The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of theGauweilerCase

Abstract

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.