Charter – National Constitutions
3. Constitutional Identity
Finally there are red lines with regard to “constitutional identity” that na-tional highest courts might invoke. The duty to respect “nana-tional identities of Member States… inherent in their constitutional fundamental structures”
is also explicitly required as a matter of EU law (Art. 4 TEU). In practice it
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might be helpful to distinguish between two types of cases that have arisen or might arise in this context.
First, a court might deem a concrete and specific constitutional rule – e.g.
a constitutional rule prohibiting the extradition of citizens, a rule prohibiting foreigners from voting in local elections, a rule preventing women from serving in the armed forces etc. - to fall in this category. Such specific con-stitutional rules have sometimes been invoked by courts as a ground not to enforce countervailing EU legal norms. Courts insist that compliance with EU requirements here can only mean that the constitutional legislator has to amend the constitution. Implicitly constitutional courts claim that it is not up to them to enforce EU law over specific rules entrenched by the constitu-tional legislator.
It may appear forced and inappropriately formalist to insist that constitu-tional identity is triggered anytime a concrete constituconstitu-tional rule stands in the way of EU law enforcement. Would it have been plausible for the Ger-man constitutional court to hold that the bar against women serving in the German military was part of German constitutional identity? Perhaps the more plausible claim - leading to identical results - would be that it violates a Member States constitutional identity to have courts, rather than the con-stitutional legislator, effectively set aside specific concon-stitutional norms of this kind. Not the substantive rules themselves, but the constitutional role of national courts and their subjection to national constitutional rules - that is a particular institutional arrangement relating to the separation of courts and constitutional legislators - would be claimed as part of the national constitu-tional identity.
Second, a court might interpret other structural principles of the constitu-tion as precluding the enforcement of EU law. A French court might claim, for example, that a particular EU norm is incompatible with the French con-stitutional principle of laicité. The German Concon-stitutional Court has raised the issue whether perhaps Draghi´s interpretation of the ECB´s mandate to engage in OMT´s, potentially leading to significant financial burdens on na-tional taxpayers, violates the unamendable principle of democracy, inter-preted as requiring parliamentary authorisation for imposing any such bur-dens on German taxpayers.
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Whether invoking concrete and specific constitutional rules or more ab-stract principles, the plausible invocation of constitutional identity as a ground to resist the enforcement of EU law is best interpreted as circum-scribed by procedural and substantive requirements.
Procedurally it is required that a national court makes a preliminary refer-ence to the CJEU, providing that court with the possibility to provide its view on the understanding of Art. 4 TEU as it relates to the case at hand.
Even if the issue is national constitutional identity, that identity is being in-voked in a context that implicates European legal requirements. Further-more if the principle invoked as part of national identity is identical to one of the foundational values of Art. 2 TEU – think of the German court invok-ing democracy against certain ECB policies - there are additional grounds for the CJEU to weigh in. Given the shared nature of these commitments a further hermeneutical requirement to impose on national courts would be to require them to engage in comparative analysis. How is that shared univer-sal principle understood in other jurisdictions? How would they approach the issue? Neither the position of the CJEU or the views of other constitu-tional courts would be conclusive for the naconstitu-tional court. The final say on is-sues of national constitutional identity would plausibly remain with national courts, even when the CJEU disagrees with the position adopted and holds a Member State to be in violations of its obligations under EU law. But with-out this kind of vertical and horizontal engagement the decision of the na-tional court would be procedurally and hermeneutically deficient.
Substantively the invocation of national constitutional identity is firstly limited by the EU´s foundational values (Art. 2 TEU). To take an easy case:
if a Member State were to defend slavery as “a peculiar institution central to our tradition” and reflecting a distinctive “southern way of life”, as the Con-federate States did against the North in the US in the 19th century, that would of course be unacceptable. In practice the issue may occasionally be more complicated: What if the claim is that a particular interpretation of the principle of laicité invoked by France is in fact incompatible with the free exercise of religion? Probably the idea of protecting national constitutional identity would require granting a certain margin of appreciation to Member States. But that leaves room for disagreement about how wide in a particular
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case that margin should be and whether the particular case falls within that margin.
A further substantive constraint is the principle of proportionality as it re-lates to the opt-out effectively claimed by the state invoking constitutional identity: The opt-out is justified under EU law only if the consequences of such an identity-based opt-out are not unduly burdensome for European in-terests. Even the invocation of identity is thus circumscribed by the duty of sincere cooperation.
What if the invocation of constitutional identity is genuine and important, but it could not be justified under the circumstances because of the dispro-portionate burdens a national opt-out imposes on others? That opens the door to what might be called “irreducible identitarian constitutional con-flict”: a situation structurally equivalent to the invocation of conscience by private persons when public authorities cannot accept the refusal to obey the law because of the burden it imposes on others and the individual can´t ac-cept to comply with legal obligations. Member States, like individuals, re-main the final arbiters of their constitutional identity/conscience, but they cannot expect to escape legal sanction, when their disobedience imposes disproportionate burdens on others.
Final Sessions – Conclusions by the General Rapporteurs
(31 May 2014)
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