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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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Ibid.p. 379 and p. 376 Beutler in: von der Groeben/Schwarze, EUV/EGV, Rdn. 201 states: „ Nationale Identität bedeutet aber auch mehr als Verfassungsidentität. Über diese Mehr entscheidet der Mitgliedstaat selbst. Als Beispiel werden in diesen Zusammenhang Sport, Kultur und Bildung aber auch die interne Staatsorganisation, die Familienstrukturen und die sozialen Sicherungssysteme…“. von Bogdandy, supra note 4, (712) citing Flaggenbeschimpfungs-Beschluss “Nationale Identität meint dann gleichgerichtete psychische Vorgänge der Staatsbürger”.

The German version operates with “nationale Identit t” as a singular form.

the notion of national identity, cultural28, historical, political and other identities can be subsumed29 within this provision. This would have opened the door to a situation where every national particularity and characteristic could have served as a reason for limitation of the exercise of Union powers30.

Therefore, the new Article 4(2) CTEU states that national identities of Member States are inherent in their fundamental constitutional and political structures inclusive of regional and local self-government31. In this sense Article 4(2) CTEU has its basis in Article 6(3) TA and it represents clarification and concretization and not the alteration of this provision. The emphasis on fundamental constitutional structures basically ties national identity firmly to constitutional identity and excludes cultural and other types of identity from the scope of this provision32. The English version makes the case for this conclusion stronger by using “inherent” instead of “finds its expression through” (“zum Ausdruck kommt”) in establishing the link between national identity and constitutional structures33. It is only the fundamental values, the core of the constitutional identity that is to be respected and by this a pre-constitutional context and argument is avoided something that might be implied by the latter. If the opposite was the case, every single issue could be connected to the national identity. Such an understanding is also supported by the existence of a separate provision, Article 3(3) CTEU, which regulates the respect for cultural and linguistic diversity34 and creates a duty for the Union itself unlike Article 149(1) TEC where such a duty of respect did not exist35.

Additionally, it is very important to determine the level of duty that is placed on EU institutions. Therefore the notion of ‘respect’ should be dealt with. In this sense it is rather certain that this respect represents a legal obligation for the Union36. According to von Bogdandy the duty to respect national identity in Article 4(2) does not in any way imply an See Strumpf, in: Schwarze, EU-Kommentar, Rdn.39. In the context of working languages of the EU Institutions see Oppermann/Classen/Nettesheim, Europarecht, 4. Aufl., § 6, Rdn. 18.

Puttler, in: Calliess/Ruffert, EUV Art. 6, Rdn. 213 and Oppermann, Europarecht, 2. Aufl, §11, Rdn. 885.

Besselink, Utrecht Law Review, (2010), 36, (42-43).

„The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government....“ CTEU available at http://register.consilium.europa.eu/pdf/en/08/st06/st06655.en08.pdf Puttler in: Calliess/Ruffert, Art. 4 EUV, Rdn. 14, von Bogdandy/Schill, in: Grabitz/Hilf/Ruffert, 2011, Art. 4 EUV, Rdn.14, and Besselink, supra note 10, (44) cf. Geiger, in: Geiger/Khan/Kotzur, 5 Aufl. 2010, Art. 4 EUV, Rdn.3.

von Bogdandy/Schill, in: Grabitz/Hilf/Ruffert, 2011, Art. 4 EUV, Rdn.14.

For a secondary role of cultural identity under Article 4(2) CTEU see Besselink, supra note 10, (44).

“…respecting the responsibility of the Member States for the content of teaching and the organization of education systems and their cultural and linguistic diversity” Art. 149 TEC. See also Opinon AG Maduro of 16 December 2004, Case C-160/03, Kingdom of Spain v. Eurojust, para. 24. He has referred to both Article 6 TEU and 149 TEC thus showing that both of these articles regulate the linguistic identity i.e. diversity.

