Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Identity has long been a contested concept in the social sciences. In contrast, legal scholars have come late to the analytical discussion about the concept. It was only in the late 2000s that the concepts of national and constitutional identity became part of the European legal discourse. Today, national identity is a legal concept in EU law. Article 4(2) of the Treaty on European Union obliges the EU to respect the national identities of Member States. A literal understanding of this provision suggests that any domestic interpretation would be consistent with EU law. This paper challenges this view. It differentiates between national and constitutional identity. The former refers to identity that can be connected either to a community’s ethnocultural characteristics or to its political institutions and foundational constitutional values. The latter is often called constitutional identity. Yet, this article defines the term constitutional identity differently by concentrating on identity attached to a democratic constitution. Thereby, it offers a novel, constitutionalist approach. The article argues that the concept of national identity in EU law is a constitutionalist one and demonstrates, using the example of Hungary, how an ethnocultural national identity runs counter to this constitutionalist concept and how a new constitutional identity may be developed. The implication of having a constitutional identity that respects universal constitutional principles is that such a constitutional identity would be more compatible with values at the European level.

The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed. Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices

The relationship between the German Federal Constitutional Court and the CJEU has been constantly reformulated and reshaped since the inception of the European Union. As Karlsruhe is not willing to accept the unconditional supremacy of EU Law, it has developed constitutional thresholds concerning the application of EU Law in the national legal order. Starting with its Solange I and Solange II case law, the Constitutional Court held that EU Law and the jurisprudence of the CJEU have to provide for a certain level of fundamental rights protection, which is required as a minimum by the German Constitution. It is the task of the CJEU to guarantee the protection of fundamental rights throughout the EU in every single case, while the Federal Constitutional Court would, in collaboration with the CJEU, restrict itself to only ensuring the general compliance with minimum requirements in fundamental rights protection. Another constraint for the applicability of EU Law in the national legal order is found in the so called ultra vires review. The Federal Constitutional Court asserts the right to declare EU legislation not applicable, if it exceeds the competence of the EU in a manifest way (according to the Honeywell criteria). In its Lisbon decision, the German Constitutional Court formulated its third tool of constitutional judicial control over EU law: the identity control. While at first it was assumed that this was only a theoretical assertion of national limits to EU law, the Court finally activated this control method for the first time in its Identity Control I decision in December 2015. The Court asserted its function to review sovereign acts determined by Union law if this was indispensable to protect the constitutional identity guaranteed by Art. 79 para. 3 of the Basic Law (GG). Against this background, the article analyses the procedural and substantive requirements of this new constitutional control tool and contrasts it with the Solange II and ultra vires review. It suggests that the new identity control is not a re-shaped form of the former fundamental rights control and cannot be seen as a Solange III. This is because the Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case – not only generally – the protection of fundamental rights that is indispensable according to Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 and Art. 1 para. 1 GG. However, the hypothesis is put forward that ultra vires control is only a special form of identity review. The former is also enshrined in Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 GG and is justified by the mandatory requirements concerning democratic legitimacy and the rule of law posed in Art. 79 para. 3 GG. The criteria formulated in the Honeywell decision by the Constitutional Court can therefore also be derived from the substantive content of constitutional identity. However, the ultra vires control should nevertheless keep its role as a separate review method. It formulates the specific requirements set by the identity control in the area of transgression of competences and is therefore more easily applicable for constitutional judicial practice. The last part of the paper examines the latest decision by the Federal Constitutional Court dealing with the question of restricting the precedence of Union law due to constitutional thresholds, namely the OMT-Case. Unexpectedly, the court addresses the dogmatic question of the relationship between ultra vires control and identity review and the decision confirms the findings and conclusions in this article in essential parts. Both the OMT and the Identity Control I decisions are milestones in shaping the relationship between the European and the national legal order, which have, however, in the present cases not provoked a clash between the CJEU and the Federal Constitutional Court. Yet, it is still for the future constitutional court prac

Besides the evolution of the concept of national identity through the work of scholars, a new era in the conceptualization of this concept came with the Lisbon Treaty and its so-called ‘’national identity clause’’ or the famous Article 4(2) TEU. Since Article 4(2) TEU does not determine the national identity of Member States, in order to determine it, our starting point should be its constitution, or, more precisely, certain principles of its constitution or a set of core values, principles and rules. A second important phase in this sense is the relevant constitutional court’s case law. In this context, particularly important role play decisions regarding the relationship between the law of the European Union and domestic constitutional law. The German Federal Constitutional Court has developed the most elaborate jurisprudence on constitutional identity. This German approach has inspired the positions adopted by some other constitutional courts, and very possible will be aslo inspiration for future Croatian Constitutional Court position in this context. As it arises from the analysis of the CJEU’s case-law, although it seems that Article 4(2) TEU offers a trap door to Member States to escape some of their EU law obligations, the overall picture is far from being so simple.

