The Constitution of Poland does not use the term ‘constitutional identity’, but this concept has been developed and expounded by the Constitutional Tribunal. The chapter argues that the constitutional identity has become both a normative and a descriptive concept in the constitutional jurisprudence. On the one hand, the Tribunal used the concept of constitutional identity to determine the limits of the competence for conferring power to the European Union, excluding certain subject matters from the scope of the conferral. On the other hand, references to constitutional identity in the Tribunal’s case law denote axiological similarity, equivalence, or convergence between the EU and the national legal order. Moreover, the descriptive notion of constitutional identity has been used to signify the distinctiveness of the Polish constitutional order, which has recently been employed by the populist government to claim the right to introduce reforms undermining the rule of law as an aspect of national sovereignty.

This chapter considers the idea of constitutional identity as it pertains to the UK, viewed from the perspective of EU-UK relations. The analysis begins by consideration of the conceptual frame within which the relationship between UK and EU law evolved, and more especially the way in which supremacy was conceived in EU law and UK law, respectively. The discussion thereafter shifts to a more general consideration of the idea of constitutional identity in the UK. While the language of constitutional identity is not commonly used in judicial discourse, there are nonetheless a number of precepts that are central to the identity of the UK constitutional order. These include parliamentary sovereignty, constitutional statutes and the principle of legality, the rule of law, and devolution. The analysis then shifts to the consequences of a clash between EU law and UK law that impacts on one of the preceding UK constitutional precepts. These consequences may be interpretive or substantive in nature, and they are examined in turn. Brexit, however, means that it is unlikely that the issues raised in the last section of the chapter will be tested.

This chapter on Belgian constitutional identity consists of two parts. A first part explores the views of Belgium’s supreme judicial institutions on the relation between the Belgian Constitution – in particular its ‘identity’ – and EU law. It is shown that the courts’ views diverge. Whereas the Cour de Cassation fully complies with EU orthodoxy, the Constitutional Court’s acceptance of the primacy of EU law is based on a constitutional provision and is subject to the proviso that EU law comply with Belgium’s national identity and fundamental constitutional values. The Council of State, for its part, seems to vacillate between these two positions. In a second part, the focus shifts to the meaning of the twin concepts of national and constitutional identity in Belgian law. Those concepts being new to the Belgian legal order, their content is still shrouded in mystery. This contribution makes an attempt to lay bare their meaning by delving into Belgian constitutional history.

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.