Ibid. rdn 33 and Puttler rdn 22 absolute protection or preservation of national identity37 and accordingly does not imply primacy of constitutional provisions regulating specific values over EU law as a matter of principle38. Nevertheless, he states that it certainly represents a legal obligation for the Union. In this sense it envisages the need for balance under circumstances of conflict between the fundamental principles and values of the two legal orders and cooperation between the institutions of these orders39. The way this balance is to be reached and cooperation conducted is, on the other hand, a matter of contention. Whether this is to be done through judicial means where either the ECJ or national constitutional courts will have the last word, each in its own realm, or whether it should be left to the political institutions, mainly on national level, to decide upon is opened for discussion. In contrast, Puttler argues the contrary, stating that in a case of conflict between the national identity of Member States and the exercise of Union competences, the latter should yield. She thus argues that there is no room for any balancing and that national identity clause could be invoked only in extreme situations40. As this relationship is the one of the core issues raised over the relationship between EU law and national law, it will be dealt with in more details in the last part of this paper.





At the end of this section two other points should be addressed when the wording of Article 4(2) is concerned. The first point worth making is the referral to ‘fundamental constitutional structures’ instead of constitutional values in the national identity clause. Here a narrow reading41 of this provision might be possible due to the common understanding of the term structures which is often related to the state organisation and institutional design of the respective state whilst not including constitutional and political values42. Even though it is true that these notions are not synonyms and that it might lead to a debate over the scope of this provision, however, there is almost a tacit consensus among scholars that constitutional values do come within the meaning of the national identity clause43. The same understanding is present in the decisions of both the national constitutional courts and the ECJ.

Cf. Beutler in: von der Groeben/Schwarze, EUV/EGV, Rdn.. 201 „Sie [Die Achtung] nicht nur Respektierung, sondern vor allem auch Förderung der jeweiligen nationalen Identität,...“.

von Bogdandy, supra note 34, Rdn. 33.

von Bogdandy, supra note 4, p. 726 and p. 731.

Puttler, supra note 12, Rdn. 22.

cf. Opinion A.G. Kokott of 8.May.2008, Joined Cases C-428/06 to C-434/06, Unión General de Trabajadores de La Rioja (UGT-Rioja) v. Juntas Generales del Territorio Histórico de Vizcaya and Others, para. 54.

De Witte, supra note 3, p. 34.

von Bogdandy/Schill, supra note 34, Rdn. 28 and Puttler Rdn. 16 Further, when Article 4(2) is concerned, most frequently emphasis is put on the fundamental constitutional structures, assuming a national dimension, while somehow forgetting about the second part of the clarification of national identity. Namely the regional and local self-government within the Member States, which were not entailed under Article 6(3)TA44, are recognized and included within these fundamental constitutional structures, which they are normally part of, as clarification of the national identity of Member States45.

Now, not only have they been put in the scope of Article 4(2) but also they or more precisely the Committee of the Regions has been given a right to file actions for infringements of the subsidiarity principle by legislative acts of the Union before the ECJ under Article 263(3). Thus this duty to respect regional and local structures is even more concrete on the side of the Union bearing in mind that it was reinforced by the inclusions of these structures within the subsidiarity principle46. This does not alter the fact that regional and local authorities are only indirectly tied to the national identity that is through the Member States and their constitutions in light of EU law47. This implies that certain specificities at regional and local level might not be incorporated within the scope of this provision.

2. Article 4 (2) and other Treaty provisions

It is firmly established within the methods of legal interpretation that a provision cannot be analysed in isolation, without any relation to the other relevant provisions. This is even more so when complex legal texts are concerned such as the EU Treaties. Therefore, Article 4(2) must be read, first of all, in the context of Article 4 as a whole, and then in relation to other relevant articles such as Article 2, Article 5, Article 7 and Article 3(3) TEU (See A.I.1.).

The national identity clause in light of the conferral of powers principle (Article 4(1) and Article 5(1) and (2) CTEU), in conjunction with the principles of subsidiarity48 and Puttler, in: Calliess/Ruffert, EUV Art. 6, Rdn. 216. Also see Beutler in: von der Groeben/Schwarze, EUV/EGV, Rdn. 204, focusing on the regional self-government.

