Protection of National Identity – A Tolerated Ground for Breaching EU Law?

https://doi.org/10.63189/OSDY4206

Although the principle of respecting national identity was mentioned in the Maastricht Treaty, the context of Article 4 TEU, as well as Article I-5 of the Treaty establishing a Constitution for Europe, indicates that by adopting the Lisbon Treaty, Member States expressed their intention to grant it a new role in the Union's legal system.

The current article 4(2) of the Treaty on European Union safeguards national identity by mandating the European Union to respect the unique political, constitutional, and structural characteristics of its Member States. This provision functions as a counterweight to the primacy of EU law, allowing Member States to deviate from EU obligations when fundamental aspects of their identity are threatened. However, this protection is not an absolute exception to EU law; rather, it serves as a potential justification subject to thorough examination by the Court of Justice of the European Union.

Since the Lisbon Treaty came into effect in 2009, Article 4(2) of the Treaty on European Union has sparked intense scholarly debate. However, this academic discourse has not been accompanied by a significant body of case law from the Court of Justice of the EU. Instead, national constitutional courts have more frequently invoked the concept of national identity—often interpreted as constitutional identity.

The interplay between protecting national identity and the primacy of EU law remains a contentious issue, particularly when Member States invoke their constitutional identity to challenge the application of EU law. This blog explores whether the protection of national identity under Article 4(2) TEU provides a legitimate basis for breaching EU law. Through an analysis of the legal framework established by Article 4(2) TEU, the proportionality and compatibility assessments applied by the Court of Justice, and relevant case law, it is argued that while national identity can serve as a valid justification for derogations, it cannot be used as an unlimited excuse to disregard EU law. Moreover, this ongoing tension highlights the complexities of constitutional pluralism within the European Union.

Legal Framework: Article 4(2) TEU and Its Interpretation

Article 4(2) TEU read as follows: „The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.“

This provision requires the EU to respect the national identities of Member States, including their constitutional, political, and administrative structures, aiming to balance the EU’s integration objectives with preserving the distinctive characteristics of Member States. The Court of Justice has interpreted Article 4(2) TEU as offering Member States a legal basis for justifying deviations from EU law. However, such justifications are only valid if they satisfy two key criteria: proportionality and compatibility with EU principles. The Court has taken a cautious approach to national identity claims, stressing that any measures invoked must be genuine, consistent, and proportional. National identity cannot be used arbitrarily; it must be clearly essential to the constitutional order of the Member State in question.

Despite the ambiguity of the concept of national identity under the first sentence of Article 4(2) TEU, it is clear from the context of the provision that it cannot be considered synonymous with state sovereignty. Through successive revisions of the founding treaties, Member States have repeatedly endorsed the European integration project by voluntarily limiting their sovereign rights in specific areas in favour of the Union. Therefore, only those elements of national identity embedded in the fundamental national constitutional systems can be protected -provided they do not challenge the scope of transferred competences or threaten the independence of the Union’s legal order.^[1]

Garben (2020)^[2] observes that national courts have, in specific cases, disapplied EU law when deeply affecting core state powers, while Di Federico (2019)^[3] stresses that the application of Article 4(2) TEU remains ambiguous and inconsistent.

Proportionality and Compatibility Tests

When Member States invoke national identity as a justification for deviating from EU obligations, the Court of Justice applies two critical principles.

The proportionality test requires that any measure taken must be appropriate, necessary, and the least restrictive means available to achieve the goal of protecting national identity. This test involves a careful assessment of whether the measure genuinely serves a legitimate objective, if alternative measures could achieve the same result, and whether the impact on EU law is proportionate to the objective being pursued. The CJEU consistently applies this proportionality test to ensure that national identity claims cannot be used as a tool to bypass EU obligations. This means Member States cannot simply invoke their national identity to justify actions that conflict with EU law, such as trade barriers or restrictions on the free movement of goods, services, or individuals. The Court ensures that national identity claims are balanced against the underlying goals of the EU, such as the internal market, fundamental rights, and the rule of law.

The compatibility test stipulates that the measure must not undermine the fundamental principles of EU law, such as the rule of law, fundamental rights, and non-discrimination. This ensures that Member States cannot use national identity as a justification for actions that would contradict the core values of the EU, including human rights, democracy, and equality.

