Abstract
AbstractThe issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.
Highlights
The issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes
The practices experienced in Europe, the most convincing holder of constitutional identity, which can be invoked in legal proceedings, seems to be the constitution itself
4.Conclusion The identity of the constitution is found among the provisions of constitutional texts and related jurisprudence that and exclusively feature a status that was drafted during the Court of Justice of the European Union (CJEU) Art 4.2 TEU
Summary
As stated in the introduction, constitutional identity, on the one hand, has gained a positive legal formulation in Article 4.2 TEU. Constitutions, on the other hand, do not include any provision containing the term “constitutional identity” or the like. The application of constitutional identity by constitutional courts has mainly been the result of defining the limits of EU law within domestic legal systems. There are three states—Germany, Hungary, and Italy—which have already used constitutional identity in their jurisprudence. In providing an overview of the jurisprudence on constitutional identity, first the position of the Court of Justice of the European Union (“CJEU”) is discussed, a description of the most relevant German, Hungarian, and Italian cases is presented
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