ON A CONSTITUTIONAL AND NATIONAL IDENTITY OF THE EU MEMBER STATES: SAME BUT DIFFERENT?

Abstract

This article examines whether the concepts of national identity and constitutional identity in the European Union’s legal framework can be used interchangeably. By tracing the historical evolution and travaux préparatoires of Article 4(2) TEU, the paper demonstrates that the drafters consistently employed the term national identity as an autonomous concept of EU primary law, deliberately omitting any reference to constitutionality. Building on the theoretical framework proposed by Elise Cloots, the article develops a teleological and interpretative argument showing that the interchangeable use of these terms lacks textual and historical support. It then examines how Member States’ constitutional courts, particularly the German Federal Constitutional Court have constructed a doctrine of constitutional identity review rooted in national constitutional law. This jurisprudence distinguishes constitutional identity as an absolute, domestically defined limit to European integration, while national identity under Article 4(2) TEU functions as a principle of respect constraining the exercise of Union competences. The article concludes that conflating these two notions risks both conceptual confusion and constitutional deadlock within the EU. A clear differentiation between national and constitutional identity is therefore essential for maintaining a coherent balance between national sovereignty and the primacy of EU law.