Dealing with Parallel Universes: Antinomies of Sovereignty and the Protection of National Identity in European Judicial Discourse

Abstract

This article addresses the relevance of national identity to EU and domestic judicial practice. It argues that there are two parallel universes of protection in the EU Treaty and national constitutions which often pose conflicting obligations to those bound by them and which do not communicate nearly enough. Judicial interpretation of the relevant EU and national provisions is a welcome development but not always key to reconciling differences. To this purpose, the article reflects on the CJEU’s interpretation of the EU’s renewed commitment in the Lisbon Treaty to protect national identities. It also provides a comparative overview of how Member States have construed their own national identity. The latter involves making connections with current issues emerging from post-Lisbon domestic case law that this article contributes to and advances. As illustrated in this article, the respect for national identity afforded by the Treaty is amorphous and often fails to capture the level of protection mandated by national constitutions. At the same time, national constitutions provide a fuzzy picture with different levels of commitment to identity. The way these two constitutional charters have been interpreted by European and certain national judges will help us identify the different approaches and illustrate the conflict between them vis-à-vis the concept of an EU federalized structure. Ultimately, the article aims to create a typology of situations where identity retention should be reserved to Member States with a view to resolving the current tension between the two legal orders. It will point to the possibility for a plurality of ‘limited powers’ approach acting as a check on the EU, while avoiding the risk of jeopardizing the course of European integration.