This chapter deals with the concept of constitutional identity as it is understood in the Czech Republic. First, it defines the content of the ‘legal’ constitutional identity developed by the Czech Constitutional Court and the process of its formation in court case law. Subsequently, the chapter explores the normative effects of the judicially created Czech constitutional identity, especially in relation to the European Union (EU) and the principle of the primacy of EU law. Finally, it problematises the concept of Czech constitutional identity, introducing the ‘popular’ strand, which goes beyond the constitutional text and is built around formative historical events in Czech(oslovak) history. The authors argue that it is here where the gap between the ‘legal’ constitutional identity and the ‘popular’ constitutional identity is growing, with significant repercussions for the Czech constitutional order as well as for its relationship with EU law.

Austria’s constitutional identity comprises the Basic Principles as well as several other provisions of the Federal Constitution. The Basic Principles rank highest in the Austrian legal order. They form a constitutional core that may not be limited by EU law. This core concerns the Democratic Principle, the Republican Principle, the Federal Principle, and the Principle of the Rule of Law – the latter of which includes the Principle of the Separation of Powers and the Liberal Principle. The Austrian Federal Constitution is rather ‘flexible’ as far as constitutional amendments are concerned. Such amendments occur at frequent intervals (over 100 times since 1929). Thus, special care has to be taken when determining which constitutional provisions form part of Austria’s constitutional identity beyond the Basic Principles. Some Objectives of the State (for example, the social partnership) as well as several other constitutional norms (for example, the abolition of the nobility) qualify as constitutional identity.

The concept of constitutional identity (Verfassungsidentität) has been unfolded by the German Federal Constitutional Court (GFCC) to frame and control the process of European integration. Jurisprudence ranging from the renowned Solange to the famous Lissabon judgments has never been undisputed. Although not found in the wording of the German Basic Law, constitutional identity is nowadays mainly associated with the Basic Law’s Art. 79(3). Accordingly, the notion primarily comprises the protection of human dignity, the principle of democracy, the social state objective, and the rule of law. The GFCC exercises its control by a fundamental rights review, the ultra vires review, and the constitutional identity review. All three types lately seem to have been merged under the umbrella of constitutional identity review. Meanwhile, the concept of Integrationsverantwortung‘ (responsibility for integration) requires all German constitutional bodies to respect the European integration agenda and to protect German constitutional identity. Arts. 4(2) and (3) TEU underpin the necessity of close and constructive judicial dialogue between the ECJ and the national constitutional courts.

This chapter focuses on the notion of constitutional identity in Italy through the analysis of the discourse and practice of the Presidente della Repubblica and the Corte Costituzionale, the CC. It briefly outlines Italian constitutional history and then surveys the discourse of the past three presidents delivered on topics of constitutional patriotism and European integration. The chapter discusses the Taricco judgment and its follow-up, explaining how this case represents a turning point in the case law of the CC due to the limited attention that the court gives to building bridges and emphasising common European constitutional tradition and, in contrast, the unprecedented emphasis that it puts on raising walls and stressing national legal peculiarities. Finally, the chapter contrasts the approaches of the two Italian organi di garanzia and questions whether the neo-sovereigntist rhetoric of the CC is constitutionally sound given the fundamental principle of Art. 11 of the Constitution – compelling Italy to participate in the project of EU integration – but also institutionally advisable at a time when Italy’s pro-EU orientation is for the first time politically at risk.

This chapter sets the scene for the volume by introducing the notion of constitutional identity for the purpose of analysis and comparison. The chapter also describes the division of the volume into three parts by explaining what each part will focus on in presenting a picture of constitutional identity in a Europe of multilevel constitutionalism.

This chapter gives a comparative overview of the preceding country studies in this volume, which deal with the relationship between national constitutional identity and EU law. In giving an overview, this chapter first discusses the sources of constitutional identity before turning to the actors involved in interpreting such sources and the methods used. This is followed by a discussion of the content of constitutional identity and how such content could be factually disturbed in one way or another. The chapter concludes by considering the ways in which a Member State can respond to disturbances of its identity and offers some thoughts on the problem of constitutional identity conflicts between the Member States and the EU.

Dutch constitutional identity is not a fixated entity functioning as a constitutional bulwark to shield the Netherlands from European integration, but is rather characterised by an openness to and embeddedness in international and European law. It includes an emphasis on individual rights and autonomy within a culture of compromise and cooperation, based on the idea of all ultimately being in the same boat together. This idea not only applies to the traditional ability of the Dutch to live together peacefully despite differing views on fundamental issues. It also entails that the Dutch constitutional identity should not exist in opposition towards other constitutional identities within the European Union, but that all should move alongside each other, setting sail in the same direction.

