Constitutional Identity Research Articles

The Concept of Constitutional Identity as a Substantive Expression of the Principle of Subsidiarity

The introduction of the subsidiarity principle by the Maastricht Treaty was intended to strike a balance between the Member States and the supranational level in terms of non-exclusive competences. However, the principle of subsidiarity in the current EU structure is Janus-faced: although it was theoretically included in the founding treaty to protect the lower levels, its modus operandi is actually aimed at demonstrating the supranational level’s capacity to act. Perhaps this is why the enshrinement of the subsidiarity principle in the Treaty has not lived up to expectations, and the relevant Treaty provisions have largely remained dead letters. At the same time, the need represented by the principle of subsidiarity, namely the protection of the autonomy of the Member States, remained present in European integration, which finally emerged in the concept of constitutional identity, linked to the redefined identity clause after the Lisbon Treaty. In this sense, the identity clause in Article 4(2) TEU has become the legal device or standard that is able to transfer the constitutional needs of the Member States to the level of EU law and provide the possibility for their recognition at EU level. For this to work, a cooperative approach by national constitutional courts seems essential.

From sovereignty to social liberalism: Two new dimensions of constitutional identity in Ireland

From sovereignty to social liberalism: Two new dimensions of constitutional identity in Ireland

Use, Misuse, and Abuse of Constitutional Identity in Europe

Use, Misuse, and Abuse of Constitutional Identity in Europe

The influence of Serbia's historical constitutions on its modern constitutional identity: 30 years since the return of the liberal-democratic constitutionality

The influence of Serbia's historical constitutions on its modern constitutional identity: 30 years since the return of the liberal-democratic constitutionality

Constitutional projects of the twentieth century The Constitution of the Union of Soviet Republics of Europe and Asia

The study of constitutional projects, as part of the history of Russian statehood, is especially relevant in connection with the formation of institutions of modern domestic constitutionalism. The impetus for the development of this process was received by the adoption of constitutional amendments in 2020. The study of constitutional projects is due to the fact that they contain aspects of theoretical constitutionalism, which is formed at each historical stage of the development of the state and society. The article analyzes the draft Constitution of the Union of Soviet Republics of Europe and Asia, which reflected the contradictions of one of the turning points in the modern history of Russia. Considering this project as part of the national history of state-building, its value and influence on the Constitution of the Russian Federation are emphasized, the formation of the Russian constitutional identity

Report on the International Scientific Conference “Theoretical and practical aspects of constitutional identity”, 13 December 2022

Report on the International Scientific Conference “Theoretical and practical aspects of constitutional identity”, 13 December 2022

Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

In the aftermath of independence, African states for the most part opted for the nation-state model inspired by their colonial masters. Consequently, the constitutionalism of the newly independent African states emphasised national unity, an absolute obsession of state leaders, while demonising ethnicity, when it was not simply forgotten. Presented as one of the major causes of the state crisis in Africa, the liberal nation-state model has proven incompatible with African composite societies. Hence the imperative need for African states to reconcile the organisation and functioning of the state with their own values, and thus forge a typically African constitutional identity. The revival of constitutionalism integrates this tendency to appropriate African values, despite the criticisms of this option. The role given to ethnicity, a central element of African society, is symptomatic of this trend. The ethnic group is gradually emerging from its lethargy to occupy an increasingly important place and punctuate the political and institutional life of the state. The principle of equality is softened by the mechanisms tending to favour some people to ensure their representation in state institutions. The principle of the indivisibility of the state gives way to the formation of a ‘Republic of lands and territories’ with overlapping citizenships, where the sons and daughters of the soil enjoy comparatively more rights and privileges than any other nationals from other origins. Finally, as a vehicle carrying traditional values, customary law is gradually recognised and constitutionally protected.

