Abstract
This essay aims to analyze how national constitutional/supreme Courts address the evolution of the European integration process when this latter touches upon fundamental constitutional elements of the EU Member States. More specifically, the paper explores the recent case law concerning the issue of constitutional identity conflicts, in order to show the common arguments underpinning different European constitutional/supreme Courts' jurisprudence. From a comparative point of view, the analysis highlights the emergence of a growing front of constitutional resistance whose meaning for the future of European constitutionalism is still unclear. At the same time, the study seeks to examine the patterns of constitutional resistance within the European integration process in the perspective of a mutual interaction between Courts.
Highlights
It is hard to deny that nowadays the European integration project and, in particular, the principle of EU law primacy are navigating turbulent waters
As the legal scholarship has extensively pointed out,[2] this momentous decision of the Bundesverfassungsgericht ( BVerfG) is liable to mark a turning point for EU constitutionalism: it poses a serious threat to the safeguard of the unity and integrity of the EU legal order, by setting a dangerous precedent that overwhelms the s.c. “dialogic” relationships between the Court of Justice of the European Union (CJEU) and national constitutional/supreme Courts
The BVerfG added that “the Court of Justice of the European Union treats the protection of national identity, which is required according to Art. 4 sec. 2 sentence 1 Treaty on European Union (TEU), as a ‘legitimate aim’ which must be taken into account when legitimate interests are balanced against the rights conferred by Union law [...]
Summary
It is hard to deny that nowadays the European integration project and, in particular, the principle of EU law primacy are navigating turbulent waters. If one can read this article as a clear limit to the expansive attitude of the European Union system, some legal scholars have properly observed that it can be interpreted in another way: absorbing the national identity’s protection in the very fabric of the EU Treaties could end up in transposing its control at the EU level This latter reading could be confirmed by the direction undertaken in the EU case law regarding the common constitutional traditions. See Art. 6(3) TEU when it states that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law” This issue is at stake in one of the case studies we are going to deal with in our analysis. While an ultra vires act always implies a defect in the act from the competence’s point of view and, a possible declaration concerning the validity and/or the application of European law in all other Member States, a violation of constitutional identity works in a totally different way: as a matter of fact, this scrutiny is based on a “bipolar relationship” between one Member State and the EU and rests inevitably on a “joint effort of national and European courts”.20
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