Art. 4(2) TEU provides that the European Union (EU) shall respect Member States’ national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. This chapter examines the extent of this duty resting on the EU with regard to both the content and normative functions of the identity clause. Analysed against the backdrop of multilevel constitutionalism, an understanding of the identity clause as a Verbundnorm is proposed. The chapter outlines this understanding and shows how it helps untangle and explain in detail the modality and extent of the connection between the identity clause and the Member States’ constitutional identity debates. Building on this, the chapter then explains how application of the identity clause can be aimed at establishing and ensuring the functioning of the European legal system as a whole.

The chapter addresses the role and content of Spanish constitutional identity. It first considers the stance of the Spanish Constitutional Court. In this regard, Spain joins the list of EU Member States whose constitutional courts do not accept the principle of primacy’s effectiveness in EU law vis-à-vis the Constitution. In order to contain the unlimited scope of that principle, the Constitutional Court has come up with an original and controversial distinction between the primacy of EU law and the supremacy of the Constitution. It also acknowledges that there is a core of the Constitution – its constitutional identity – that falls outside the scope of primacy. Its content lies in the respect for state sovereignty, for basic constitutional structures, and for the system of core values and principles in the Constitution, where fundamental rights acquire their own substantive nature. The chapter also examines the role of constitutional identity in the context of the Catalan secessionist movement. It considers that ensuring the state’s territorial integrity is an indispensable part of constitutional identity, whilst providing an obligation incumbent on the EU under Art. 4(2) TEU.

The last chapter concentrates on this book’s underlying idea of characterising the relationship between EU law and national constitutional law as a system of multilevel constitutionalism. Staatenverbund and Verfassungsverbund are explained as ways of conceptualising the EU. Verbund, understood as a descriptive concept, builds on these concepts and explains the existing reality of the EU legal system, which contains both hierarchical and heterarchical elements. It is further developed as a normative concept with the aim of finding ways of optimising various forms of contextual interactions, mutual interdependence, and the interlinkage between EU law and national law in order to gain an effective solution for each individual problem at hand. Finally, the chapter also shows how thinking within the system of multilevel constitutionalism provides the framework and individual tools to balance the protection of Member States’ expressions of constitutional identity with the provisions and principles of EU law. Some possibilities for various joint EU and national legislative or judicial decisions are also outlined.

On the face of it, from the perspective of some orthodox EU lawyers, constitutional identity may sound like another open-ended limit to EU integration – and a limit of the worst kind. Admittedly, if over-extensively relied on and construed in a very conservative manner, identity can be a powerful weapon in the hands of constitutional court justices who would somehow transfer warfare between Member States from actual frontlines to judicial terrain. Yet this chapter argues that there are not only – or perhaps even mainly – vices attached to national constitutional identity, at least in the French approach. As long as it is used wisely, that concept may indeed have several virtuous effects at the systemic and also the substantive level. It is ultimately for the alchemists of constitutional identity (that is, constitutional courts, in conjunction with the Court of Justice of the European Union) to decide to make of that concept either a bridge between legal orders, a porous boundary, or a thick and high wall.

Traditionally, Danish case law, academic literature, and other sources do not refer directly to ‘constitutional identity’. However, this absence of the term constitutional identity does not mean that Denmark has none. What it does mean is that it must be extracted from an interpretation of the Constitution, case law, and other sources. Seen in light of the different models of national separation of power in the EU Member States, this chapter challenges the common assumption that constitutional courts and supreme courts are the definers of national constitutional identity in relation to Article 4(2) TEU. In some Member States, the courts are very active in defining constitutional identity, but in others with strong parliaments and more reluctant courts, this is not the case. In order to secure equality between the Member States, we will have to accept that institutions other than courts can be the definers of constitutional identity, depending on the national model for separation of powers.

Ireland’s practice of holding referendums to approve European treaties has operated as a significant political barrier in the European integration process. This chapter explains how the practice derives from quite distinctive interpretations of the principles of national sovereignty and popular sovereignty enshrined in the Irish Constitution. In particular, it explains both how popular sovereignty in Irish constitutional law receives a largely procedural and plebiscitary expression, and how national and popular sovereignty have become conceptually intertwined. Although both versions of sovereignty have become integral components of constitutional identity in Ireland, this chapter explains various anomalies and contradictions that arise from each.