Battleground or Meeting Point? Respect for National Identities in the European Union – Article 4(2) of the Treaty on European Union

Abstract:

The national identity clause has drawn significant attention lately and not without reason. Developments regarding this provision have given rise to concerns about whether Article 4(2) CTEU will have implications for the absolute primacy of EU law and thus its authority. This paper argues that Article 4(2) CTEU will play a valuable role in providing additional ground for further co-operation between national constitutional courts and the ECJ and provides the possibility for national constitutional courts in occasional situations to set aside EU law on constitutional identity grounds. This view is presented through a textual and contextual analysis of the provision, the attitudes of both national constitutional courts and the ECJ towards the issue, and lastly the theoretical framework of constitutional pluralism, particularly constitutionalism beyond the state.