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Published online by Cambridge University Press: 27 October 2017
The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.
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22 Ibid, para 33 ‘the fact that the view of the fundamental right held by a Member State is not shared by other Member States does not prevent that Member State from relying on it so as to justify a restriction of the freedom to provide services’.
23 Case C-36/02, Omega Spielhallenund Automatenaufstellungs-GmbH  ECR I-9609.
24 Opinion of Advocate General Maduro in Case C-213/07, Michaniki AE v Ethniko Simvoulio Radiotileorasis  ECR I-09999, para 31.
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26 Case C-208/09, Sayn-Wittgenstein v Landeshauptmann Von Wien  ETMR 12.
27 Ibid, para 74.
28 ie the Law on the abolition of the nobility enjoys constitutional status and implements the principle of equal treatment (paras 85–87 of the judgment in Sayn-Wittgenstein).
29 ie there was enough proof that the contested measure restricting fundamental EU law freedoms was necessary for the protection of the principle of equal treatment and that such an objective could not have been attained by less restrictive measures (para 90 of the judgment in Sayn-Wittgenstein).
30 Ibid, para 92.
31 Ibid, para 86.
33 C-438/05, Viking  ECR I-10779; C-341/05, Laval  ECR I-11767. The same can be argued about Case C-112/00, Schmidberger v Republic of Austria  ECR I-5659 where the CJEU upheld the freedom of expression and assembly over Art 34 TFEU (invoked vertically against the State), but only having subjected the conduct of the Austrian Government to a detailed assessment of compliance with the principle of proportionality.
35 Case C-55/94, Gebhard v Consiglio dell’ Ordine degli Avvocati e Procuratori di Milano  ECR I-4165.
36 Case C–67/96, Albany International  ECR I-5751.
37 Case C-271/08, Commission v Germany, Judgment of the Court, 15 July 2010. This case concerned the compatibility of the fundamental right to bargain collectively with Dirs 92/50 and 2004/18 implementing the freedom of establishment and the freedom to provide services in the field of public procurement. See Case Comment by Smith, S in (2010) 6 Public Procurement Law Review 225 Google Scholar.
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42 Case C-208/09, Sayn-Wittgenstein v Landeshauptmann Von Wien  ETMR 12, para 87.
43 See Case C-446/03, Marks & Spencer plc v David Halsey (Her Majesty’s Inspector of Taxes)  ECR I-10837; Case C-148/02, Garcia Avello  ECR I-11613; Case C-192/05, Tas Hagen and Tas  ECR I-10451; Case C-135/08 Janko Rottmann  OJ C113, 1 May 2010.
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48 BVerfG, Lisbon judgment, paras 211, 217.
50 BVerfG, Lisbon judgment, para 228.
51 V Skouris, ‘The Relationship of the European Court of Justice with the National Constitutional Courts’, Twenty Years of the Hungarian Constitutional Court Symposium, 2010, available at www.mkab.hu/index.php?id=vassilios_skouris__president_of_the_ european_court_of_justice.
52 BVerfG, Lisbon judgment, para 241.
53 Dir 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Dir 2002/58/EC  OJ L105/54.
54 Decision of 2 March 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08.
55 The specified classes of data which can be retained are listed in Art 5 of the Data Retention Dir. Art 6 of the Dir sets the limits of the period of retention, which may be between six months and two years from the date of the communication.
56 Dir 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Dir on privacy and electronic communications)  OJ L201/37.
57 On 1 July 2008, the Irish Government sought to annul the Directive on the ground that it was not adopted on an appropriate legal basis. Ireland, which along with Slovakia was outvoted when the Council adopted the Dir, argued that the Community was not competent to adopt such a measure, at least not on the legal basis that was chosen, since its centre of gravity did not concern the functioning of the internal market but public safety and crime prevention. See Konstadinides, T, ‘Wavering between Centres of Gravity: Comment on Ireland v Parliament and Council ’ (2010) 35 EL Rev 88 Google Scholar.
58 S 212 of the German Data Retention Judgment.
59 Federal Constitutional Court, Press release No 11/2010 of 2 March 2010, Judgment of 2 March 2009, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08. See also para 218 of the judgment.
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61 Re Honeywell, Federal Constitutional Court (Second Chamber)  1 CMLR 33.
62 Case C-144/04, Mangold  ECR I-9981.
63 Dir 2000/78/EC establishing a general framework for equal treatment in employment and occupation  OJ L303/16.
64 Ibid, para 74.
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66 See Advocate General Mazák’s Opinion in Case C-411/05, Palacios de la Villa  ECR I-08531.
67 Constitutional identity is mentioned four times in the judgment (paras H4; 40; 44(1); 50).
69 Re Honeywell, above n 61, para 63, ‘With the disputed general principle of the prohibition of discrimination based on age derived from the constitutional traditions common to the Member States, however, neither a new field of competences was created for the Union to the detriment of the Member States, nor was an existing competence expanded with the weight of a new establishment.’
70 Such a concern has been expressed by Pilakos. See Pilakos, A, ‘Who is the Ultimate Arbiter? The Battle over Judicial Supremacy in EU Law’ (2011) 36(1) EL Rev 109, 123Google Scholar.
71 ie ‘the question of whether Community law did not demand §14.3 sentence 4 of the Law on Part-Time Working and Fixed-Term Contracts to be set aside’. Re Honeywell, above n 61, para 100.
72 Re Honeywell, ibid, para 100.
73 Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co KG  OJ C 63/4.
74 Re Honeywell, above n 61, para H8.
75 Ibid, paras 38–40.
76 Ibid, para 49.
77 Maduro, M, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ (2007) 1(2) European Journal of Legal Studies 1, 3Google Scholar.
78 G Davies, ‘Constitutional Disagreement in Europe and the Search for Pluralism’ Eric Stein Working Paper No 1/2010, available at papers.ssrn.com/sol3/papers.cfm?abstract_ id=1559323.
79 Decision 2010-605 DC  3 CMLR 4. It has been argued, however, that France’s recent constitutional review did not seem to ensure the supremacy of the French Constitution. See Hunter-Henin, M, ‘Constitutional Developments and Human Rights in France’ (2011) 60 International and Comparative Law Quarterly 167 CrossRefGoogle Scholar.
80 On the ‘EU workable constitutional identity’ thesis see M Rosenfeld, ‘The European Treaty—Constitution and Constitutional Identity: A Comment on Professor von Bogdandy’ Jean Monnet Working Paper 5/04.
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