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts.
 The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed.
 It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law.
 The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments.
 It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.

Article 4(2) Treaty of the European Union (TEU) has not played any autonomous role up to now. Cases involving that provision have not been handled differently by the Court than cases involving derogations to free movement. In this article, after an analysis of the existingcase law on Article 4(2) TEU, I make the case for a bolder and exceptional use of Article 4(2) TEU where genuine national constitutional identity claims (NCI claims) directly clash with provisions of EU law. I provide a normative framework of analysis to identify genuine NCI claims and determine how the Court should address them. ‘Strait is the gate and narrow is the way’ is certainly a relevant metaphor to capture the possibility for genuine NCI claims to be successful. In view of its own mission and constraints, the Court is only to accept well motivated, narrow claims that are strictly based on crucial and distinctive features of national law that are embedded in the national Constitution and do not run against the own constitutional identity of the Union. Member State constitutional identity, Article 4(2) TEU, Extraordinary function, Constitutional conflicts, Instructions for use, Constitutional courts, Court of Justice, Balancing between national identity and fundamental rights, European Union constitutional identity, National and European constitutionalism

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions. The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves. The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

This contribution revisits theBundesverfassungsgericht'sorder for reference in theGauweilercase and focuses on two aspects of that order that until now have not received much scholarly attention. The first concerns the German federal constitutional court's dissociation of constitutional identity review under the German Basic Law from national identity review under Article 4(2) TEU. While the decision on the Lisbon Treaty had suggested that the two go “hand in hand”, theBundesverfassungsgerichtnow emphasizes the “fundamental” difference between the concept of national identity under Article 4(2) TEU on the one hand and the German concept of constitutional identity on the other. The second element is the German federal constitutional court's contention that its approach toultra viresand constitutional identity review can also be found in the constitutional law of many other member states. Yet, careful analysis demonstrates that while there does indeed seem to be a trend in that direction, and several elements of the German approach can also be found in other countries, very few national courts are as adamant as theBundesverfassungsgericht, and only a handful have developed their position with the same level of detail and ardor.

This collection contains contributions to an international conference held in Madrid in October 2010. It is based on the view that the European Union and its constitutional law cannot be isolated from its Member States and their respective constitutions, which are part of European constitutional law, and that the case law of the national courts, in particular the constitutional and supreme courts of the Member States, needs to be considered as much as the jurisprudence of the European Court of Justice. It is important to give particular attention to the relevant national constitutional courts' jurisprudence when analyzing European constitutional law. The book demonstrates the seriousness and theoretical depth of the thoughts developed by these courts to grasp the EU's construction and its relation to the Member States, the concepts of primacy of European law, sovereignty and national identity, democracy, and citizens' rights. The comparison of recent case law of the constitutional and supreme courts shows great divergences in concepts and terms, but it makes visible also an emerging dialogue among the courts.

In its Decision 22/2016. (XII. 5.), the Constitutional Court set several limits on the implementation of European Union (EU) acts that go beyond the scope of conferred or jointly exercised powers. The Constitutional Court has stated that, based on a motion to that effect, it could examine whether the joint exercise of powers infringes on human dignity and other fundamental rights or Hungary’s sovereignty and identity based on its historical constitution. The decision introduced a new, previously unknown limit to the exercise of shared competence in constitutional dialogue by formulating the term constitutional identity. The legal nature of Hungary’s constitutional identity is the specificity of the communities that make up the state and nation, which does not apply to other nations in the same way or at all. In Hungary, national identity is inseparable from constitutional identity. The fundamental values that constitute identity have been established through the historical development of the Constitution, and the nation has always adhered to them. The values that constitute a country’s identity are legal facts that cannot be renounced by either an international treaty or an amendment to Fundamental Law. The latest addition to the constitutional dialogue is Decision 32/2021 (XII. 20.). Its significance lies in the fact that the Constitutional Court was not reluctant to use the Ultravires argument against EU acts adopted in the absence of the unions’ competence. In connection with this, this study provides an overview of the relationship between the EU and Hungarian law through the practice of the Constitutional Court. The chapters cover the constitutional issues of the incorporation of EU Law, its emergence in the practice of the Constitutional Court, and the various approaches, from staying away to developing control and emphasising constitutional dialogue as a means of avoiding conflict.

National Identity, Constitutional Identity, and Sovereignty in the EU This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.

