The spreading of the concept of constitutional identity is certainly in tune with the current Zeitgeist of increasing
skepticism toward –if not outright defiance of –the EU. As we write, the EU is facing a plurality of geo‐political chal-
lenges: the United Kingdom has decided to withdraw from the EU –with the aim to “take back control”of its sov-
; Hungary has enshrined in its Constitution the obligation for state organs to protect the self‐identity of
the nation rooted in the historical constitution
; and the new Italian government coalition contract affirmed “the prin-
ciple of the primacy of [the Italian] Constitution over EU law”and vowed to restore national sovereignty against
alleged interferences from the EU.
In this context, it may only appear obvious that courts and scholars across Europe
may be welcoming a doctrine such as that of constitutional identity which strengthens the nation state against
alleged interferences from the EU or the ECHR.
The respect of national identity inherent in the fundamental, political and constitutional structures is an accepted
principle of EU law and it reflects a compromise in the integration process. We are convinced however that the con-
cept of national constitutional identity as applied by a growing number of constitutional courts and governments rep-
resents a real and present danger to the process of European integration, as the doctrine is drenched with neo‐
sovereigntist features and is contrary to the rule of law. Moreover, its practical application is liable to create more
harm than good.
What may have been conceived as a safeguard to protect non‐transferred elements of national
constitutional sovereignty is used to reclaim sovereignty.
The purpose of this article is threefold. First, the article overviews the use of the concept of constitutional identity
in the recent case law of national and supranational courts, mapping the growing expansion of this doctrine by state
courts as well as, albeit to a more limited degree, by the ECJ and ECtHR. Second, the article seeks to reconstruct the
genealogy of the concept of constitutional identity, tracing its legal origins in the EU treaties and relevant national
jurisprudence. Third, the article advances a normative criticism of the concept of constitutional identity, explaining
how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use.
Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised
to weaken, if not undermine tout court, the process of European integration.
As such the article is structured as follows. Section 2 overviews the emergence of constitutional identity concepts
by European national and supranational courts, summarizing the latest developments in the case law. Section 3 ana-
lyzes in historical perspective the legal origins of the notion of constitutional identity with the aim to ground its doc-
trinal flourishing. Section 4 then critically assesses the notion of constitutional identity from a normative viewpoint,
stressing how the concept suffers from a chronic lack of determinacy, which results in the arbitrariness of its use.
Section 5 then underlines the practical consequences of the use of a defensive concept like constitutional identity,
arguing that the term actually and potentially serves nationalism and contributes to European disintegration. Section
6, finally concludes, by suggesting possible strategies that may contain the use of constitutional identity.
2|THE RECENT JUDICIAL SPREAD OF THE CONSTITUTIONAL IDENTITY
In the past few years, the concept of national constitutional identity has been increasingly invoked by national
supreme and constitutional courts across Europe. While the doctrine of constitutional identity has a deep genealogy,
as we will point out in Section 3, in this Section we will map the growing use of the constitutional identity doctrine in
See generally F. Fabbrini (ed), The Law & Politics of Brexit (Oxford University Press, 2017).
Amendment to the Fundamental Law of Hungary, adopted June 20, 2018, Art. 1.
‘Contratto di governo Lega‐M5 s: ecco il testo’,available at http://espresso.repubblica.it/palazzo/2018/05/18/news/contratto‐di‐governo‐lega‐m5s‐ecco‐
il‐testo‐definitivo‐1.322214 (last visited 14 February 2019). See also R. D'Alimonte, ‘How the Populists Won in Italy’(2019) 30 Journal of Democracy 114.
Case C‐62/14 Gauweiler, Opinion of AG Cruz Villalón, ECLI:EU:C:2015:7 §35 (holding that it is an “all but impossible task to preserve this Union, as we
know it today, if it is to be made subject to an absolute reservation, ill‐defined and virtually at the discretion of each of the Member States, which takes
the form of a category described as ‘constitutional identity’.”).
458 FABBRINI AND SAJÓ