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It has been firmly established that constitutional courts are best placed to define the content of the national identity as referred to in Article 4(2) CTEU57. Only these institutions can authoritatively determine the true meaning and scope of the relevant constitutional provisions regulating the fundamental values and principles of constitutional identity.
Accordingly, as the establishment of the meaning and scope of national identity would involve interpretation of national law, the ECJ under Article 19 CTEU lacks the jurisdiction Here the focus is on constitutional courts due to concerns for the length of the paper. There is a respective case law of high courts with constitutional jurisdiction in other Member States that should not be underestimated and taken into consideration. Ex: Belgium, Denmark, Estonia, Ireland etc.
Opinion A.G. Maduro of 08 October 2008, Case C-213/07, Michaniki AE v. Ethniko Simvoulio Radiotileorasis, para. 30, Opinion A.G. Maduro of 20 September 2005, Case C-53/04, Cristiano Marrosu and Gianluca Sardino v.
Aziedna Ospidaliera Ospedale, para. 40. See also von Bogdandy, supra note 4.
to rule upon such cases. It is certain though that the latter cannot be perceived in absolute terms as the application of national identity clause has its own limits within EU law seen through Article 2 TEU.
Even though almost every European constitution contains a provision that declares, regulates or at least alludes to the core elements of the constitutional identity, the association of national identity, in the sense of Article 4(2) CTEU, to these provisions has been of a recent date. As a matter of fact it has been only the Federal Constitutional Court of Germany (FCC) so far that has directly established the link between the national identity clause and the constitutional identity as envisaged in Article 79(3) of the German Basic Law (GG).
Other constitutional courts either did not have the opportunity to establish this link or have missed the first opportunity to do so.
Be this as it may, one should not draw wrong conclusions that constitutional identity has not played a substantial role in the cases involving both primary and secondary EU law.
The notion of national or constitutional identity has not been alien to the national constitutional courts in cases dealing with EU law. In the past years and decades they have been invoking constitutional provisions that express core values of the constitutional identity in order to resist, more in abstract and preventive manner, the excessive exercise of Union competences and the absolute primacy of EC/EU law.
As every other discussion on the relationship between the national constitutions and EU law, also here, one has to begin with the already well-known case-law of the constitutional courts of Germany and Italy, that is claimed by some authors to have shaped the national identity clause58.
In the early 1970s the FCC started writing the first concrete chapter on the relationship between national constitutional law and EU law that influenced so much the
future development of this never-ending story. In Solnage I this court reasoned that:
“ it (Article 24 GG) does not open the way to amending the basic structure of the Basic Law, which forms the basis of its identity, without a formal amendment to the Basic Law, that is, it does not open any such way through legislation of the interstate institution59”.
Reestman, supra note 8, p. 374, (380).
Federal Constitutional Court of Germany, Solange I, 2 BvL 52/71 of 29 May 1974, Decisions of the Bundesverfassungsgericht, Federal Republic of Germany: International Law and Law of the European Communities 1952-1989, p. 270 (275).
This view has been affirmed and furthered along the line in its future case-law in first place by Solange II60 and Maastricht decision which referred to Article F(1) Treaty of Maastricht in the context of subsidiarity, proportionality and conferral of powers61. Most significantly the value of constitutional identity in light of Article 4(2) TEU has been emphasised and contextualised in the Lisbon decision (see B.I.2).
Italian Constitutional Court (ICC) at almost the same time formed its counter-limits (‘controlimiti’) doctrine that puts limits to the primacy of EU law by implying the constitutional identity. In the Frontini case62 the ICC made clear that EC powers or the exercise thereof cannot in any case “violate fundamental principles of our (Italian) constitutional order or the inalienable rights of man”. In a case of violation, which according to this court is quite unlikely to occur, the ICC has competences to review the acts or actions of the EC and now EU institutions. The ICC has affirmed this standard in two other landmark cases, Granital63 and Fragd64, but nevertheless, to this date has neither precisely defined what this abstract formulation stands for, or better said which principles and values it entails, nor has it applied it to EU law.
The French Constitutional Council (CC) has also been fruitful in the recent years on the issue at hand. Its initial wording of “an express contrary provision of the Constitution” that would justify a disobedience towards a secondary EC law65, had changed to a “rule or principle inherent to the constitutional identity of France, except when the constituting power consents thereto (to the application of the EU act)” 66 as a limit on the application of the same source of law. But regardless, the idea behind it remains the same, embodied in the Federal Constitutional Court of Germany, Solange II, 2 BvR 197/83 of 22 October 1986, Decisions of the Bundesverfassungsgericht, Federal Republic of Germany: International Law and Law of the European Communities 1952-1989, p. 613 (625).
Federal Constitutional Court of Germany, Maastricht Treaty 1992 Constitutionality Case, 2 BvR 2134 and 2159/92, Oppenheimer, The Relationship, 1994, p. 527 (556, 574).
More on these three cases see Mayer, in:
Principles of EU ConLaw, 281, (295-300).
ICC, Frontini v. Ministero delle Finanze of 27 December 1973, in: Oppenheimer, The Relationship, 1994, p.
ICC, Spa Granital v. Amministrazione delle Finanze dello Stato of 8 June 1984, in: Oppenheimer, The Relationship, 1994, p. 643 (651).
ICC, Fragd v. Amministrazione delle Finanze of 21 April 1989, in: Oppenheimer, The Relationship, 1994, p.653 (657).
When the constitutionality of primary law is at stake, then the phrase used by the Council, which represents its standard of control in the process of ratification, is for the commitments taken by the treaties not to “call into question constitutionality guaranteed rights and freedoms or adversely affect the fundamental conditions of the exercising of national sovereignty” See French Constitutional Council Decision No 2004-505 DC of 19 November 2004 para. 7 and also Decision No 2007-560 DC from 20 December 2007, para. 9.
