Constitutional identity in the jurisprudence of the Court of Justice of the European Union

Orbán, Endre (2022) Constitutional identity in the jurisprudence of the Court of Justice of the European Union. HUNGARIAN JOURNAL OF LEGAL STUDIES, 63 (2). pp. 142-173. ISSN 2498-5473

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Abstract

Court rulings and publications on constitutional identity have spread in a sort of viral way since the entry into force of the Lisbon Treaty in 2009. Accordingly, many scholars analyse the possible sources of the term and the risks associated with its use, including the fact that opponents of constitutional democracy can use it as a great weapon, as there is no objective standard in terms of its content. In this regard two different positions can be distinguished concerning the function of the constitutional identity clause and the determination of the content elements of the constitutional identity. The first perspective looks at the notion of identity as a manifestation of Euroscepticism, according to which the identity clause is in fact a possible form of derogation under obligations deriving from European integration. In contrast, the second perspective leads to a cooperative interpretation of the concept of identity, if you like, an integration-friendly dissolution of the concept of sovereignty in a sort of post-Westphalian meaning of identity, which can be linked to the concept of ‘unity in diversity’. Accordingly, Article 4 (2) TEU allows for the articulation of individual Member State specificities and establishes a mechanism in which different Member State and supranational perspectives can be harmoniously aligned with each other. This paper looks at Article 4 (2) TEU as an embodiment of the idea of ‘cooperative constitutionalism’ having the function of a ‘valve’ and presents all the relevant cases where constitutional identity as a legal standard has been raised in front of the Court of Justice of the European Union up to 2020.

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