking with other national and supranational legal orders.
Outside the scope of constitutional identity one can find these institutions, values and
principles which can be amended through implementation, reception and transplantation
of foreign normative examples and can be modified in the light of ideas which have
migrated from other supranational or national legal orders.
Limits to the transfer of sovereignty and, vice versa, to the primacy of supranational
law can be formal, procedural or substantial. Formal and procedural limits however are
usually not directly related to self-identification as a process of value self-definition of the
members of the political community. They typically concern the formal framework and
basis of the process of linking different constitutional orders. Formal and procedural limits
may provide for important strategic or tactical impediments of the intersystem integration,
which however are not related to identity be it national, political, or constitutional.
The specifics of the linking and differentiating functions of constitutional identity result
in the fact that it is limitation to the transfer of sovereignty and to the primacy of EU law,
and eventually of other supranational standards, which possesses a substantive character,
with value and anthropological dimensions. Constitutional identity is both a limitation, and
a linkage, between value and institutional normative orders based on durable self-
identification of the political community with core issues and fundamental parameters of
the constitutional order. That is why constitutional identity is closely related to, and based
on, substantial counter-limits for the transfer of sovereignty and for the penetration of
supranational constitutional standards into the domestic legal order.
5. Constitutional Identity as a Core Concept of the Post-Westphalian
Constitutional Ideology
XXIV
of Supranational Constitutionalism in the
EU
Constitutional identity is a stimulus for the development of supportive normative
ideologies at the European and national levels, by constitutional theory and even by
constitutional courts during judicial dialogue with the CJEU. Constitutional identity is part
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of the new narrative for mutual recognition of value and institutional orders and for the
establishment of a polycentric and pluralist supranational constitutional order.
The ideological function of constitutional identity contributes to the development of
the political dimension of the EU and for its establishment as a constitutional union and
not just as an international organization or supranational technocratic administration.
Constitutional identity is an important part of post-Westphalian ideologies. It serves as an
element in the process of the development of matrixes and paradigms for the “ordering of
constitutional orders” (Tanchev 2014: 171) constructed in the form of multilevel
constitutionalism, or constitutional pluralism, and going beyond traditional schemes for
linking domestic and international legal systems via monist or dualist systems.
Constitutional identity has the potential to become part of post-Westphalian
constitutional ideology. Constitutional identity is a principle of both national and post-
national constitutionalism. On the one hand, it is a safeguard for the sovereignty of the
nation state, and is supposed to be the zenith of national political choice in constitutional
design. On the other hand, the new constitutional discourse on constitutional identity,
which is predominantly led in the framework of EU constitutionalism, is an attempt at
putting constitutional identity into practice, as one of the new principles of supranational
constitutionalism with its universalist and post-nationalistic aspirations.
Hence constitutional identity simultaneously defines nation-specific and universally
valid elements of constitutional design. Constitutional identity reflexively, and indirectly,
determines the scope of universally valid elements of constitutional design by delimiting
the inviolable constitutional core of national constitutional order. In the latter case, it
actually paves the way for the establishment of post-national and supranational
constitutionalism in general, and thus for the constitutionalization of the EU’s legal order
in particular.
It is possible that constitutional identity could be recognized as a constitutional
principle of the national constitutional systems of EU MS. It could be proclaimed as a
safeguard, a supplement or even an alternative to the constitutional principle of
sovereignty, depending on its outlook, design and the constitutional teleology which is
going to be developed on its basis. Constitutional identity may also serve as a contextual
and substantial concretization of sovereignty perceived as a non-holistic concept,
composed of sector sovereignties. Thus, constitutional identity may function as a precursor
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to the change of sovereignty, from a holistic and indivisible Westphalian concept, into a
fragmented, composite and relativized post-Westphalian paradigm. This is another
manifestation of the ideological function performed by constitutional identity.
Respect for national constitutional identity is already a principle of EU constitutional
law. It has been enshrined in article 4, paragraph 2 of the Treaty on the European Union
and has become an underlying concept in important case law of the CJEU (e.g. the cases
C-62/02 “Omega”, C-208/09 Sayn-Wittgenstein etc.). This principle is systemically
intertwined with the principles of conferral, relative primacy of EU law, and the respect for
the national sovereignty of MS. Thus, constitutional identity gradually became part of the
constitutional axiology of European constitutionalism. In must be stressed that it is an
element of constitutional axiology and of constitutional ideology, not only at the
supranational EU level, but also at the level of EU MS.