The margin of appreciation granted to Member States in defining their national identity is a crucial element in the Court’s analysis. While the Court of Justice acknowledges that Member States have some discretion in this regard, it consistently stresses that this discretion is not unlimited and it tends to adopt a cautious approach, particularly when there is a risk of undermining fundamental EU values. This ensures that national identity claims do not infringe upon the core principles of the Union, such as the rule of law and fundamental rights.

Examples of CJEU’s Case Law

The Court of Justice of the EU has addressed the protection of national identity in several significant cases.

In Commission v. Luxembourg, case C-473/93^[4], the Court of Justice, in clarifying the meaning and effects of Union rules even before the Treaty of Lisbon entered into force, recognized the protection of national identity as a legitimate reason for restricting the freedoms of the internal market. The Court reached this conclusion when examining measures that created obstacles to the internal market, where Member States justified their actions by invoking, for example, freedom of expression, freedom of assembly, the protection of human dignity, or the right to undertake collective action, including the right to strike.^[5]

In Sayn-Wittgenstein, case C-208/09^[6], Austria's refusal to recognize a noble title, which was intended to preserve the constitutional principle of equality, was upheld by the Court. The Court found the measure to be proportionate and legitimate under Article 4(2) TEU. This case highlights the Court's acceptance of measures that are genuinely grounded in fundamental constitutional principles, reinforcing the importance of protecting national identity while balancing it with EU law obligations.

In Las, case C-202/11^[7], the Court of Justice acknowledged linguistic identity as a legitimate interest but emphasized that any measures related to it must be proportionate and non-discriminatory. Belgian legislation that mandated the use of Dutch in employment contracts was found acceptable, but only within certain limits. This case highlights the Court's careful balancing of national interests, such as linguistic identity, with the need to ensure that such measures do not disproportionately restrict the rights of individuals or contradict EU principles.

On the other hand, in several cases where Member States invoked the protection of national identity, the Court of Justice rejected the applicability of the first sentence of Article 4(2) TEU.

In Runevič-Vardyn, case C-391/09^[8], Lithuania’s restriction on the use of diacritical marks in personal names was deemed disproportionate by the Court of Justice which emphasized the need to balance national identity with the rights of EU citizens under Article 21 TFEU. This case underscores the Courts’s approach of ensuring that national identity measures do not unduly infringe upon fundamental EU rights, highlighting the importance of safeguarding both national interests and the rights of individuals within the Union.

In Gauweiler, case C-62/14^[9], which addressed the legality of the ECB’s Outright Monetary Transactions program, the German Constitutional Court questioned whether it exceeded the ECB’s mandate and violated the EU’s ban on monetary financing. The Court of Justice ruled that Outright Monetary Transactions program was legal, as it fell within the ECB’s role in ensuring price stability and did not unlawfully finance Member States. It reaffirmed EU law’s primacy over national objections, rejecting claims that it violated Germany’s constitutional identity.

In M.A.S. and M.B. (Taricco II), case C-42/17^[10], the balance between EU law primacy and national constitutional identity was tested. It concerned Italian legislation on limitations for VAT fraud, which the Court of Justice had previously ruled should be set aside (Taricco I, C‑105/14^[11]). However, Italy’s Constitutional Court argued that doing so would violate fundamental constitutional principles, such as legal certainty. The Court of Justice ruled that EU law cannot require a Member State to disapply national rules if it would breach core constitutional principles. While the Court acknowledged national identity concerns, it did not base its ruling explicitly on Article 4(2) TEU. This case marked a shift toward balancing EU obligations with national constitutional safeguards, particularly in criminal law.

Melloni, case C-399/11^[12] involved Spain's refusal to execute an Italian European Arrest Warrant based on concerns over the violation of the right to a fair trial, which was part of Spain’s national constitutional identity. The Court of Justice ruled that the principle of mutual recognition of EU judgments takes precedence over national constitutional identity protections, as long as EU fundamental rights are upheld.

In Commission v Hungary, case C-78/18^[13], the Court of Justice ruled that Hungary’s foreign funding regulations were disproportionate, highlighting the limits of invoking national identity when core EU principles are at stake. Hungary claimed that the legislation was in line with its national identity and it had the sovereign right to regulate NGOs operating within its borders, particularly in the context of protecting national security and preserving its own social and political values. However, the Court emphasized that national identity must be balanced against the fundamental principles of EU law, including the freedom of movement and non-discrimination principles.

