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«Introduction Sovereignty, supremacy, direct effect, Kompetenz-Kompetenz, have definitely been the buzzwords in European constitutional law and they ...»

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Battleground or Meeting point?: The Respect for National Identities

in the European Union – Article 4(2) The Treaty on European Union

Denis Preshova

Introduction

Sovereignty, supremacy, direct effect, Kompetenz-Kompetenz, have definitely been

the buzzwords in European constitutional law and they have represented the embodiment of

the relationship between European Union law and national constitutional law1. Yet, the

latest developments in the European integration bring to surface an additional phrase that is perhaps going to serve as a turning point. Namely, the clause on the respect for national identities of the Member States in the Consolidated Treaty on European Union (CTEU), Article 4(2), has drawn significant attention, particularly after the interpretations and reasoning delivered over this provision by several constitutional courts2, both in the context of the Constitutional treaty as well as the Lisbon treaty. That this interest is not just a pure coincidence can be observed by the latest case-law of some constitutional courts as well as the Court of Justice of the European Union (ECJ)3.

Be this as it may, and regardless of the expectations raised and hopes given rise to by the Constitutional Treaty, and in the aftermath the Lisbon treaty, the contentious debate on the relationship, and along with it conflicts, between European Union law and national constitutional law will certainly continue to play a role in future. Every expectation that this debate in the European constitutional realm is reaching its final days is unfortunately misled by wishful thinking. Nevertheless, a ‘harmless’ concretization of a single provision, often neglected in the past, added truly a ‘new flavour’. Through the clause on national identity the national constitutions have received firmer status and recognition in EU law4. Some authors state that it is the obvious evidence for the openness of EU law towards national constitutions5.

The ‘new flavour’ is frequently perceived through the recently set dilemmas. Is national identity actually the same as constitutional identity in EU law? Who should define For more on this relationship see the works of Ingolf Pernice, Neil Walker, Miguel Maduro, Paul Kirchof, Armin von Bogdandy, Mattias Kumm and Franz Mayer.

France, Constitutional Council, Decision 2004-505 DC Treaty Establishing a Constitution for Europe, Spain, Constitutional Tribunal, Declaration on the Establishing a Constitution for Europe, DTC 001/2004, and Germany, Federal Constitutional Court, Lisbon decision, 2 BvE 2/08 from 30.June.2009.

See section B of this paper.

De Witte, in: The Lisbon Treaty, p. 32.

von Bogdandy, ZaöRV 4 (2010), p. 701, (715).

national identity? What is this provision’s impact on primacy of EU law and the exercise of conferred powers by EU institutions? These and several other questions are opened for discussion and this paper is trying to tackle them. Basically it involves the critical analysis of the statement that “interpretations of Article 4(2) TEU will become [are becoming] the battleground or the meeting point, where the limits of the authority of EU law lie”6. It will be argued that the national identity clause provides an instrument for establishing a meeting point where the conflicts arising out of this relationship could be mitigated, but not solved in each case, by taking into consideration both EU and national constitutional aspects of the respect for national identity.

Following this line of reasoning this paper will discuss the background, textual and contextual dimension of Article 4(2) CTEU that will serve as a starting point for the analysis, but in any case it represents a supplementary argument proving the thesis. It will show how even the textual and contextual interpretation of this provision requires a shift from strictly conceived EU law primacy (A). Then it turns to the interpretations of national identity of national constitutional courts and the ECJ trying to show how the constitutional courts have already established the link between the national identity and constitutional identity, especially in the EU context, on the one hand, and how the invocation of Article 4(2), or the lack of it, by the ECJ and its practice in the realm of fundamental freedoms and rights creates certain dilemmas over the issue of national identity on the other (B). And lastly it considers how national identity clause impacts the principle of primacy of EU law.

It states that basically the rigid understanding of absolute primacy of EU law is incompatible with the new developments seen through the prism of Article 4(2) that provides an additional argument to the theories of constitutional pluralism for the claim of constitutional heterarchy in Europe (C).