Globalization and European integration enhance the constitutional dimension of
subnational constitutional orders (Sassen 2007) in federations and unitary states with
functional federalism such as Spain, Italy and UK. In that context, the respect of national
constitutional identity by both the supranational constitutional regimes such as the EU, and
subnational units, increases in importance. The opposite is also true the emergence and
development of constitutional identities in subnational political communities, e.g. the
Basques and Catalans in Spain, or the Scottish in the UK, imposes the need for their due
respect.
In that vertical dialogue between multiple constitutional identities which proliferate at
subnational, national and supranational levels, the concept of constitutional identity
acquires not only an ordering, but also an ideological importance. Constitutional identity is
an attempt at providing a partial remedy to the rigidity of sovereignty as a traditional
ordering; it is also an analytical paradigm, used for the explanation of multilevel power
relations, applied in the simpler hierarchical world of Modernity, thus being part of the
constitutional ideology of the nation state.
Constitutional identity gradually becomes part of post-Westphalian constitutional
ideology due to its flexibility, and capability at giving relatively adequate answers to the
power reality of supranational and global constitutionalism. Constitutional identity
functions in the context of, and in conjunction with, classical normative ideologies such as
the legitimate monopoly of the state over power, authority and coercion (Weber 1972: 821
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ff.) and the state and law as ordering instruments in polycentric and pluralistic societies.
However, constitutional ideology is also part of a realm of post-Westphalian normative
ideologies such as open statehood (Hobe 1996: 127154) and constitutional pluralism.
Hence, constitutional identity is a central and important component of the
constitutional ideology of emerging global and post-Westphalian constitutionalism. It has
the capacity to serve as a normative ideology because it is a combination of rational and
emotional aspects of constitutionalism.
XXV
Constitutional identity possesses the
characteristics of rational constitutionalism, with its role as a safeguard of constitutional
values, principles and institutions. Moreover, it serves as a legally determinable borderline
between national and supranational (and eventually also subnational) constitutionalism and
as a tool for linking and differentiating as well as for assigning primacy of multiple
constitutional orders which cannot be ordered only on a hierarchical basis.
The belief in the existence of a collective constitutional Self of national political
communities, de-personalized values, aims and will and of transgenerational consensus on
the basic elements of constitutional design is an example of the mixed nature of
constitutional identity, which is at the same time rational and emotional. The belief that
members of a constitutionally organized political community are capable of negotiating and
agreeing on value and institutional constitutional consensus, whose core is shaped as
constitutional identity, is also based on a mixture of rational and emotional
constitutionalism. The same is true for the belief in the capacity of constitutional identity to
become a functioning and effective instrument, for the linking and dividing of
constitutional and not just of international or administrative orders, and to serve as a
safeguard for the constitutional, and not just the political consensus of communities. It
underlines the emotional and ideological importance of the concepts under analysis; for the
concepts of the constitutionalization of the bond between national and supranational legal
orders, and the conception of the EU as a constitutional and not as just an administrative
or international system, are daring ones. They are preconditioned on the existence of
constitutional ideologies and constitutional paradigms which have both rational and
emotional aspects.
Thus, constitutional identity is a rationally constructed concept which also possesses an
emotional intensity. It is predetermined by beliefs, yet itself produces beliefs which are not
always the immediate result of its rational nature. That is why constitutional identity has the
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characteristics of a constitutional ideology. It possesses a logical background, rational core
and structure, and at the same time presupposes the axiomatic acceptance of some of its
constructive premises which should secure a sufficient level of confidence in its capability
to give adequate responses to constitutional issues.
Constitutional identity is an attempt at remedying the dysfunctionality of some classical
normative ideologies, and especially the difficulties of using sovereignty as a universal
analytical and ordering paradigm in the context of supranational and global
constitutionalism. Moreover, constitutional identity itself has the features of a normative
ideology. That is why it must not only be rationally proven and practically effective, but
also has to be emotionally persuasive, in order to become a durable element of the post-
Westphalian constitutional ideology of supranational constitutionalism in general, and EU
constitutional law in particular. Hence the ideological function of constitutional identity is
based on its persuasive and convincing force.
