What Is the European Union required to Respect under Article 4(2) TEU?: The Uniqueness Approach

Abstract

The meaning of the ‘national identity’ clause set out in Article 4(2) TEU has been subject to various interpretations. This article proposes that a new approach, ‘the uniqueness approach’, be used to determine what exactly the EU is required to respect under Article 4(2) TEU. The uniqueness approach entails examination of the following three criteria in order to determine whether a particular feature of a Member State can be regarded as being part of the national identity of that Member State: first whether that feature is unique in that no other Member State exhibits such a feature, second, whether that feature can be seen to be part of that Member State’s constitutional and political structures, and third, whether that feature is fundamental to those structures. Once these criteria have been satisfied the proportionality review of that feature in terms of its compatibility with primary or secondary EU law should be done away with. Part I of this article explains the essential components of the uniqueness approach. Part II focuses on the question of who should be the final authority on the interpretation and application of Article 4(2) TEU.