СИНЕРГЕТИКА ПЕРЕХОДНОГО КРИЗИСА И ФЕНОМЕН МАЛОЙ КОНСТИТУЦИИ В ПЕРИОД РАСПАДА СССР / SYNERGY OF THE TRANSITIONAL CRISIS AND THE PHENOMENON OF THE “SMALL CONSTITUTION” IN THE PERIOD OF THE COLLAPSE OF THE USSR

In this work, the author examines the main prerequisites for the development of the political and legal crisis during the collapse of the USSR, identifies and analyzes the general patterns of state and legal development of law in the transitional period in the post-Soviet space, and in particular, the features of the struggle of the old and new legal orders. The purpose of the work is to identify the axiological significance of the preconstitutional attitudes of the transition period in the process of building independent statehood in the post-Soviet republics, the constitutional identity of which is expressed in declarations of independence, as fundamental political-legal acts of state-forming significance. The author assigns a special role to the declarations of independence of the post-Soviet republics, presenting them as "small Constitutions" of the transitional period, and also assessing their place and role in the system of sources of constitutional law in the light of their doctrinal characteristics, as well as in the light of case law of constitutional courts of some post-Soviet states. The author, besides classical methods, also used such methods of scientific knowledge as comparative-legal and historical-legal methods.

The European Union in Defence of the Rule of Law

The rule of law and the other values contained in Art 2 Treaty on European Union (Art 2 TEU) comprise the constitutional identity of the European Union (Union). These values form part of the Union’s very foundation. Art 3(1) and (6) TEU, in conjunction with Art 2 TEU, declare the Union’s aim to promote and pursue the rule of law as one of its core values. These provisions indicate that the rule of law is not only a constitutional principle but gives the Union a constitutional mandate to shape its policies accordingly in order to create an enabling ecosystem for the rule of law in the Member States. Under Art 2, 3, 7 and 13 TEU the Union as a community of values must counter internal threats to the rule of law, but it must also take positive legal action to strengthen and consolidate the rule of law in the Member States by making use of its sectoral law-making competences. Proactively, the rule of law must be implemented and specified through Union secondary law and made the yardstick for legislative, administrative and judicial activity in the Member States.

Temeljni Ugovor između Crne Gore i Srpske pravoslavne crkve - izazov i/ili preobražaj shvatanja načela sekularnosti u Crnoj Gori?

The author analyzes the interaction between the signed Fundamental Agreement between Montenegro and the Serbian Orthodox Church and the principle of secularity proclaimed in the Montenegrin Constitution. After a brief outlook on comparative European solutions, the author stands for the position that Montenegro belongs to systems in which there is (still) a strict type of separation, as opposed to the increasingly present and preferable model of cooperative separation. Starting from the socio-political circumstances that immediately preceded the moment of signing, the author puts forward a thesis according to which, although the amended Law on Freedom of Religion already indicates something like that, the Fundamental Agreement can be the turning point in the evolution of the understanding of the relationship between the state and the church in Montenegro, as a relationship that should be based on mutual cooperation and non-excludability. This thesis attempts to be proven both through the presentation of views on the legal nature of the Fundamental Agreement, as a general act, but not a classic by-law, and the place it has or should have in the hierarchy of legal acts due to its aforementioned sui generis nature, as well as through the analysis of the content of the Fundamental Agreement, i.e. parts of the Preamble and provisions on guaranteeing the public powers of the SPC in the first place. Finally, the desired evolution of the constitutional relationship between the state and the church in Montenegro is seen through the prism of a partial reshaping of the constitutional identity, in which the Constitutional Court of Montenegro can also play a significant role, if accepts to decide on the submitted initiative for the judical review of the Fundamental Agreement.

SOME OF THE MOST IMPORTANT RULINGS OF THE CONSTITUTIONAL COURT OF REPUBLIC OF KOSOVO

Almost all countries with liberal democracies have established specialized courts whose primary function and paramount role fulfi l an extremely important role in the protection of human rights, interpretation and protection of the constitution as well as defi ning and promoting important principles such as the separationof powers, rule of law and the protection of minorities and other constitutional values. Constitutional courts utilizing case law and precedent have played pivotal roles in determining the constitutional identities of theirrespective states. Since its establishment, The Constitutional Court of the Republic of Kosovo(“CCK”or “TheCourt”) has been very active in its decision-making and has greatly infl uenced the defi nition and cultivationof the constitutional identity of Kosovo. Its decisions have defi ned important constitutional frameworks suchas the protection of human rights, protection of the rights of national minorities, separation of powers andunity of the state and many other important principles. It can be said that, in general, the Court has been theguardian of the Constitution and constitutional democracy, fulfi lling the main purpose of its establishment.This paper will address the jurisdiction and organization of the Constitutional Court of Kosovo, and some ofthe important decisions which have undoubtedly played an important role in determining the constitutionalidentity of the country.