Last, but not least, it has to be mentioned that constitutional identity offers the
opportunity of self-reflection to a political community, on the parameters of its
constitutional tradition, constitutional culture and the core of its transgenerational
constitutional project. In that regard constitutional identity also accomplishes a function of
constitutional self-understanding.
The process of determining the collective constitutional Self is usually organized along
formalized and judicial lines. It is based on the case law of constitutional and supreme
courts as authoritative speakers of a political community. However, such an approach lacks
sufficient democratic legitimacy, misses important socio-legal and anthropological
arguments, and produces elitist results which might not have sufficient persuasive force for
the people. The definition of constitutional identity by the courts, and not by the people
themselves, or by their elected representatives, collides with key normative ideologies
deeply enshrined in the mainstream constitutional theory of the XIX and XX centuries.
These relate to constituent power, democratic representation and parliamentarism which
underlies modern representative democracies. The judicial shaping of constitutional
identity casts the shadow of “gouvernement des juges” (a peril which was classically
defined by Charles De Montesquieu and Edouard Lambert). It questions both the
legitimacy and the capability of judges to define, on a case-by-case basis, the constitutional
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consensus of a political community predetermined by the socio-legal context in which it
exists.
In contrast, the establishment of constitutional identity via wide public deliberation
seems rather utopian and is exposed to populist biases. The determination of constitutional
identity as a form of collective self-reflection, through parliamentary debate, is also not
convincing in the context of the current crisis of representative party democracy
experienced by some European societies as well as by the EU itself.
This dilemma is a specific manifestation of the difficulties faced by the classic theory of
democracy in explaining emerging post-Westphalian constitutionalism. It is an example of
the increasing role of the courts in the context of supranational and post-Westphalian
constitutionalism.
6. Instead of a Conclusion: the Role of Constitutional Identity for
Preserving the Constitutional Character of the EU
Constitutional identity is one of the relatively new doctrines which conceptualizes, and
tries to influence, the development of the EU not only as an internal market, free trade and
free movement zone, or supranational regulatory regime, but also as the most developed
supranational constitutional order. The functionalist analysis of constitutional identity
contributes to the development of the constitutional ideology of supranational
constitutionalism in general and of EU constitutionalism in particular.
Constitutional identity serves as a bridge between domestic constitutionalism, formed
during Westphalian modernity, and post-Westphalian EU constitutionalism. It is an
attempt at a reconciliation of multiple constitutional orders, which cannot be adjusted in
the traditional ordering paradigms of Westphalian constitutional geometry hierarchy and
the pyramid. This is due not only to the lack of a clear solution to the distribution of
sovereignty in the EU, but also to the structural changes of sovereignty concepts
themselves in supranational, post-national and global settings.
Constitutional identity has emerged as an EU legal concept during the phase of
European integration which followed the transformation of the European Communities
into the European Union, and has been devoted to its constitutionalization. It set down its
firm roots in article 4, paragraph 2 of the Lisbon Treaty, and has been further developed by
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the judicial dialogue of the CJEU and some of the most active constitutional courts of EU
MS. It is a well-known fact, widely discussed in the theory, that provisions for the
protection of national identity have had to be paralleled by the proclamation of the primacy
of EU law in the Treaty on the European Union. However, the Lisbon Treaty did not dare
reproduce this “two-pillar model”, composed of primacy of EU law tempered and
counterbalanced in respect of national identity which was provided by the misfortunate
Treaty on the Constitution of Europe. Despite this, the provision for the protection of
national identity from derogation or infringement by primary EU law establishes a reason
for jurisprudential definition of the borderline between domestic and supranational
constitutional orders. This is due to the fact that the “judicialisation” of national identity,
and its gradual transformation into constitutional identity in the course of judicial dialogue
between the CJEU and national constitutional courts, clearly highlights the constitutional
dimension of this relatively novel fundamental concept of the European composite and
pluralistic legal order. The intensive theoretical debate, and extensive case law on
constitutional identity over the last years,
XXVI
demonstrate the potential of constitutional
identity to serve not only as a central paradigm in post-Westphalian constitutionalism but
also to enhance the constitutional dimension of the EU.