Amato/Ziller, The European Constitution, p. 81, Opinion A.G. Trstenjak of 4. June 2008, Case C-324/07, Coditel Brabant SPRL v.Commune d’Uccle and Region Bruxsells-Capital, para. 85.

Amato/Ziller, The European Constitution, p. 190.

This is best illustrated by the fact that within the German constitutional identity embodied in Article 79(3) local self-government is not part of this identity while regional self-government is. See Puttler, supra note 12, Rdn. 19.

See Beutler, supra note 26, Rdn. 205 and Strumpf, in: Schwarze, EU-Kommentar, Rdn.38 in the context of Article 6(3) TA.

proportionality (Article 5(3) and (4)), and fidelity clause (Article 4(3)) should be understood as representing the limits on the exercise of EU powers conferred to it from the Member States. As a matter of fact even Article 6(3) TA was understood by some authors in the same way regardless of the positioning and usage of this provision prior to the Lisbon Treaty50. The Union institutions have a duty to respect the national identity inferred in the phrase “full mutual respect” and should not take actions that could jeopardise the fundamental political and constitutional structures of the Member States which is implied by Article 4(3) CTEU subparagraph 151. Such a reading is also justified by the positioning of the national identity clause in paragraph 2 and before the fidelity principle regulated in paragraph 3 within Article 4. Different reading of this relation would make the national identity clause redundant. Thus it can be inferred that the Treaty in this way qualifies the fidelity principle through the protection of national identities of the Member States52.

Additionally, the reason why the first paragraph was inserted in Article 4 which emphasizes the residual powers of the Member States and the ordering of paragraphs in this article could be interpreted as having an intention to show that the external limit of the exercise of the Union’s conferred powers are the fundamental constitutional structures of the Member States. Also that is why the delimitation of powers between the Union and the Member States was discussed together with Article I-5 during the Constitutional Convention53.

On the other hand, the limitation on the exercise of conferred powers of the Union cannot run counter to the values of the EU listed in Article 2 TEU, which are basically common to the Member States and serve as a main condition under Article 49 for membership in the EU54. If the interpretation of national identity runs counter to the basic values of the EU, then actions for the suspension of voting rights under Article 7 TEU could be taken55. This position opens the door for the ECJ to assess the national identity in light of EU law i.e. values set in TEU which is not enthusiastically welcomed by the national constitutional courts. However the interpretation suggested here is one that envisions a control over the outer limit of EU law, Article 2 CTEU, as in the opposite case the ECJ von Bogdandy/Schill, supra note 34, Rdn. 33, put the emphasis on the proportionality and are not referring to the subsidiarity Rdn. 33, while Puttler refers to both, see Puttler, in: Calliess/Ruffert, EUV/AEUV, 4. Aufl. 2011, Art. 4 EUV, Rdn. 10.

Beutler, supra note 26, Rdn. 206.

„Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties“.

Puttler, supra note 12, Rdn.10.

Ibid. Rdn. 14 In the context of Article 6(1) and (3) TA see Beutler, supra note 26, Rdn. 205.

von Bogdandy, supra note 4, (715). See also Puttler, in: Calliess/Ruffert, EUV Art. 6, Rdn. 218.

would be projecting EU values, interpreted by the Court itself, on national identity and by its essence asserting absolute primacy of EU law.

The

Abstract

textual and contextual argumentation connected to the interpretation and understanding of national identity clause is made more tangible by looking into the case-law of the national constitutional courts and the ECJ in the next section. Even though tangible, nevertheless they remain complex and without a firm conclusion on their future impact.

B. National identity clause in the national constitutional courts’ and the ECJ’s case-law In the previous section Article 4(2) was discussed through the textual and contextual analysis which does shed some light on the whole issue, thus making such arguments only supplementary, but does not answer some very important questions. Namely, who is to decide upon the content of national identity? And who is to control the conformity of EU legislative acts and action with the national identity? The answers to these questions do show that in essence there is an inherent need placed within the frames of this provision for cooperation between the two legal orders, represented by the highest judiciary instances, in order for this provisions to play a constructive role. However there seem to be certain limit to the achievement of this cooperation.

I. The definition of national identity in national constitutional courts caselaw56 <

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