in particular the distinction that can be made between constitutional identity as sameness and constitutional identity
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 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’,
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: 1958–2008 (Dalloz,
2008), at 123, 123.
M. Wendel, ‘Lisbon Before the Courts: Comparative Perspectives’, (2011) 7 European Constitutional Law Review, 96, 131.
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.
P. Ricœur, Oneself as Another (Kathleen Blamey tr., University of Chicago Press, 1992).