‘National constitutional identity’ has become the new ‘buzz word’ in European constitutionalism over the past few years. Much has been written about the concept involving the Member States’ national constitutional identities: it has been welcomed for (finally) accommodating constitutional particularities in EU law, demonised for potentially disintegrating the EU, and wielded as a ‘sword’ by certain constitutional courts. Scholars, judges and advocates general have rendered the concept currently so fashionable and yet so ambivalent that an in-depth analysis putting some order into the intense debate over constitutional identity is warranted.
This collection brings together a series of contributions from the perspective of both scholars and judges in order to shed some light into the dark corners of constitutional identity. To this end a threefold approach has been followed: a conceptual or philosophical approach, an approach based on EU law, and an analysis of the case-law of several European courts.
First the book explores what constitutional identity means and who decides on it. The next contributions analyse (and at times unveil) the areas that might collide or at least interact with constitutional identity. Among other issues the authors touch upon EU law primacy, Article 53 of the Charter of Fundamental Rights, EU criminal law and the essential functions of the State, and the existence of an EU ‘constitutional core’ enjoyable and enforceable through EU citizenship.
Finally, the chapters dealing with the case-law of European courts on national constitutional identity include the perspective of various national constitutional courts, such as those of Eastern and Central European Member States, the Court of Justice of the European Union, and the much less analysed European Court of Human Rights.
With contributions by Alejandro Saiz Arnaiz and Carina Alcoberro Llivina, José Luis Martí, Constance Grewe, Roberto Toniatti, Rafael Bustos Gisbert, Giuseppe Martinico, Monica Claes, Aida Torres Pérez, Maribel González Pascual, Daniel Sarmiento, Christian Tomuschat, Hèctor López Bofill, Joël Rideau, Pablo Pérez Tremps, Laurence Burgorgue-Larsen and Luis López Guerra.
About this book
‘[This] book achieves more than the simple presentation of the status quaestionis of national identity as a category of EU law. Among the already considerable literature on this subject – all too often perfectly omissible – the work edited by Saiz Arnaiz and Alcoberro Llivina stands out since they tackle the matter with a critical eye and refrain from limiting themselves to the description of the sole contingent manifestations of the concept in history. […] National Constitutional Identity and European Integration […] implies a genuine intellectual provocation that can only be appreciated and acclaimed.’
Juan Luis Requejo Pagés in Revista Española de Derecho Constitucional (2014) 425
Introduction: Why Constitutional Identity Suddenly Matters: A Tale of Brave States, a Mighty Union and the Decline of Sovereignty (p. 1)
Chapter 1. Two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People (p. 17)
Chapter 2. Methods of Identification of National Constitutional Identity (p. 37)
Chapter 3. Sovereignty Lost, Constitutional Identity Regained (p. 49)
Chapter 4. National Constitutional Identity in European Constitutionalism: Revisiting the Tale of the Emperor’s New Clothes in Spain? (p. 75)
Chapter 5. What Lies Behind Article 4(2) TEU? (p. 93)
Chapter 6. National Identity: Trump Card or Up for Negotiation? (p. 109)
Chapter 7. Constitutional Identity and Fundamental Rights: The Intersection between Articles 4(2) TEU and 53 Charter (p. 141)
Chapter 8. Criminal Law as an Essential Function of the State: Last Line of Resistance? (p. 159)
Chapter 9. The EU’s Constitutional Core (p. 177)
Chapter 10. The Defence of National Identity by the German Constitutional Court (p. 205)
Chapter 11. What is not Constitutional Pluralism in the EU: National Constitutional Identity in the German Lisbon Judgment (p. 221)
Chapter 12. The Case-law of the Polish, Hungarian and Czech Constitutional Courts on National Identity and the ‘German Model’ (p. 243)
Chapter 13. National Identity in Spanish Constitutional Court Case-law (p. 263)
Chapter 14. A Huron at the Kirchberg Plateau or a Few Naive Thoughts on Constitutional Identity in the Case-law of the Judge of the European Union (p. 275)
Chapter 15. National Identity and the European Convention on Human Rights (p. 305)
A Brief Author CV (p. 323)
Parts of this book have been made open access. We make chapters open access because they are particularly topical, or provide a useful introduction to the subject. They may be available for a limited time or indefinitely. Some books are entirely and permanently open access.
The Law & Cosmopolitan Values series contains monographs and collections of essays that address fundamental topics in law and globalisation, which range over doctrinal as well as normative questions of International and European law, human rights, justice and democracy. A main purpose of the series is to encourage scholarship that explores and transcends the categories and assumptions on which contemporary debates on globalization are conducted, and to stimulate reflection upon questions concerning the interplay between law, policy and principle.
Recognizing that there is non sharp distinction between theoretical and systematic work in the field from an analysis of law in context, the editors welcome studies from a wide variety of methodological traditions.
The contributions to the series which inevitably cross disciplinary lines appeal to students, researchers and professionals in public law, international law, human rights law, political science, legal, and political philosophy.
Editorial Board: Koen De Feyter, Patricia Popelier and Wouter Vandenhole.
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