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

Date01 September 2018
Published date01 September 2018
Sameness and selfhood: The efficiency of
constitutional identities in EU law
Julien Sterck
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.
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,
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
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.
For instance, E. Cloots, National Identity in EU Law (Oxford University Press, 2015), 414.
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;24:281296. © 2018 John Wiley & Sons 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.
Arguably, proceeding from the unifying perspective of Article 4(2) TEU presents
the risk of assuming a predefined 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,
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.
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
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.
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
M. Troper, Identité constitutionnelle, in B. Mathieu (ed.), Cinquantième anniversaire de la Constitution française: 19582008 (Dalloz,
2008), at 123, 123.
M. Wendel, Lisbon Before the Courts: Comparative Perspectives, (2011) 7 European Constitutional Law Review, 96, 131.
L. BurgorgueLarsen, A Huron at the Kirchberg Plateau or a Few Naïve Thoughts on Constitutional Identity in the CaseLaw 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.
P. Ricœur, Oneself as Another (Kathleen Blamey tr., University of Chicago Press, 1992).

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