Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause

Abstract:

Article 4(2) of the Treaty on the European Union (TEU), in its novel formulation provided by the Treaty of Lisbon, requires the Union to ‘respect Member States’ national identities, inherent in their fundamental structures, political and constitutional, including regional and local self-government’.

This article seeks to elucidate the meaning and the legal implications of the identity clause in its current wording. To this end, this work analyses the working documents of the Convention drafting the Treaty establishing a Constitution for Europe to determine the drafter’s intended role of the so-called ‘Christophersen clause’, the predecessor of Art 4(2) TEU.

It then focuses on the use of the identity clause by the European Court of Justice (ECJ) in the review of both EU and national measures. This article challenges the conventional assumption that the evident purpose of the clause is that of applying in exceptional cases of conflicts between European Union (EU) law and domestic constitutional law and explores the potential use of the clause in the ordinary functioning of EU law. Some normative recommendations will be put forward as to the identity clause potential use in safeguarding Member States’ cultural diversity, regulatory autonomy, and margin of appreciation.