In Commission v Poland, case C-619/18^[14], the European Commission challenged Poland’s judicial reform, specifically the reform of the Supreme Court and the lowered retirement age of judges, arguing it undermined the independence of the judiciary, which is a core value of the EU. Poland defended its reforms by invoking national constitutional identity, claiming the reforms were within its sovereign rights. The Court ruled that Poland had violated EU law by interfering with judicial independence, but it emphasized that respect for national identity should not override fundamental EU principles like judicial independence.

Conclusion

Although the original aim of incorporating the protection of national identity into the Treaty of Lisbon may have been primarily to safeguard the material core of the constitution and ultimately to limit the absolute primacy of Union law, the Court of Justice has so far not accepted any limitation on the primacy of Union law in its case law.

In this regard, the German Federal Constitutional Court, when assessing the compatibility of the Treaty of Lisbon with the Basic Law, held that, based on Article 4(2) of the TEU, the constitutional principles of the Member States are incorporated into Union law. Along with the principles of loyalty, subsidiarity, and proportionality, this should ensure that the Union’s institutions exercise their powers in a considerate manner under all circumstances.^[15] However, the Court of Justice, on the other hand, has repeatedly reaffirmed the unconditional primacy of Union law over the legal systems of the Member States, including their constitutional norms, emphasizing the need for the unity and effectiveness of Union law. Claes (2021)^[16] suggests in this regard that this discrepancy between EU-level and national-level understandings of identity contributes to the complexity of applying identity protection as a ground for potentially breaching EU law.

National identity claims can be valid under Article 4(2) TEU, but they are not without limits. The Court of Justice has emphasized that measures aimed at safeguarding national identity must be genuine, proportionate, and aligned with core EU principles. Case law consistently reflects that the Court applies a strict proportionality test to prevent Member States from using national identity claims as a means to evade EU law.

The significance of the first sentence of Article 4(2) TEU is thus undeniable, as it directly links Union law with national constitutional law. Based on this provision, selected elements of the national identity of Member States, as reflected in their constitutional systems, could be incorporated into the primary law of the Union. The identification of these elements depends on the conceptual framework of national identity as an autonomous notion of Union law, which is gradually defined through the case law of the Court of Justice based on information provided by national courts and the Member States concerned.

Finally, the protection of national identity does not serve as a justification for breaching Union obligations but rather plays a role in determining the scope of Union duties imposed on Member States. Thus, the protection of national identity is only a legitimate justification in specific situations where the measures are proportionate and do not undermine the fundamental principles of EU law. The evolving jurisprudence of the Court of Justice continues to refine the balance between national identity and EU obligations, ensuring that Member States cannot exploit national identity claims to circumvent EU law.

^[1] See CRAIG, P., DE BÚRCA, G.: EU Law: Text, Cases and Materials. 5th ed. Oxford: Oxford University Press, 2011, p. 266.

^[2] S. Garben: Collective Identity as a Legal Limit to European Integration in Areas of Core State Powers, In: Journal of Common Market Studies, 2020, p. 41-55, https://doi.org/10.1111/jcms.12975

^[3] G. Di Federico, The Potential of Article 4(2) TEU in the Solution of Constitutional Clashes Based on Alleged Violations of National Identity and the Quest for Adequate (Judicial) Standards, In: European Public Law, 3/2019, p. 347-380.

^[4] Judgment of 2 July 1996, EU:C:1996:263.

^[5] See judgments of 12 June 2003, Schmidberger, C-112/00, EU:C:2003:333; of 14 October 2004, Omega, C-36/02, EU:C:2004:614; and of 11 December 2007, International Transport Workers’ Federation, C-438/05, EU:C:2007:772.

^[6] Judgment of 22 December 2010; EU:C:2010:806.

^[7] Judgment of 16 April 2013, EU:C:2013:239.

^[8] Judgment of 12 May 2011, EU:C:2011:291.

^[9] Judgment of 16 June 2015, EU:C:2015:400.

^[10] Judgment of 5 December 2017, EU:C:2017:936.

^[11] Judgment of 8 September 2015, EU:C:2015:555.

^[12] Judgment of 26 February 2013, C:2013:107.

^[13] Judgment of 18 June 2020, EU:C:2020:476.

^[14] Judgment of 24 June 2019, EU:C:2019:531.

^[15] Judgment of the German Federal Constitutional Court of 30 June 2009, case no. 2 BvE 2/08, ECLI:DE:BVerfG: 2009:es20090630.2bve000208.

^[16] M. Claes: National Identity and the Protection of Fundamental Rights. in: European Public Law, 2019, 3/2019, p. 517-536.