Zasada pierwszeństwa prawa Unii Europejskiej wczoraj i dziś

The principle of the primacy of European Union law is one of the most important and, at the same time, the most controversial principles of this law. The jurisprudence of the Court of Justice pointing to the absolute primacy of EU law, even over national norms of constitutional character, is not unconditionally accepted by the Member States. They are challenged in particular by constitutional courts, which want to retain the status of a last word court, reserving the right to assess the constitutionality of EU law at least in terms of fundamental rights, acting within the limits of competences conferred in the Treaties and the protection of fundamental constitutional identity. Recently, there are more and more judgments of constitutional courts that refuse to apply EU law, and the allegations against the priority principle are often financial or political. Denying the principle of priority, which is an exception, as in the case of the Czech, German or Danish, in some cases, especially Poland, becomes a rule that allows, under the misuse of constitutional identity, to lower the standard of legal protection resulting from EU regulations.

Importance of the Concept of Constitutional Identity for Ensuring European Union Law in Lithuania

This paper examines issues related to the significance of the concept of constitutional identity, which has emerged in the jurisprudence of the Lithuanian Constitutional Court, and its impact on ensuring European Union law in Lithuania. This concept, which also unites the principle of geopolitical orientation, of which membership in the European Union is an integral part, should contribute to guarantee a balance between the legal systems, which is also significant for ensuring EU law in Lithuania.

Climate Change, Energy Transition, and Constitutional Identity

AbstractThrough its potential to contribute to mass suffering, economic disruption, and social unrest, climate change poses a security threat to the constitutional identities of states (as democratic, autocratic, or hybrid regimes). This paper proposes a conceptual framework of mediated causality for climatic impacts on constitutional identity and engages in novel theory-building for one mediating vector of change: the post-fossil energy transition. Theories of the “oil curse” and of “carbon democracy” are compared and critiqued for their contributions to understanding the potential impacts of decarbonized energy systems on democracy. Two counterintuitive conclusions emerge. First, transitioning away from petroleum may not result in increased democratization, as the oil curse implies. Second, post-fossil energy systems are unlikely to become structurally decentralized, as advocates of “energy democracy” suppose, and may even need to remain centralized in order for popular mobilization around energy to help maintain or reinvigorate democratic rights.

Constitutional identity in the jurisprudence of the Court of Justice of the European Union

AbstractCourt rulings and publications on constitutional identity have spread in a sort of viral way since the entry into force of the Lisbon Treaty in 2009. Accordingly, many scholars analyse the possible sources of the term and the risks associated with its use, including the fact that opponents of constitutional democracy can use it as a great weapon, as there is no objective standard in terms of its content. In this regard two different positions can be distinguished concerning the function of the constitutional identity clause and the determination of the content elements of the constitutional identity. The first perspective looks at the notion of identity as a manifestation of Euroscepticism, according to which the identity clause is in fact a possible form of derogation under obligations deriving from European integration. In contrast, the second perspective leads to a cooperative interpretation of the concept of identity, if you like, an integration-friendly dissolution of the concept of sovereignty in a sort of post-Westphalian meaning of identity, which can be linked to the concept of ‘unity in diversity’. Accordingly, Article 4 (2) TEU allows for the articulation of individual Member State specificities and establishes a mechanism in which different Member State and supranational perspectives can be harmoniously aligned with each other. This paper looks at Article 4 (2) TEU as an embodiment of the idea of ‘cooperative constitutionalism’ having the function of a ‘valve’ and presents all the relevant cases where constitutional identity as a legal standard has been raised in front of the Court of Justice of the European Union up to 2020.

The impact of EU identity on constitutional identities •

AbstractSince the Maastricht Treaty, two questions remain: what is the EU, and is there such as thing as an EU identity? Because of its specific nature, and in view of the political accession criteria, it seems there is an EU political identity. Consequently, the purpose of this article is to evaluate whether this EU political identity has had an impact on Member States' constitutional identity: because they were the latest countries to accede to the EU, but also because they were under a specific monitoring process, Bulgaria and Romania are the best examples of an EU influence, but only of a limited one.

