This Article consists of five sections. In the first section, it describes why identity questions matter, particularly in Europe. In the second section, the Article tackles the issue of multiple structural ambiguities affecting the concept of constitutional identity in the European constitutional vocabulary. In the third section, the Article explores trends concerning the use of constitutional identity in the European legal discourse and practice, including the development of alternative interpretations and applications of the notion of constitutional identities in the Member States. The fourth section of the Article combines the analytical accounts outlined in the second section with the trends identified in the third section, contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly. The final section of this Article draws some conclusions.
Identity is a key, but vague, ambiguous and polysemic concept of public law. In EU law, the concept underwent a process of legalization: it emerged as a political clause in the Treaty of Maastricht and gained constitutional meaning after the Treaty of Lisbon. The article traces this process of legalization, arguing that even though the constitutionalization of the identity clause in EU law was primarily addressed to the Court of Justice of the EU, a major role in this process has been played by national courts. The article, however, claims that the process of transformation of the identity clause is not over, and that currently the concept is being subject to abusive and dangerous manipulations. The article supports a comprehensive reading of the identity clause in EU law within the broader context of EU fundamental principles. In particular, the article claims that a tight connection of the identity clause should be kept with the democratic mandate of the EU. This connection emerged very clearly in the Maastricht formulation of the Treaty on the European Union but is still now a viable remedy to reject Member States’ appeals to protect unconstitutional constitutional identities.
constitutional identity, primacy, ultra vires, identity clause, abuse
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