National Constitutional Identity in the European Union and the Principle of Primacy

Abstract

Even though the idea of respect for National and Constitutional Identity has been present for a long time, the meaning of those terms and their consequences have not been analysed and understood accurately, remaining a current issue. This is not to endorse the notion that the concept has no meaning as we can analyse its development within European Union Law. In general, we can affirm that the idea of the respect for National Identity has been strengthened by the Lisbon Treaty and that The European Court of Justice (ECJ) is competent to interpret the concept.Even though the main focus will be on the interpretation of the Article 4(2) TEU and its express mention to the respect for National Identity, we find the need to address the topic from a juridical standpoint, given that, as the previous paragraph points out, the conceptual development of national identity has the ECJ as a main character, as its case-law sets the limits and features of the concepts.Nevertheless, we should note that not many cases where Article 4(2) TEU is used have been studied by the ECJ. Furthermore, those that do study the matter, address the issue in an unclear way, both when defining what should be understood as National Identity and when addressing its relationship with the Primacy Principle. That is why the role of the ECJ as well as the Member States' Constitutional Courts help us understand the term. National Constitutional Courts are empowered to invoke the clause of National Identity to resist the concept of absolute primacy of the European Union laws. It is therefore necessary to investigate which is the meaning of the concept, which can be achieved by examining -in a non-exhaustive way- the case law of the Constitutional Courts, and by the analysis and comparison between the constitutional provisions of the member states.It is also worth emphasizing that the ECJ allows some exceptions to the European Law obligations on the grounds of Article 4(2), and the ECJ also controls the validity of secondary legislation and reviews the legality of acts of the institutions, which are obliged to respect National and Constitutional Identity.