The policies of sovereignty protection and constitutional identity in Europe have recently been at the forefront of European academia and discourse, and several constitutional courts of EU Member States have been active over the past years. In their jurisprudence, they pay serious attention to the importance of the national and constitutional identity and its protection, often on an interpretive track that collides with the interpretation of EU institutions, chief among them the CJEU. On the other hand, the Constitutional Court of North Macedonia[i] has been refusing to delve into the identity questions, despite all those ‘identity waivers’ that North Macedonia opted into during negotiations, marking its path towards accession to the EU.

The Importance of Constitutional Identity within EU Member States

The EU concept of protection of constitutional identity has been evolving over the past decades, mainly influenced by the Federal Constitutional Court of Germany’s jurisprudence. In some of its landmark decisions, the Karlsruhe court established the roots of the protection of the constitutional identity. For example, the term “identity of the constitution” was coined by the German Constitutional Court. The Court has many landmark decisions in its jurisprudence, which are of high importance when it comes to the protection of constitutional identity. The most important decisions in this regard are Solange I and II, Maastricht, Lisbon, PSPP, etc. Other European constitutional courts, such as the Italian, Spanish, Polish, and Hungarian, have also developed this practice. The Italian Constitutional Court, for example, in its practice has established the doctrine of “counter-limits”, according to which, despite the primacy of EU law, the Court reserves the right to review the compliance of EU law with the most fundamental values of the national constitution, such as the fundamental rights of its citizens.

Briefly, the main point of the concept of the protection of the constitutional identity is that the EU has to respect the most fundamental principles of the national constitution, which constitute the state’s constitutional identity. This stance is based on Article 4(2) of the Treaty of the European Union, according to which, the Union shall respect the national identities of the Member States. Scholars usually define constitutional identity as a legal manifestation of national identity, while national constitutional courts, through their jurisprudence, point out which constitutional provisions and principles are understood to be part of the respective countries’ constitutional identity, inviolable by EU integration. But the question is, what are these? Though every national constitutional court has its own approach, there are similarities between them. Typically, the fundamental constitutional principles shared by democratic countries are consensually understood to pertain to the concept of constitutional identity. For example, the German Constitutional Court in its Lisbon decision, has pointed out that democracy, human dignity, the rule of law, etc., are part of the constitutional identity of the country. The Hungarian Constitutional Court, in its Decision 32/2021. (XII. 20.), has enumerated several values that are part of the constitutional identity, such as territorial unity, population, form of government, etc. In conclusion, the main idea is that every national state has strictly protected some values in its constitution, and they cannot be violated in the process of harmonization of the national law with EU law.

The Constitutional Court’s “Reaction “ to Emerging Identity Disputes

North Macedonia has established its Constitutional Court under the legal regime of Socialist Yugoslavia, but it was reformed with the first democratic Constitution of 1991. However, it is worth mentioning that the constitutional provisions are often criticized by scholars. One weakness is identified under Article 113, according to which the work of the Court is regulated by an act adopted by the Court, or in other words, there is no possibility for passing a bill in the Parliament to regulate the Court’s activity. This, and the lack of clear professional criteria on who can be elected to the bench in both the Constitution and the Court’s Act, has negatively affected the Court’s depth in formulating a clear position on this issue. The Court often “skips” its obligation to be a protector of the Macedonian Constitution, and usually delays the decisions relevant to sensitive topics, such as Macedonian national and constitutional identity in light of EU accession negotiations.

The Court hasn’t followed the examples of other EU national constitutional courts, and it has never defined the scope of Macedonian constitutional identity. It has not used the term in its jurisprudence either. Another important weakness in this sense is the stance of the Court on international treaties (which EU Treaties are). The Constitution isn’t clear whether the Court can or cannot assess their constitutionality, but it have not yet resolved the issue through self-regulation either. Treaties signed and ratified by the country are positioned above the national legal acts, but there is no strict constitutional provision that would give primacy to them over the Constitution, which means that they have to be harmonized with the constitutional provisions. Article 110 of the Constitution, which enumerates the Court’s competences, does not directly mention international treaties. As of 2025, the Court has changed its stance on the international treaties twice: in 1996, in its decision No. 230/1996, the Court declared itself incompetent to assess the constitutionality of an international treaty. In 2001, this practice was changed, and the Court nullified an international agreement, claiming it was unconstitutional (decision No. 140/2001). But, in 2005 (in its Decision No. 150/2002), the Court once again declared itself incompetent.

This lack of a firm stance on international treaty law may also be one of the main reasons that prevent the Constitutional Court from becoming a strong protector of constitutional identity. There is, however, evidence to suggest that the Court might avoid these debates deliberately. One such example is that of the so-called Prespa Agreement, which was signed in 2018, with its constitutionality subsequently challenged before the Constitutional Court. The Prespa Agreement was signed and ratified as a solution for the name dispute with Greece, which was vetoing Macedonia’s accession to the EU[i], and it obliged the then-called Republic of Macedonia to change its constitutional name into “Republic of North Macedonia”.

Despite seriously influencing and re-shaping the Macedonian national and constitutional identity, the implementation of the Prespa Agreement was also followed by many legal irregularities, contributing to the vehement contestation of the Agreement before the Court.