Most of the literature on constitutional identity in recent years has been focused on the
case law of the CJEU and MS’ constitutional courts, and on the definition of constitutional
identity on the basis of criteria enshrined in positive constitutional law. Hence a legal realist
analysis championed the debate, followed by a legal positivist discourse on constitutional
identity. In contrast, the interest regarding the functions which constitutional identity
performs in the context of a supranational and pluralist constitutional setting has been
rather pale.
This article is an attempt to prove that a functional analysis of constitutional identity is
an important part of the efforts for shaping a post-Westphalian theory of supranational
constitutionalism, part of which is also the concept of constitutional identity. Thus, a
functionalist approach to constitutional identity also contributes to a further constitutional
conceptualization of the EU.
Chief Assistant Professor in Constitutional Law, University of Sofia “St. Kliment Ohridski”, Faculty of Law.
I
Here I make use of some parts of the wording of the title of Ronald Dworkin’s book “Taking Rights
Seriously”. Cambridge, Massachusetts: Harvard University Press, 2001.
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II
In this article I am following the approach according to which the concept of national identity provided in
article 4, paragraph 2 of the Treaty on European Union should be read as “national constitutional identity”.
For the relevant discussion see e.g. Millet, F.-X. L’Union Europeenne et l’identitee constitutionnelle des etats
membres. Paris, L.G.D.J, 2013, Guastaferro, B. Beyond the Exceptionalism of Constitutional Conflicts: the
Ordinary Functions of the Identity Clause. Jean Monnet Working Paper 1, 2012, Konstadinidies, T.
Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of
National Constitutional Settlement. In: Cambridge Yearbook of European Legal Studies, Vol. 13, Marti, J.
L. Two different ideas of constitutional identity: identity of the constitution v. identity of the people. In:
Saiz Arnaiz, A., C. Alcoberro Llivina (eds.). National Constitutional Identity and European Integration.
Mortsel: Intersentia, 2013 and Toniatti, R. Sovereignty lost, constitutional identity regained. In: Saiz Arnaiz,
A., C. Alcoberro Llivina (eds.). National Constitutional Identity and European Integration. Mortsel:
Intersentia, 2013.
III
The idea that the modern constitutions codify historical, socio-legal and civilization patterns and
experience and are producing common constitutional language enshrined in key normative concepts has been
recently proposed by Andras Jakab in his book “European Constitutional Language”. Cambridge: Cambridge
University Press, 2016.
IV
According to M. Rosenfeld Europe has to establish its own constitutional identity which has to be based
on the existing aspects of collective identity but must also be oriented towards the future and must adapt and
transform its own components (Rosenfeld 2005:317).
V
Regarding the rational, traditional and charismatic legitimacy see Weber (1968:151).
VI
For the concept of autopoiesis see Teubner (1993).
VII
For example some authors suggest that the German constitutional identity coincides with the “eternity
clause” of the German Constitution. See von Bogdandy and Schill (2011: 15-17). The French and the Italian
constitutional identities are also frequently related to the unamendable “republican clause” provided by the
1958 French and the 1946 Italian Constitutions. However both the constitutional jurisdictions of these
countries and the French and the Italian doctrine believe that the French and the Italian constitutional
identities are not limited to the “republican clause” and that this clause should be interpreted extensively so as
to include elements upgrading the mere republican form of government.
VIII
M. Rosenfeld stipulates that the constitutional identity is in part conscious, in part unconscious. Thus he
also points at the double nature of the constitutional identity as both rational and emotional phenomenon
(Rosenfeld 2005:318)
IX
The “no demos” problem has been central part of the discussions on the establishment and development
of EU constitutionalism. See Innerarity (2014: 1-36).
X
For the fragmented European public sphere see Pernice (2006: 16-18).
XI
B. Guastaferro believes that the constitutional identity is safeguard for the cultural diversity of the EU
member states, for their regulatory autonomy and for their discretion for allowing the primacy of the EU law
(Guastaferro 2012:1).
XII
This is formula elaborated by Abraham Lincoln in his Gettysburg Address.
XIII
In that case constitutional identity will be serving the function of prevention of negative historical cycles
and remedying problems inherited by previous constitutional regimes, which however are not a product of
fundamental constitutional self-identification of the community.