A. Article 4(2) CTEU – ‘Harmless’ clarification with potential for big impact?

I. The respect for national identities ex nihilo?

The national identity clause under Article 4(2) CTEU did not come out of nothing, ex nihilo. The duty for European institutions to respect the national identities of Member States Chalmers/Davies/Monti, EU Law, p. 202.

was introduced for the first time in the Maastricht Treaty, with Article F(1)7. Reasons behind the enactment of this provision are often seen in the many substantial innovations that this Treaty brought to the then European Communities. Specifically, these innovations are the creation of the European Union and treaty provisions touching upon issues traditionally part of national constitutions and sovereignty such as the Monetary Union, European citizenship and the corpus of rights linked to it and cooperation on foreign policy and justice and home affairs8. This attempt to balance between the federalist tendencies at European level and national sovereignty9, or better said external limit to European integration10, nevertheless, did not really occur by means of this vaguely formulated provision. As a matter of fact, neither Article F(1) nor later Article 6(3), after the renumbering occurred with adoption of the Treaty of Amsterdam, has been invoked by the ECJ11, and only on one occasion by the Federal Constitutional Court of Germany12. Yet, the need to counterweight the federalist tendencies did not fade away among the Member States.





During the deliberations and drafting of the Treaty Establishing a Constitution for Europe (CT) within the Constitutional Convention the question of concretization of the national identity clause was put on the table13. It was affirmed that this provision should be made more transparent, clarifying the notion of national identity, although there was a disagreement on how it should be done. The so-called “Christophersen Clause”, which was an alternative to the firmly rejected proposal of listing all competences of Member States or creating a charter of Member States’ rights14, served as the base for the new Article I-5 of the CT. It regulated the relations between the Union and the Member States and in its first paragraph inter alia stipulated the duty to respect the national identities of Member States.

At the end compromise was reached by clarifying national identities in the provision through the fundamental structures inherent in their political and constitutional structures, including regional and local self-government, hence leaving out some other proposed “The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy”.Treaty on the European Union (Maastricht), Official Journal C191, 29.07.2011.

Available at http://eur-lex.europa.eu/en/treaties/dat/11992M/htm/11992M.html#0001000001. (Last visited

5.June.2011) De Witte, in: The Lisbon Treaty, p. 33.

Reestman, Eu Const, 5 (2009), p. 374 (376) Oppermann, Europarecht, 2. Aufl, §11, Rdn. 885 and Oppermann/Classen/Nettesheim, Europarecht, 4. Aufl §5 Rn. 8, Cf. von Bogdandy/Schill, in: Grabitz/Hilf/Ruffert, 2011, Art. 4 EUV, Rdn.38.

Besselink, Utrecht Law Review, (2010), 36, (41).

Federal Constitutional Court of Germany, Maastricht Treaty 1992 Constitutionality Case, 2 BvR 2134 and 2159/92, Oppenheimer, The Relationship, 1994, p. 527 (556, 574).

For other aspects of the process see Puttler, in: Calliess/Ruffert, EUV/AEUV, 4. Aufl. 2011, Art. 4 EUV, Rdn.

5,6,7.

CONV 251/02, p.3.

elements15 such as language, national citizenship, and church-state relations, which would be regulated by other provisions in the reformed TEU and TFEU after Lisbon16.

The same provision was taken over by the Lisbon Treaty and an additional sentence emphasising the national security as an essential state function was added to it. Through the reform of the TEU it was inserted as second paragraph of Article 4 that also regulates the relations of the Union and Member States, even though, due to the approach taken in the EU treaties, it does not carry this title as in the CT. Yet some authors use a more EU friendly title for this article in their contributions like “principles of fundamental federal structure” ( “Prinzipien der föderativen Grundstruktur”)17, while others treat it as “a strong reaffirmation of the non-federal nature of the European Union”18.

