The Rise of an Ethnocultural Constitutional Identity in the Jurisprudence of the East Central European Courts

Abstract

The recent trend in East Central European jurisprudence is that courts apply an ethnocultural understanding of identity, thereby putting European integration in peril. Although the EU is clearly committed to shared values and principles, Article 4(2) of the Treaty on European Union emphasizes that “the Union shall respect the national identities of the Member States.” Due to the recent migration flow in Europe, the Member States are currently attempting to (re)define themselves and offer a legal definition of identity. East Central European Member States, by labelling ethnocultural national identity as constitutional identity, apply Article 4(2) as a means of derogating from some of their obligations under EU law. Despite the vast literature available on national identity and its role in EU law, little attention has been paid to the recently emerging trend of judicial reinvention of identity in East Central Europe. This is what this Article offers. It focuses on the Visegrád Group, which consists of the Czech Republic, Hungary, Poland, and Slovakia. The Visegrád countries (V4) are united in their views on rejecting migrant relocation quotas in the EU and define their exclusionary constitutional identities accordingly. The main subject of the Article is the relevant case law of the V4 constitutional courts. These courts have the authoritative role in enforcing nation-state policies based upon ethnocultural considerations. The Article provides a comparative-analytical description of the judicial interpretations of constitutional identity in these countries based on which we can better understand the recent East Central European trend of disintegration.