Framing and managing constitutional identity conflicts: How to stabilize the modus vivendi between the Court of Justice and national constitutional courts

Abstract

In the last decade, constitutional identity review mechanisms have emerged in several Member States. The proliferation of these mechanisms increases the risk of jurisdictional conflicts and is a permanent threat to the primacy of EU law. As it is highly unlikely that the conflict over the “last word” will be settled soon, solutions for stabilizing the delicate modus vivendi between the ECJ and national constitutional courts are needed. This requires the identification of a common problem. The article seeks to establish a new framework for the comparison and systematization of identity review mechanisms in the Member States. First, it develops a typology of identity reviews in the EU judicial space, thereby making it possible to distinguish identity reviews that are particularly prone to conflict. The article then identifies essential features of national settings that might determine and foster the emergence of such conflict-prone identity reviews. These features serve as a basis for the development of tailor-made solutions to manage jurisdictional conflicts and stabilize the modus vivendi between the ECJ and national constitutional courts.