II. Textual and contextual analysis of national identity clause (Article 4(2))

Just as many other provisions in the treaties, Article 4 is a multifaceted article that regulates the relations between the Union and the Member States. Consequently, besides the reaffirmation of the principle of conferral of powers or limited powers of the EU in the first paragraph19 and the placing of loyalty or fidelity principle in regards to accomplishment and achievement of Treaty tasks, obligations and objectives in the third, Article 4 reserves the second paragraph for the three duties prescribed for the Union institutions. The latter are often seen as central in the interpretation of Article 4, particularly when the relationship between Union law and national constitutions is concerned. The three basic duties set forth for the Union institutions by Article 4(2) are the respect for equality of Member States before the Treaties20, the respect for national identities and the respect for the essential state functions21.

For more on the debate over these proposals see CONV 357/02 pp. 10-12 and CONV 400/02, p. 13.

Article 3(3) CTEU on language, Article 20. TFEU on national citizenship. See on this Reestman, Eu Const, 5 (2009), p. 374 (381).

von Bogdandy/Schill, in: Grabitz/Hilf/Ruffert, 2011, Art. 4 EUV.

De Witte, supra note 3, p. 35.

Article 4(1) refers to Article 5, where conferral of power principle is basically regulated, and restates the last sentence of paragraph two. See more in Piris, The Lisbon Treaty, p. 84. See also CONV 375/02 in the context of the CT referring to the objective of Article I-5: “The article would therefore not constitute a definition of Member State competence, thereby wrongly conveying the message that it is the Union that grants competence to the Member States, or that Union action may never impact on these fields”.

Amato/Ziller, The European Constitution, p. 108:„This reference did not add anything new to the Union’s institutional arrangements, though it did underscore the need to avoid an asymmetrical federalism. The definitive version of article I-5 loses in elegance that which it gains in precision [...]”. Cf. Federal Constitutional Court of Germany, Lisbon decision, 2 BvE 2/08 from 30.June.2009, para. 292, and also to Piris, The Lisbon Treaty, pp.

85-86.

von Bogdandy, ZaöRV 4 (2010), p. 701, (709).

Focusing on the national identity clause, without underestimating the importance of the other principles set forth in this article, one has to see how the wording of this provision should be interpreted in light of the textual and contextual analysis. It is only after these reflections on how this provision could and should be interpreted that one can turn to the recent case-law of both the constitutional courts and the ECJ.

1. The meaning and scope of national identity clause – textual analysis

The need for concretization of the national identity clause has proven to be necessary precisely because of the vagueness and ambiguity of national identity as a notion in view of its understanding under Article F(1) TM and later Article 6(3) TA22. Just as the components of this notion, namely ‘nation’ and ‘identity’, are slipping away on every attempt to delimit them from other notions and provide a precise definition for these terms23, so is the case with the amorphous notion of national identity which practically made this provision obsolete. According to Reestman “[under the] most common reading of national identity it is very hard, if not impossible to define with any measure of objectivity what the Union’s duty to respect the national identity of its Member States entails”24. Somehow it “fans out in all directions” and the least towards any relation with constitutional structures25. This common reading he refers to is more often associated with social, cultural, political and even psychological aspects of national identity than with the legal comprehension of this notion26. Due to its broadness and generality it has served more as a political declaration than as legal provision producing legal effect.

An additional problem with the wording of Article 6(3) was also the use of the plural form of national identities in the English version27 which might be paired more easily with the existence of multinational identities in countries rich in ethnic, religious or linguistic diversity. Thus, under such a construction, that is possible without a further clarification of Out a quote for the conventional documents More on the problem of defining identity and nation by providing explanations to the synchronic and dysinchronic aspect of identity as well as the objective, both pre-state and state, and subjective elements of ‘nation’ see in Reestman, supra note 8, p. 374 (374-379) and von Bogdandy, ZaöRV 4 (2010), p. 701, (711-713).

Reestman, supra note 8, p. 374 (380).



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