With the Lisbon-Judgment of June 2009 the respect granted in Article 4 § 2 TEU, of the national identities of the Member States has become a crucial notion of European constitutional law. The German Federal Constitutional Court connotes the national identity of Germany with the »eternity-clause« in Article 79 § 3 of the German Constitution, so the basic values and principles laid down in Articles 1 (human dignity) and 20 (rule of law, democracy, social protection and cohesion) shall not be affected by any constitutional amendmend nor by any act related to European integration. The protection of national sovereignty including self-determination of the German people is suggested by the Court to be part of the principles covered by the »eternity-clause« and, thus, determining the constitutional identity of Germany. The present contribution argues that this approach misconstructs the notion of national identity in neglecting the fundamental decision taken by the German people in the wake of World War II not to repeat earlier errors and to follow, in giving itself the Grundgesetz, a new approach of open democratic statehood. This is what the Preamble of the Grundgesetz makes plain when conceptualizing the German people as equal partner in a united Europe determined to serve worldwide peace. The commitment to a united Europe must be understood, therefore, as a basic element of Germanys national constitutional identity. Concepts of state and sovereignty have changed. This has implications for the notion of national identity. Article 4 § 2 TEU and many provisions of the Treaties aiming at the preservation of a number of sensitive policy areas like security and the monopoly of physical coercion, culture and education, social assistance etc. for national autonomous ruling in turn ensure constitutional diversity and self-determination of the Member States as a fundamental value of the Union. The respect of their national identity can, therefore, be construed as a »federal fundamental right« of the Member States to be respected by all political institutions of the Union and to be protected by the European Court of Justice with due regard to how each Member State constructs its national identity in concreto. Yet, it remains a term of Union law, to be constructed with regard to the integration of the Member States in the Union and on the basis of the common values and principles referred to in Article 2 TEU. Discussing the concept of national identity of the Union Member States and the modes of its protection implies understanding what the European Union is constitutionally. The vision by its framers of creating a new kind of political organization beyond statehood has led to a non-hierarchical, pluralistic structure based upon the rule of law, on cooperation and mutual thoughtfulness. Neither can a national Court escape from the legal commitments undertaken through the European Treaties, nor can these treaties be constructed as a means of supranational command and dictatorship over the states, the citizens of the Union and their courts. National identity in the European Union rather expresses mutual respect and co-responsibility of both levels for the common values and principles including the diversity and democratic self-determination of the people(s) of the Union.

Germany’s Federal Constitutional Court (FCC) plays an important role in interpreting the national constitution’s provisions for participation in the European integration process. The first category of cases that were considered by the Constitutional Court in the 1970s and 1980s were cases related to problems of human rights protection in acts adopted by institutions of the European Communities. According to the position of the FCC, the progressive development of integration law should not lead to a decrease in the standards of protection of the rights of German citizens provided by its Basic Law. The adoption of the EU Council Framework Decision on the European Arrest Warrant in 2002, stipulating minimum guarantees of the rights of accused and convicted persons during extradition, led to the resumption of the FCC’s control over the observance of human rights. Since the 1990s, the Constitutional Court has considered issues related to the procedure for and limits of the transfer of Germany’s sovereign powers to the European Union. These limits apply to decisions which cannot be made at the supranational level because they are governed by fundamental political and constitutional features, namely, the federal, legal and democratic nature of the German state. In modern legal discourse, these features are covered by the concept of constitutional identity. The Constitutional Court intends to decide whether the acts of EU institutions violate the constitutional identity of Germany until the Union has fulfilled its obligations to respect national identity provided by EU constituent treaties. Since 2019 the FCC has, on its own, evaluated EU legal acts for compliance with the EU Charter of Fundamental Rights. Many problematic issues have emerged as to the scope of the Charter and the FCC’s consolidation of its own position with the EU Court’s interpretation of the Charter in light of provisions of constitutional acts of other Member States and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, the desire of the German Constitutional Court to act as a full-fledged participant in this judicial dialogue should be supported.

Ten years after the entry into force of the “identity clause”, densified by the Lisbon Treaty (2009), we should reflect on its exact extent (Article 4, § 2 TEU). The principle of the respect of the national identities of Member States conveys that European political integration cannot annihilate national state’ minimum core of political and constitutional self-determination. My point is that, whatever the scholarly stance adopted, ‘national identity’ should be understood as a cluster-concept that assembles a myriad of identities, such as cultural, linguistic and social identities or political, or economic ones. ‘Constitutional identity’ is a legal concept open to many interpretations. The European Court of Justice (ECJ) endeavored to clarify it, without success. In other situations, the ECJ has plainly avoided the subject, preferring other routes of argumentation. Does ‘constitutional identity’ mean the specific constitutional traits of each state, such as having a written or unwritten constitution, being a republic or a monarchy, the system of government, the protection of a State’s official national language, and the extension of the right’s catalog? Or does it have something to do with the cultural context in which a constitution operates? As a given constitutional identity is fluid, it can never be fully acknowledged in the present time. In some sense, it is always partially revealed, and it can evolve. Since ‘constitutional identity’ captures the “core or fundamental elements or values of a particular member state’s constitutional order” or ‘the individuality or essence of an order”, we wonder: Is ‘constitutional identity’ a constitution inside the constitution and, therefore, immune to change?

This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).