Sameness and selfhood: The efficiency of constitutional identities in EU law

• DOI: http://doi.org/10.1111/eulj.12275
• Author: Julien Sterck
• Date: 01 September 2018
• Published date: 01 September 2018

ORIGINAL ARTICLE

Sameness and selfhood: The efficiency of

constitutional identities in EU law

Julien Sterck

†

Abstract

This article enquires into the formal dimension of constitutional identity by focusing not on what it

consists of but on how it is expressed in the different discursive practices developed by constitu-

tional courts. Contrasting constitutional identity as sameness and constitutional identity as selfhood

shows that domestic courts can favour either a substantive determination of core constitutional fea-

tures or a performative approach where the reflexive ability to define oneself prevails. Such a choice

conditions the judicial strategies developed in the interactions with the Court of Justice, and their

effectiveness. From this perspective, the accommodation in EU law, in light of the respect for Mem-

ber States' national identity affirmed in Article 4(2) TEU, of these domestic identity claims rooted in

the supremacy of the Constitution, depends less on what is asked for than on how it is asked for.

1|INTRODUCTION

The decisions of the Court of Justice related to the respect for national identities under Article 4(2) TEU are

described as opaque and inconsistent,

1

an analysis which stems from a European perspective where identity is pri-

marily conceived as referring to a certain normative content. Such analysis often relies on a synonymy one assumes

between the constitutional identity expressed at domestic level and the national identity referred to in Article 4(2)

TEU. However, identity is ‘an essentially contested concept’

2

because what actors mean by this notion varies accord-

ing to the coherence of the legal order where it acquires meaning. Identity is thus not only a certain normative con-

tent but also a certain form of discourse. Therefore, this paper argues that a greater consideration for this formal

dimension offers a more coherent understanding of the conditions for a coordination between the domestic and

European levels through the notion of identity.

Three connected hypotheses form the basis of this renewed approach to identity. They concern the domestic

approach to this notion, the discursive nature of constitutional identity, and the different modalities of its expression,

†

Référendaire, Court of Justice. The views expressed in this paper are purely personal to the author. I am grateful to the reviewers

and the editor of this journal for their constructive comments and suggestions. I am also grateful to Theodore Konstadinides, Audrey

Guinchard, Yseult Marique, Sabine Michalowski and Steve Peers for their comments on earlier versions of this paper. All errors and

omissions remain my own.

1

For instance, E. Cloots, National Identity in EU Law (Oxford University Press, 2015), 4–14.

2

M. Rosenfeld, ‘Constitutional Identity’, in M. Rosenfeld and A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law

(Oxford University Press, 2012), at 756, 756.

Received: 28 June 2017 Accepted: 27 October 2017

DOI: 10.1111/eulj.12275

Eur Law J. 2018;24:281–296. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 281

in particular the distinction that can be made between constitutional identity as sameness and constitutional identity

as selfhood.

First, an analysis of the identity issue needs to be carried out from below since this phenomenon emerges at the

national level. Through Article 4(2) TEU, Member States as masters of the treaties have reflected in EU law a domes-

tic concern. Assessing what is asked for by Member States is a necessary first step to be undertaken if one wants to

subsequently understand the challenges these domestic claims present for their reception in EU law. In consequence,

the analysis will proceed from the case law of constitutional courts, which is the forum where constitutional identity

finds its inscription in positive law.

3

Arguably, proceeding from the unifying perspective of Article 4(2) TEU presents

the risk of assuming a pre‐defined understanding of the notion. For instance, constitutional identity is often described

in substantive terms as ‘a synonym for constitutional core principles protected against the primacy of EU law’,

4

a def-

inition that is misleading. In contrast, grounding the analysis in domestic judicial discourses preserves the plurality

that characterises its manifestations at domestic level.

Secondly, constitutional identity is primarily a certain form of discourse. Constitutional texts do not themselves

vest certain of their provisions with identity properties. Constitutional identity is thus the result of an interpretative

act. It consists of claims made by constitutional courts to protect a degree of constitutional autonomy within an overall

willingness to take part in the process of European integration. This discursivedimension of constitutional identity jus-

tifies the attention given to this notion despite the few explicit references it receives in case law.

5

Identity seen as a

form of discourse gives reasons for an emancipation from semantic occurrences where the notion is explicitly identified

as the centre of the dispute. Defining the ambit of the dialogue sustained on its basis rather depends on the identifica-

tion of a certain type of reasoning whereby Member States seek to protect their idiosyncrasies within the European

Union.

Thirdly, seeing constitutional identity as a form of discourse stresses the importance of differentiating the various

modes of its expression. From this perspective, questioning this notionextends beyond the singling out of certain con-

stitutional features. The analysis also requires taking into consideration the performative dimension that is inherent in

constitutional identity as it results from reflexive discursive acts whereby domestic institutional actors identify and

assert these features. Further insight into the role played by identity is to be gained through an awareness of the com-

plexity that emerges when the focus is not only put on what it expresses but, more importantly, on how it is expressed.

In this regard, the core of this paper builds on Ricœur's analysis of identity and the distinction he makes between

two conceptions, identity as sameness (mêmeté), on the one hand, and identity as selfhood (ipséité), on the other.

6

Fol-

lowing this distinction, it can be argued that constitutional courts may favour a constitutional identity conceived as

sameness through the prevalence of the identification of a characteristic constitutional content. Alternatively, they

can also have selfhood prevail whereby, beyond considerations of content, constitutional identity primarily corre-

sponds to the reflexive ability to define oneself. Paying attention to the diversity in the formulations of constitutional

identities reveals the same diversity in the interactions between constitutional courts and the Courtof Justice. Consti-

tutional identities are manifold, as are the strategies developed on their bases. Opting for constitutional identity as

sameness or selfhood also determines the tones, either polemic or irenic, of the engagement with the European court.

To highlight this difference, the Bundesverfassungsgericht (BVerfG) and the Conseil constitutionnel will receive par-

ticular consideration. Contrasting German sameness and French selfhood involves a certain degree of reconstruction,

as the case law of each constitutional court displays traces of both modalities. Still, their constitutional identity deci-

sions are arguably sufficiently characteristic of the two ways in which one can constitutionally talk about oneself to

3

M. Troper, ‘Identité constitutionnelle’, in B. Mathieu (ed.), Cinquantième anniversaire de la Constitution française: 1958–2008 (Dalloz,

2008), at 123, 123.

4

M. Wendel, ‘Lisbon Before the Courts: Comparative Perspectives’, (2011) 7 European Constitutional Law Review, 96, 131.

5

L. Burgorgue‐Larsen, ‘A Huron at the Kirchberg Plateau or a Few Naïve Thoughts on Constitutional Identity in the Case‐Law of the

Judge of the European Union’,in A. Saiz Arnaiz and C. Alcoberro Llivina (eds.), National Constitutional Identity and European Integration

(Intersentia, 2013), at 275.

6

P. Ricœur, Oneself as Another (Kathleen Blamey tr., University of Chicago Press, 1992).

282 STERCK