Abstract
The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.
Highlights
In a time when identity politics loom large,1 and at a time when parts of Europe are experiencing ‘rule of law backsliding’,2 a fundamental legal question in need of clarification is that of constitutional identity
This article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II
It should enshrine some fundamental tenets of national identity and hallmarks of a country’s legal order. It is about questions such as: Who are we as a political community? What are the essential characteristics of our legal system? In the multilevel legal system of the European Union (EU), it is supposed to be a realm protected and respected according to Article 4(2) of the Treaty on European Union (TEU) – a norm that should take centre-stage in this debate, but which has not been elaborated on by the Court of Justice of the European Union (CJEU) to date
Summary
In a time when identity politics loom large, and at a time when parts of Europe are experiencing ‘rule of law backsliding’,2 a fundamental legal question in need of clarification is that of constitutional identity. The recent wave of case law that can be described as the ‘Taricco saga’ was concluded with the judgment of the CJEU of December 2017 in MAS & MB (hereinafter referred to as Taricco II).8 It would have been a welcome opportunity to clarify the hard outer limits of this fundamental concept of constitutional identity as enshrined in Article 4(2) TEU. This was not the case, as the CJEU managed to argue its way out through smart legal tactics and timing. In the main substantive part, the Taricco II judgment of the CJEU is analysed in detail, in which we point out the legal tactics used to avoid open conflict, offer explanations why the Court did so, and argue why it would have been a welcome opportunity to seize for clarifying the outer limits of constitutional identity
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