On constitutional identity in the European Union. Five decisions

Abstract

The article critically examines the issue of “constitutional identity” in the European Union through a methodological approach articulated in five decisions, which makes it possible to reach some substantive conclusions about what “constitutional identity” is and what it should be in the legal practice of European courts. European law is a peculiar creature, as it is the product of both case law and legal scholarship. Its teleological nature, oriented toward the efficiency of the single market, has led to a jurisprudential evolution that is often creative, at times even contra legem, with profound effects on national legal systems and on the tradition of the ius privatum europaeum. In this context, the clause on national identity as constitutional identity set forth in Article 4(2) of the Treaty of Lisbon is interpreted as a principle that limits the expansion of the European economic constitution, acts as a brake on supremacy, and ultimately functions as a “reservation of interpretation”.