XIV
For the opposite opinion equalizing the entrenched clauses with the constitutional identity see von
Bogdandy and Schill (2011: 15-16).
XV
Barbara Guastaferro questions the wide spread opinion that the constitutional identity serves for conflict
resolution between the EU law and the national constitutional law only in exceptional hypotheses. According
to her the constitutional identity matters not only in exceptional cases but also in all cases of application of
the EU law which invoke its adjustment to the national constitutional law. See Guastaferro (2012:1). For the
contrary opinion see von Bogdandy and Schill (2011: 16-17).
XVI
More about the multilevel constitutionalism see Walker 2009.
XVII
More about the constitutional pluralism see Krisch 2011.
XVIII
According to J.-D. Mouton the protection of the national identity has double protective function:
against the EU when it can infringe this identity with its activity and with the accomplishment of its
competences but also when the EU controls the member states regarding the way they respect the
democratic values. See Mouton (2013: 227).
XIX
Typical examples are the case law of the German Federal constitutional Court and the Italian “counter
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limits” doctrine.
XX
Regarding the concept of Grundnorm see Kelsen, 2009.
XXI
Regarding the rule of recognition see Hart (1997: 100).
XXII
According to A. von Bogdandy and St. Schill the national identity of the EU member states must be
deliberately constructed as identity of states which are members of the EU (Bogdandy, A., St. Schill 2011: 10).
XXIII
C. Closa is skeptical regarding the possibility for establishment of common European identity due to the
impossibility of the EU to achieve the empirical criteria for commonality and specificity (Closa 2005: 416).
XXIV
Under “constitutional ideology” I understand the system of beliefs that shape and underline the durable
perceptions of the socio-legal community regarding important aspects of the value and institutional
constitutional design. In that sense the constitutional ideology is composed of different key normative ideas
and is part of the “ideal constitution”. For the concept of “ideal constitution see Blondel (1995: 217-218) and
Tanchev (2003: 112)
XXV
See note №. 5.
XXVI
Examples of such extensive case law on national constitutional identity are both the jurisprudence of
CJEU on the relative primacy of the EU law over the domestic constitutions (e.g. cases C-62/02 “Omega”,
C-208/09 Sayn-Wittgenstein etc.) and the case law of the German, French, Italian, Spanish and Polish
constitutional courts.
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This chapter has two purposes: first, to provide an overview of the effects of populism on the EU legal system, and to make the argument that the EU legal responses to populism may contribute to crystallising EU constitutional identity. Looking back at the history of the EU, we find a number of events, which are linked directly or indirectly to a crystallisation of EU values. One might call them “constituting moments” in defining an EU identity and maybe even an EU constitutional identity. The chapter argues that the EU’s responses to the rule of law crisis form part of this evolution. The second purpose of this chapter is to turn the picture around and ask which effect the EU responses have had on populism, using Poland as a case study.
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The purpose of this article is to discuss whether equality and non-discrimination form part of the EU constitutional identity. After noting that the point of departure of the article is the theory of constitutionalism beyond the State, as well as the assumption that the EU and EU law are constitutional in nature, the author proceeds with the debate on the antecedents of the EU constitutional identity. After inquiring whether a Member State constitutional identity is the same as national identity, the author argues that, independently of the response to this question, both concepts perform the function of a brake on the absolute primacy of EU law over domestic law, as well as on the transfer of powers, which calls into question the very statehood of the Member State. This article argues that, the EU constitutional identity, in spite of its indeterminacy, vagueness and complexity, comprises common origins, common values, a common destiny and common features that differentiate the EU from other entities. Although the common origins mainly emerged from the negation of Nazism and Soviet communism, and its common destiny is rather uncertain, there is no doubt that the EU has an axiological basis and that it has certain characteristics that differentiate it from the rest of the world. One of these features concerns the respect for equality and non-discrimination as well as the respect and promotion of fundamental rights. The article concludes that equality and non-discrimination are an integral part of the EU’s constitutional identity to the precise extent they are simultaneously values and objectives of the EU.
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This book traces a fundamental transformation in law-the turn towards 'postnational law'-which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals' autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going 'beyond constitutionalism' towards a pluralist order may be the better option.
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The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity.