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23 - Unconstitutional Constitutional Identities in The European Union

from Part IV - Emerging Trends

Published online by Cambridge University Press:  14 March 2024

Ran Hirschl
Affiliation:
University of Toronto
Yaniv Roznai
Affiliation:
Reichman University, Israel
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Summary

The concept of “constitutional identity” in the context of the EU has evolved significantly over the years, leading to complex debates and challenges. This chapter explores the historical trajectory of constitutional identity in the EU, from its early emergence in response to concerns about sovereignty to its current state of political and legal contestation. The chapter highlights that while constitutional identity is a global concept, the European experience exhibits distinct characteristics. Two noteworthy factors contributing to this distinctiveness are Europe’s legal integration and the inclusion of an identity clause in EU law (Article 4(2) TEU), a unique feature in supranational constitutionalism. The chapter argues against abandoning the concept of constitutional identity due to its recent abuses, asserting that it is a legally recognized notion within EU law. Instead, the chapter claims the focus should be on identifying and addressing abuses while acknowledging the concept’s importance in balancing competing fundamental principles within the EU legal framework. It concludes by emphasizing the need to distinguish between legitimate uses of constitutional identity and its abusive applications, advocating for the protection of constitutional identities that align with EU core principles and calling for the development of a European constitutional identity as a complementary concept.

Type
Chapter
Information
Deciphering the Genome of Constitutionalism
The Foundations and Future of Constitutional Identity
, pp. 300 - 311
Publisher: Cambridge University Press
Print publication year: 2024

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References

Bartole, Sergio. 2020. The Internationalisation of Constitutional Law: A View from the Venice Commission. London: Bloomsbury Publishing.CrossRefGoogle Scholar
Calliess, Christian. 2019. “Constitutional Identity in Germany. One for Three or Three in One?In Constitutional Identity in a Europe of Multilevel Constitutionalism, edited by Calliess, Christian and van der Schyff, Gerhard, 153. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Cartabia, Marta. 1990. “The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community.” Michigan Journal of International Law 12 (1): 174203.Google Scholar
The Chancellery of the Prime Minister of Poland, White Paper on the Reform of the Polish Judiciary, Warsaw, 7 March 2018, para. 177. Available at www.statewatch.org/media/documents/news/2018/mar/pl-judiciary-reform-chanceller-white-paper-3-18.pdf.Google Scholar
Claes, Monica and Reestman, Jan-Herman. 2015. “The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case.” German Law Journal 16 (4): 917970. https://doi.org/10.1017/S2071832200019957.CrossRefGoogle Scholar
Dixon, Rosalind and Landau, David. 2021. Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy. Oxford Comparative Constitutionalism. Oxford: Oxford University Press.CrossRefGoogle Scholar
Drinóczi, Tímea and Bień-Kacała, Agnieszka. 2021. Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law. London; New York: Routledge.CrossRefGoogle Scholar
Fabbrini, Federico and Sajó, András. 2019. “The Dangers of Constitutional Identity.” European Law Journal 25 (4): 457473.CrossRefGoogle Scholar
Faraguna, Pietro. 2015. Ai confini della Costituzione. Principi supremi e identità costituzionale. Milano: FrancoAngeli.Google Scholar
Faraguna, Pietro. 2016. “Taking Constitutional Identities Away from the Courts.” Brooklyn Journal of International Law 41 (2): 491–578.Google Scholar
Halmai, Gábor. 2018. “Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law.” Review of Central and East European Law 43 (1): 2342.CrossRefGoogle Scholar
Jacobsohn, Gary Jeffrey. 2010. Constitutional Identity. Cambridge: Harvard University Press.Google Scholar
Kelemen, R. Daniel and Pech, Laurent. 2018. “Why Autocrats Love Constitutional Identity and Constitutional Pluralism.” Reconnect Working Paper 2. RECONNECT – Reconciling Europe with Its Citizens through Democracy and Rule of Law.Google Scholar
Komárek, Jan. 2012. “Czech Constitutional Court Playing with Matches: The Czech Constitutional Court Declares a Judgment of the Court of Justice of the EU Ultra Vires; Judgment of 31 January 2012, Pl. ÚS 5/12, Slovak Pensions XVII.” European Constitutional Law Review 8 (2): 323337.CrossRefGoogle Scholar
Kühn, Zdenek. 2016. “Ultra Vires Review and the Demise of Constitutional Pluralism: The Czecho-Slovak Pension Saga, and the Dangers of State Courts’ Defiance of EU Law.” Maastricht Journal of European and Comparative Law 23 (1): 185194.CrossRefGoogle Scholar
Paris, Davide. 2017. “Carrot and Stick. The Italian Constitutional Court’s Preliminary Reference in the Case Taricco.” QIL QDI (blog). March 31, 2017. www.qil-qdi.org/carrot-stick-italian-constitutional-courts-preliminary-reference-case-taricco/.Google Scholar
Piccirilli, Giovanni. 2018. “The ‘Taricco Saga’: The Italian Constitutional Court Continues Its European Journey: Italian Constitutional Court, Order of 23 November 2016 No. 24/2017; Judgment of 10 April 2018 No. 115/2018 ECJ 8 September 2015, Case C-105/14, Ivo Taricco and Others; 5 December 2017, Case C-42/17, M.A.S. and M.B.” European Constitutional Law Review 14 (4): 120.CrossRefGoogle Scholar
Polzin, Monika. 2016. “Constitutional Identity, Unconstitutional Amendments and the Idea of Constituent Power: The Development of the Doctrine of Constitutional Identity in German Constitutional Law.” International Journal of Constitutional Law 14 (2): 411438.CrossRefGoogle Scholar
Rosenfeld, Michel. 2009. The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community. London; New York: Routledge.CrossRefGoogle Scholar
Roznai, Yaniv. 2017. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers. Oxford Constitutional Theory. Oxford; New York: Oxford University Press.Google Scholar
Scaccia, Gino. 2020. “The Lesson Learned from the Taricco Saga: Judicial Nationalism and the Constitutional Review of E.U. Law.” American University International Law Review 35 (4).Google Scholar
Schmitt, Carl. 1928. Verfassungslehre. Berlin: Duncker & Humblot GmbH.Google Scholar
Schmitt, Carl. 2008. Constitutional Theory. Tradotto da Seitzer. Durham, NC: Duke University Press.Google Scholar
Scholtes, Julian. 2021. “Abusing Constitutional Identity.” German Law Journal 22 (4): 534556. https://doi.org/10.1017/glj.2021.21.CrossRefGoogle Scholar
Spieker, Luke Dimitrios. 2020. “Framing and Managing Constitutional Identity Conflicts: How to Stabilize the Modus Vivendi between the Court of Justice and National Constitutional Courts.” Common Market Law Review 57 (2): 361398.CrossRefGoogle Scholar
Tripkovic, Bosko. 2020. “Constructing the Constitutional Self: Meaning, Value, and Abuse of Constitutional Identity.” Union University Law Review (Forthcoming). https://papers.ssrn.com/abstract=3744008.Google Scholar
Weiler, J. H. H. 2002. “A Constitution for Europe? Some Hard Choices.” JCMS: Journal of Common Market Studies 40 (4): 563580.Google Scholar

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