Constitutional identity is a topic of great importance for modern constitutional democracy. However, one could argue that its legal conceptualization from the perspective of European integration is still insufficiently analyzed beyond the identification of constitutional and/or national identity through different interpretations of Article 4(2) TEU.

The protection of national identity is a “mission impossible” without insisting on protecting its constitutional specifics. National identity is the second face of constitutional identity. Without a protected constitutional identity, there is no complete national identity and vice versa. Although no founding treaty of the EU mentions constitutional identity, it is found and confirmed in a broader axiological meaning in the national identity of each Member State of the Union. What is national identity if not part of the constitutional identity? Can we talk about the national identity of a country without it being partially or completely perceived through the prism of the continuity of the development of the constitutional identity of the country? The answer is “NO”.

The connection of the national with the constitutional identity is part of the practice of the EU Member States’ Constitutional courts that favor that relation construed as a natural course of societal, cultural, historical, and legal development.

The term “identity of the Constitution” was first mentioned by the Federal Constitutional Court of Germany (GFCC) in its decision on the Lisbon Treaty, although the Court did not give a specific description. The “identity of the Constitution” as a term differs from the “identity of the Federal Republic of Germany”, which, in turn, is practically equated with the sovereignty of the state. The GFCC has ruled that the content of Germany’s constitutional identity is in Article 23 (1), in the third sentence—the EU clause—and in Article 79 (3), the article on “eternity clauses” of the German Constitution. With the creation of the EU, apart from the apparent abolition of sovereign German statehood, the German Constitutional Court has reaffirmed only a few specific powers that belong to the national sovereign government and the sovereign people. These competencies are related to the “eternity clauses” where the “identity of the Constitution of the Federal Republic of Germany” is visible. In the 2014 OMT decision, the GFCC confirmed that despite the need for its compliance with EU law, the Court has the right to assess it from the aspect of respecting the identity of the Constitution. According to the Court, democracy as a constituent element of the identity of the Constitution and the national identity of Germany would be violated if the Parliament renounced budgetary autonomy. The GFCC recalled that the CJEU is obliged to ensure proportionate protection of national identity. (Another post on Constitutional Discourse regarding the GFCC’s decision can be accessed here).

In 2004, in connection with the EU Constitutional Treaty, the Spanish Constitutional Court emphasized that the Spanish state, more specifically the Spanish nation, reserves the “right to sovereignty”, and that state sovereign power can be limited only if EU law is compatible with its fundamental national foundations, that being the identity of the Spanish constitution. This doctrine was later confirmed in the Italian Melloni case, which brings us to Italy.

The Italian Constitutional Court used the term “constitutional identity” for the first time in its decision no. 24 of 2017, when it asked the CJEU to explain whether its action in the Taricco case left national courts with the power to disregard domestic legal norms even to the extent of disregarding the fundamental principle contained in the Constitution, the principle of legality. The Italian Constitutional Court had earlier in 2014 ruled that retroactive application of the statute of limitations was prohibited, even though in Italy it is part of substantive criminal law.

The Czech Constitutional Court (Pl. Ús 5/12, Slovak Pensions XVII judgement, January 31, 2012) has held that the rule laid down in Article 325 of the TFEU is applicable only where it is in accordance with the constitutional identity of the Member State where the assessment of such compliance emphasizing the sovereignty of the Czech Republic and portraying the EU Member States as “Masters of the Treaties”. The Czech Constitutional Court concluded that the “material substance” of the Constitution takes precedence over EU law. This finding empowers constitutional courts to assess the compatibility of EU law with national/constitutional identity. The position of the Czech Constitutional Court is more open to EU law but still has some similarities with the German interpretation. The Court has recognized the principle of the EU conformist interpretation of constitutional law, but only in the event of a conflict between EU law and the Czech Constitution—especially in the area of its material core, when it should prevail. The identification of the “material core” of the Czech Constitution comes to the fore not only in terms of respect for EU law but also in the part of the internal forum in declaring unconstitutionality with constitutional amendments.