As the legal irregularities of the Prespa Agreement and its implementation are numerous, I would only mention a few. First, the Agreement was signed by the Minister for Foreign Affairs, and not by the President. Article 119 of the Constitution stipulates that the President has the competence to sign international treaties. It is worth noting that the then-president, Gjorgje Ivanov, was a strong opponent of the Agreement. Another issue is the consultative referendum organized to gauge support for the Agreement. The Agreement was signed on June 17, 2018, and with it, the country obliged itself to ratify and implement it. However, the referendum was organized three months after signing the Agreement. The consultative nature of the referendum is contradictory, since the decision for the implementation of the Agreement was already made, and the Agreement signed. One of the many complaints filed to the Constitutional Court was disputing the constitutionality of the decision to organize a consultative referendum. The Court indicated that it would rule on this issue before the date of the referendum, which did not happen in the end. The referendum was unsuccessful (with a turnout of 37%), and the Constitution stipulates in Article 73 that a successful referendum should have a voter turnout of more than half of the total number of voters.

The Court delayed its decision until 2023, rendering the ruling irrelevant, since the Agreement was implemented in 2019, when the constitutional name of the country was changed. In its decision, the Court once again pointed out that it is not competent to assess the constitutionality of the international treaties. This is not the only case in which the Court acts the same way and delays decisions. In 2018, a controversial law was passed that proclaimed the Albanian language as the second official language in the whole country. It was immediately disputed before the Court, but the Court still hasn’t decided on it, while the law has already been enforced. It can be stated that the Constitutional Court is quite inactive when it comes to the protection of those elements of national constitutional identity that have previously been safeguarded or claimed by other such European courts or through academic consensus.

Conclusion

Constitutional identity remains very important despite the flow of EU integration negotiations, especially for the constitutional courts in Europe, those inside the EU, and those on the inside track. EU constitutional courts, such as Germany’s, have strongly protected constitutional identity in the past, often taking different positions than the EU institutions, especially the Court of Justice. Many national constitutional courts have stated that the core of their constitutions (along with constitutional identity built around those) is inviolable, and that the process of harmonization of national laws with EU law shall respect the constitutional identity.

However, the situation with the Constitutional Court of North Macedonia is totally different. In the midst of a variety of identity disputes, the country still faces “identity-related conflicts “ with Greece and Bulgaria. These disputes affected the country’s European perspective, as North Macedonia was vetoed in its EU accession process, and the reasons for this veto are totally unrelated to the so-called Copenhagen criteria, but are connected to the historical ambitions and interpretations of neighboring countries. As Professor Tanja Karakamisheva-Jovanovska put it: “Examining the negotiation and membership criteria, it’s clear that there are no EU criteria related to changes of the national identity, historical and linguistic features of a nation and of a country. But Macedonia had an obligation to change its constitutional name, under the Greek political pressure, and to make corrections in the Macedonian national identity according to Bulgaria’s requirements should the country want to continue its European accession process. “

The government of North Macedonia, compromising on the use of the country’s name as well, has implemented some of the requests of Greece and Bulgaria as EU member states, which – I would argue – is in serious breach of Macedonian national and constitutional identity, as both Greece and Bulgaria conditioned the unblocking of the EU integration process on requests for constitutional changes in the Macedonian constitution, that are directly related to the nation’s identity – such as the change of the name, the historical disputes of the existence of the separate Macedonian nation imposed by Bulgaria, etc.

The Constitutional Court did not react at all and tried to avoid the responsibility to protect Macedonian constitutional identity. In other words, the Court does not follow the example of other national constitutional courts in Europe with respect to setting limits to the inviolability of the Macedonian constitutional identity. Knowing this, it is understandable that the Court should be seriously reformed, starting from the constitutional provisions that regulate its work. Part IV of the Constitution, which regulates the work of the Constitutional Court, should be amended, at least in the following provisions: Article 109 should be amended, and precise criteria for the election of judges should be stipulated, instead of the current formulation “distinguished lawyers “, which is imprecise and unclear and should be brought in line with European standards; Article 110, in which the Court’s competences are enumerated should be amended, and the competence to assess the constitutionality of international agreements should be introduced; Article 113 should be changed, and a possibility for adopting a law on the functioning of the constitutional court, in which all the questions related to the Court (its competences, the procedures, the election of judges, etc.) will be elaborated in detail, should be permitted. These reforms are the bare minimum for the better functioning of the Court.

Bojan Petrovski is a PhD candidate at the Deák Ferenc Doctoral School in Law at the University of Miskolc, and a junior scientific researcher at the Central European Academy in Budapest, Hungary. He graduated from his bachelor studies at the Faculty of Law, University “St. Kliment Ohridski” in Bitola, and finished his Master of Law studies in constitutional law at the Faculty of Law “Iustinianus Primus” in Skopje, Macedonia. He has also finished LL.M. studies in human rights and the rule of law at the University of Miskolc. He has participated in several scientific conferences and has authored several scientific papers. He is researching topics related to constitutional law, with a particular focus on sovereignty and national and constitutional identity.

[i] The author of this article disapproves of the name “North Macedonia”, which is the new name of the Republic of Macedonia, since the so-called Prespa Agreement was implemented.