The equality of the Member States and Article 4(2) TEU

Abstract

This chapter first lays out the inequality thesis by explaining how differences in national legal frameworks allow for a varying degree of direct or indirect participation by national courts in the European-level political process: when, how and to what degree national courts can engage is explained. The chapter then addresses the problems that ensue from the fact that some national courts are in a privileged position vis-à-vis the others. It is argued that such inequality is problematic from a political perspective: the national courts’ influence essentially usurps the Union’s political process; in effect, they can even end up hijacking it. Lastly, the chapter then turns to the normative basis of the inequality thesis: how according to Article 4(2) TEU, the ‘Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. Most of the literature on Article 4(2) TEU discusses the meaning of national identity for the primacy of EU law. Departing from this, this chapter presents a novel argument concerning the meaning of Article 4(2) TEU: the equality clause is there to guarantee horizontally the equality of the Member States vis-à-vis one another in relation to EU law and its uniform application, whereas the national identity clause is there to protect the Member States vertically from the European Union overstepping its competences.