The Hungarian Constitutional Court (32/2021. (XII. 30.) decision) has set two precise limits in the exercise of the conferred or jointly exercised powers with the EU. The first limit is the inviolability of Hungary’s sovereignty and the second is the inviolability of the country’s constitutional identity. The Constitutional Court considered that the CJEU should protect the constitutional identity of the member states on the principles of continuous cooperation, mutual respect, and equality of the EU member states. It is interesting to note that in Hungary an exhaustive list of values that are included in the constitutional identity of the country has not been established, but the following are mentioned as general values: the rights and freedoms of citizens, division of powers, republican character of the state, respect for the autonomy of public law, freedom of religion, principle of legality, parliamentarism, equality of all before the law, respect for the independence of the judiciary and respect for the rights of national minorities living in Hungary. These values are in fact universally accepted constitutional values.

The Polish Constitutional Tribunal, in its 2010 decision on the European Arrest Warrant, portrayed the EU as an international organization of sovereign states, emphasizing that the power deriving from the Polish constitutional identity could not be delegated, transferred, or alienated to the Union.

The question of constitutional identity becomes more complicated when viewed through the lens of the functioning of the EU and, in that sense, the position of the EU Court of Justice. Although Article 4 (2) of the EU Treaty does not contain the values that make up national identity, the fact is that the range of values is not limited with each EU member state having the right to decide which values are important to enter into the content of this principle.

The fact is that the views of national courts formulate the doctrine of constitutional identity based on the principle of state sovereignty. On the other hand, in contrast, the national identity contained in Article 4 (2) of the Treaty should be seen as a gradation of the basic principles that the multinational political community must respect.

The CJEU seems to accept the view that constitutional identity is part of the principle of subsidiarity and proportionality, whereas the closer the question is to the essence of the constitutional identity of the member states the greater the margin of discretion becomes. It seems that the practice of the CJEU, which must take into account the views of the constitutional courts of the Member States, is crucial for understanding the relations between constitutional and national identity for both the Member States of the Union and the EU candidate countries.

Both the terms “constitutional identity” and “national identity” refer to the same obligation to the EU institutions, which is an obligation to respect the core of the constitutional values of each Member State individually. On the other hand, it is a fact that the approach of the CJEU and of the national courts on this issue is different.

“National identity” is a general principle of the EU law derived from the EU Treaty and the jurisprudence of the CJEU. Article 4 (2) of the EU Treaty states that the Union shall respect the equality of Member States as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including territorial integrity of the State, maintaining law and order, safeguarding national security. In particular, national security remains the sole responsibility of each Member State which have the right to choose their state model of organization and government, model of democracy, state symbols, state goals, protection of human dignity, fundamental rights and the rule of law. The list of values covered by the principle of national identity is open, and it is up to the Member States to decide which falls under the protection of their national identity.

The CJEU assesses only the significance of national identity under EU law. EU law and the CJEU could not demand primacy and supremacy if the measure is not covered by the competencies that have been explicitly transferred to the EU by the Member States with the founding treaties. This means that the constitutional identity is still preserved by the nation-states and their constitutional courts and is not transferred to the EU.

Prof. Tanja Karakamisheva-Jovanovska is a Full Professor at the Faculty of Law “Iustinianus Primus”, Skopje, on the Scientific Department for Constitutional Law and Political System and Former Macedonian Member of the Venice Commission, co-author of relevant Commission’s opinions. She is an author of more than 250 papers published in domestic and international scientific journals, thematic proceedings, a collection of papers, etc. She has participated in more than fifty seminars, world congresses, and international conferences around the world with papers, policy papers, or studies. She is the author of 13 textbooks (2 written in English), four scientific-popular books, and five monographs. In 2023 she was a visiting professor at the Central European Academy in Budapest, Doctoral studies, and in 2018 she was a visiting professor at the Faculty of Law and Administration in Katowice, Poland.