The Hungarian sword of constitutional identity

AbstractIn its ‘refugee quota decision’ of 2016 the Hungarian Constitutional Court (HCC) ‘invented’ its competences of ultra vires, sovereignty and constitutional identity controls. The sword of constitutional identity (CI) has been forged against foreign – first of all – EU law. In the development of the new concept the interplay between the Government, the Government-dominated parliament and the Constitutional Court loyal to the Government seems to be evident. The textual analysis of the relevant HCC's decisions proves that the Hungarian Constitutional identity (HCI) contains legal acts in force – including the Fundamental Law (constitution) and the Founding treaties of the EU -, legal acts ‘not in force but valid’ and activities related to the fight for independence of the Hungarian State.As far as the nature of the HCI is concerned, the article demonstrates the strong relationship with sovereignty control, and the ‘historical constitution’ and emphasises the HCC's statement according to which the CI is not created by the constitution, it is merely acknowledges it.Given the large number of elements identified as part of the HCI, its openness to the inclusion of further elements, and the questionable nature of the HCI, the author submits that the concept is inappropriate for any meaningful constitutional review.The HCC – at least until now – despite being invited to do so, has refused to use the sword against EU secondary law and the judgment of the European Court of Justice, and avoided overt constitutional conflict. However, this does not mean that the HCC is ready to enter into sincere dialogue with the court in Luxembourg.

Has constitutional pluralism ever been tried out? •

AbstractConstitutional identity has been viewed with suspicion by a number of orthodox EU law scholars. That suspicion is understandable in the light of the German approach to the issue of constitutional conflicts. The Bundesverfassungsgericht, which often sets the tone among constitutional courts in Europe, indeed tends to solve those conflicts on the sole basis of the Basic Law, with little consideration for EU law, thereby discrediting constitutional identity. This paper aims to show, against a background of comprehensive constitutional pluralism, that the German approach is not exclusive of more reasonable approaches by other constitutional courts, as witnessed in relation to the French and the Italian courts. It is on the basis of a pluralist reading of Article 4(2) TEU, as the EU law provision on the basis of which certain core elements of the national constitutions can be reasonably accommodated, that those constitutional courts have either devised constitutional identity or engaged with the CJEU within a shared constitutional framework that defines both the argumentative and substantive limits of constitutional identity. In so doing, far from representing a failure of constitutional pluralism, those constitutional courts stretch the latter to its ultimate limits in a way that has not yet been experienced.

Constitutional identity as a normative constitutional concept

AbstractAlthough constitutional identity is nowadays invoked by European states primarily against the extension of the powers of the EU institutions, it can also be understood as a substantive concept of national constitutional law. This article deals with constitutional identity as a normative constitutional concept. In this respect, the problem is the same as that which arises in the relationship between EU law and domestic law: namely, its fundamental indeterminacy and the possible arbitrariness of its application. The author argues that, therefore, constitutional identity can only be plausibly invoked if satisfactory answers can be given to the questions of exactly whose identity it is, what its source is, who and how its content may define, and what the constitutional function of this category is. The second part of the study examines the Hungarian constitutional identity according to this analytical framework, and concludes that, although its subject is the Fundamental Law, its definition, content and constitutional function are unclear and contradictory. Consequently, the current concept of constitutional identity in Hungary raises a number of problems for which no plausible answers have yet been found, and it is highly doubtful whether the doctrinal and practical difficulties related to it can be resolved at all.

Constitutional identity, a new legal Babel in Europe

AbstractConstitutional identity appears as an increasingly frequent argument in the case law of constitutional courts in Europe. For many authors, it is a way to initiate dialogue with the European Union on equal terms. In this article, we argue that dialogue is not always a source of harmony, because the terms of the interaction are not exactly the same in Luxembourg and in the member states of the European Union. The Court of Justice of the European Union interprets the national identity of the member states in a way that is not always similar to the content given by the States to their constitutional identity. As a consequence, constitutional identity may allow the Member States to strengthen the specificity of their constitutional rules and, in turn, weaken the unity of European constitutionalism. Far from being an Esperanto, constitutional identity rather appears as the new legal Babel in Europe.