Identity Review

Abstract

AbstractThis chapter examines the function of the national identity clause enshrined in Article 4(2) TEU and how it has been used by the national level in protecting national constitutional particularities. This head of review gained prominence in recent years as a source for contestation of EU law, and its use in the rule of law backsliding in a number of Member States. In this context, this chapter offers an analysis of the national constitutional jurisprudence and its approach to constitutional identity. In so doing, it presents the wide range of national approaches to safeguarding constitutional identity: the German unconditional take on constitutional identity as a limit to the principle of primacy of EU law; the Polish shift from constructive to destructive use of constitutional identity; and finally other Member States that envisage some identity-based limits to primacy, while at the same time offering a range of reconciliatory options should a conflict arise. The chapter further explores the case law of the Court of Justice, by looking at the different ways in which Article 4(2) TEU has featured in its decisions on free movement. The chapter concludes with suggesting a pluralist interpretation of the national identity clause that would accommodate both national constitutional concerns and the requirements of the principle of primacy of EU law.