The dangers of constitutional identity

• DOI: http://doi.org/10.1111/eulj.12332
• Author: Federico Fabbrini,András Sajó
• Date: 01 July 2019
• Published date: 01 July 2019

ORIGINAL ARTICLE

The dangers of constitutional identity

Federico Fabbrini* |András Sajó

†

Abstract

This article purports to expose the dangers of the concept of constitutional identity –a doctrine

shaped by apex state courts to shield areas of the national legal systems from the influence of Euro-

pean law. First, the article overviews the use of the concept of constitutional identity in the case law

of national and supranational courts, mapping the growing expansion of this doctrine. Second, the

article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal

origins. 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 con-

cept such as constitutional identity is poised to weaken, if not undermine tout court, the process of

European integration.

1|INTRODUCTION

Few concepts appear to be currently more à la mode among legal scholars than the notion of constitutional identity

–a doctrine developed by apex state courts to generically shield areas of the national legal systems from the influ-

ence of European law. Since 1992, Article 4 TEU has affirmed that the European Union (EU) shall respect the member

states' “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional

and local self‐government.”In recent years, however, national courts have increasingly relied on this concept of con-

stitutional identity –or on national variants thereof –to resist the application of EU law, thus limiting the principle of

supremacy affirmed by the European Court of Justice (ECJ). Moreover, the concept of constitutional identity or anal-

ogous doctrines have been with greater frequency employed also vis‐à‐vis the European Court of Human Rights

(ECtHR), to derogate from the uniform interpretation of the European Convention on Human Rights (ECHR). These

judicial developments, otherwise, have been happily supported in the scholarship, which nurtured the emergence of

the constitutional identity doctrine and actively promoted its transplant.

*Full Professor of EU Law at the School of Law & Government of Dublin City University (DCU) and Director of the DCU Brexit Institute

†

Full Professor of Comparative Constitutional Law at Central European University (CEU) Budapest and Judge Emeritus of the European Court of Human

Rights

The authors would like to thank Sose Mayilyan and Annelieke Mooij for editorial assistance.

Received: 13 October 2018 Revised: 30 April 2019 Accepted: 22 May 2019

DOI: 10.1111/eulj.12332

Eur Law J. 2019;25:457–473. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 457

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-

ereignty

1

; Hungary has enshrined in its Constitution the obligation for state organs to protect the self‐identity of

the nation rooted in the historical constitution

2

; 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.

3

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.

4

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

DOCTRINE

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

1

See generally F. Fabbrini (ed), The Law & Politics of Brexit (Oxford University Press, 2017).

2

7

th

Amendment to the Fundamental Law of Hungary, adopted June 20, 2018, Art. 1.

3

‘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.

4

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