More on the provisions which are specific to France and thus are part of the constitutional identity see Reestman, supra note 8, p. 374 (388). Here a note should be taken on the possible area of conflict regarding, that is the policy, or better said lack of any on the respect and recognition of racial and ethnic minorities in France and the values of the Union envisaged in Article 2 CTEU which also include the respect for the rights of persons belonging to minorities.
doctrine of ‘reserve de constitutionnalite’ i.e. the acceptance of primacy of EU law with certain constitutional limits67.
Nevertheless, perhaps crucial for the greater awareness and significance of the national identity clause both in France and Spain, and obviously broader, are the decisions of the CC and the Spanish Constitutional Tribunal (SCT) where the views were shared between the two institutions on the meaning of the then Article I-5 CT in regards to Article I-6 CT, the primacy clause. It was stated that the relation and positioning of the two provisions is a clear sign that national identity represents the limit to the primacy of EU law over the national constitutions and this is why they did not find the primacy clause to be in conflict with the constitution since it did not alter the scope of the already existing doctrine68.
Since 2004, on the other hand, the pattern created by the FCC and ICC, and now shyly applied by the CC, has been followed by the other constitutional courts of the new Member States that lead Sadurski to name this trend as ‘Solange Chapter 3’69. However, this trend has been characterized by an interesting paradox that is definitely noteworthy. While in the period prior to accession to the EU these states put a lot of effort in promoting the integration process as the only path for their further democratization, after the accession they have set the limits to EU law rooted in constitutional provisions declaring the democratic character of the state based on the rule of law70.
The Czech Constitutional Court (CCC) is an interesting example in discussing the national identity clause. Following an already settled case law, beginning with the Sugar Quota Case71, the CCC’s first decision dealing with EU matters and also where the threshold was set, in its Lisbon I decision stated that the application of Union law in the Czech Republic has its limits in the “untouchable” material core of the constitution. The material core is stemming out of the principles of the “democratic state governed by the rule of law” of Article 9(2) and Article 1(1) of the Constitution72. In the follow up to this decision, Lisbon II, it has resisted the pressure from the applicants and firmly declined to list Groussot, in YEL, 89, (105-107).
French Constitutional Council, Decision 2004-505 DC Treaty Establishing a Constitution for Europe, paras. 12 and 13, and Spanish Constitutional Tribunal, Declaration on the Establishing a Constitution for Europe, DTC 001/2004, para. 4.
Sadurski, ELJ (2008), 1.
Ibid. p. 4. Polish Constitutional Tribunal, Judgment K 18/04 of 11 May 2005, Hungarian Constitutional Court, Decision 17/2004 (V. 25.), Latvian Constitutional Court, Case no. 2008-35-01 of 7 April 2009.
CCC, Decision PL. US 50/04 of 8 March 2006.
Treaty of Lisbon I, Decision PL. US 19/08 of 26 November 2008 paras. 85, 89, 94, 91, 93 and 114.
the non-transferable competences73 or declare the elements of the material core of the constitution74 by which it belied the ideas of fundamental resemblance with the FCC’s case law75. The logic behind the reasoning appears to be very sound and legitimate. The approach taken was to avoid the severe criticism that the FCC has undergone for its judicial activism in the Lisbon decision and inter alia for going too far with the definition and scope of constitutional identity and essential state functions. Therefore the CCC justified this move by stating that if it decided differently it would cross the line of its competences and in that way encroach the decision-making powers of political bodies because of which it would unavoidably be labelled as an activist court76.
The general overview of national constitutional courts’ case-law shows a relatively high level of convergence when Article 4(2) CTEU is concerned. Yet, common understanding of the notion of constitutional identity is not very likely, regardless on the values and principles shared by these states which are also inherent to the EU.
Notwithstanding the absence in most of the cases of a direct referral and invocation of the national identity clause, still the wording used by the courts seems to be in line with the national identity clause. Nevertheless these institutions have left open the precise determination of the content of national or constitutional identity by using general and abstract formulations, frequently citing only the relevant constitutional provisions and in that sense providing themselves with a certain leeway in future cases.
2. The Lisbon decision of the Federal Constitutional Court of Germany
There are two main reasons why the Lisbon decision of the FCC is discussed separately from the case-law of the other national constitutional courts. First, the importance of this decision is doubtless when Article 4(2) CTEU is concerned. Second the overall evident influence and importance of this institution in shaping the relationship between the national constitutional law and EU law.
Adhering and further developing the principles introduced in its previous decisions, the FCC in its Lisbon decision77 clarifies and contextualises the constitutional identity of Germany on both constitutional and European level. Respecting the aforementioned CCC, Treaty of Lisbon II, Decision PL. US 29/09, para. 111.
Ibid. para. 112.
See editors note on CCC, Lisbon II, EuConst 5 2009, 345.
Ibid. para. 113.
Federal Constitutional Court, Lisbon decision, 2 BvE 2/08 from 30.June.2009.
continuity the court identifies the constitutional identity through Article 23(1) GG78 in conjunction with Article 79(3) GG79, the so-called ‘eternity clause’, and accordingly its duty to protect and guarantee this identity, ‘identity review’, hence adding a new avenue for review of EU law. For this supplementation of the previous solange and ultra vires review doctrines80 it finds support not only in the GG but also in the CTEU, or more precisely Article 4(2), therefore concluding the mutuality of the obligation under both legal orders that at the same time is in conformity with the principle of openness of German law towards EU law and loyalty clause81. With this reasoning the FCC established the direct link between constitutional identity of Germany and the national identity clause in the CTEU.