‘Please keep off the grass!’
Article 4(2) TEU and the respect for national identity in EU law
Wiebe Hommes 10060901
MA European Union Law 27-07-2016
2 The nations are not something eternal. They have emerged once, as they will once end. Probably, a
European confederation will replace them.’1
3
Abstract
The identity clause of article 4(2) TEU has attracted a lot of attention recently, as it was seen as a way of ‘overcoming the primacy of EU law’ by some and as entailing nothing new at all by others. Within this contested meaning, especially its possible use as a ‘keep off the grass’ clause is of particular importance: as the EU is required to respect the national identity of its Member States, these may invoke their national identity as a means of derogating from their obligations under EU law. By investigating the historical underpinnings of the article it will be shown that the article was set up to serve as a possible ‘brake’ on European integration. On the other hand, this does not mean Member States have been granted a ‘free out of jail’ card. Before the European Court of Justice (ECJ) the provision has become formed in an ‘Europe-friendly’ way, by incorporating the article into a classic proportionality test, although it applies this test differently in cases concerning free movement of workers than in free movement and residence cases, where the test is indeed very lenient. In doing so, the Court has stripped the provision of its potentially explosive contents, although the article does offer an autonomous ground to derogate from internal market provisions. Also, the Court seems to prefer a ‘cultural’ notion of national identity, which might ultimately lead to situations where Member States may protect their ‘culture’ –usually a majoritarian form of culture- from perceived threats under EU law.
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Contents
Introduction 5
Letting the French be French: The ‘spirit’ of article 4(2) TEU 7
Whose identity? Which identity? 13
‘Respecting’ National identity? 25
Conclusion 30
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Introduction
A Briton barring the way for Roman emissaries was not an usual act of defiance, not even in the world of Asterix. Normally these Romans would have to be granted absolute priority in the occupied Britannia of 55 BC. However, one can only sympathize with the very understandable desire to maintain quite a decent bit of turf, and thus with the requirement for the Romans to ‘please keep of the grass’. In this particular case, the Roman intrusion on the precious domestic turf was effectively thwarted. Solid British reasoning (‘my garden is smaller than your Rome, but my pilum is harder than your sternum’) proved to be enough deterrent for the emissaries to indeed keep of the grass.2
The analogy of this encounter with present day relations between the European Union -dubbed the successor of the Roman Empire by many, including by former Brexit-campaigner Boris Johnson3- and its Member States is not too far stretched. Also today, Member States are, as the defiant Britons have shown, not too keen of European involvement in sensitive areas where they would like the EU to ‘keep off the grass’. The Member States even have their own ‘pilum’ in this context, as the EU is legally required to ‘keep of the grass’ if the national identity of a Member State is concerned. Article 4(2) of the Treaty on the European Union (TEU) sets out this requirement in full:
‘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. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State’
It is the possible use of this article as a ‘keep off the grass-clause’ I am particularly interested in. To what extent can the respect for national identity be invoked before the European Court of Justice (ECJ) as a way of ‘shielding’ national peculiarities from EU-intrusion? There has been a vivid academic debate concerning the scope of article 4(2) TEU, with positions varying between seeing the article as a way of ‘overcoming absolute primacy of EU-law’ to the notion the article entails ‘nihil novi whatsoever’.4 This leaves the national identity clause to be a
2 A short word on Latin terminology: ‘pilum’ is usually translated as ‘spear’ whereas ‘sternum’ means
‘breastbone’. The quote and comic are by Rene Goscinny and Albert Uderzo, Asterix in Britain (1970).
3 Boris Johnson, The Dream of Rome (London 2006) 10.
4 Respectively the positions of Armin van Bogdandy and Stephan Schill and Laurence Bourgorgue-Larsen. See A.
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constant cause for uncertainty, which allows for a further research into the precise meaning of this article. The truth lies, as we shall see, somewhere in the middle as the article does indeed offer a way to derogate from EU law, yet under certain conditions.
In order to answer this question it is first necessary to look at the ‘spirit’ of the article. Why was such an ‘anti-integration’ clause even included in the Treaties, and what were the implications envisaged by its drafters? By taking a close look at domestic debates and the ‘travaux preparatoires’ of the article, the intent of the drafters and purpose of the article can be distilled.
Secondly, it is necessary to understand what the concept ‘national identity’ means in a legal sense. What are we talking about with article 4(2) TEU? Two sub questions come to the fore in this context, namely who gets to decide on the contents of this national identity (the domestic courts or the ECJ?) and subsequently, what aspects of national identity have been accepted so far. For despite being a somewhat ‘underused’ article, there seems to be a trend towards accepting a rather specific form of national identity, with a focus on cultural aspects. After getting straight what thus far has been accepted as belonging to the national identity of article 4(2) TEU, the consequences of an appeal on the article are investigated. What does the ‘duty to respect the national identities of the Member States’ actually mean? Is national identity -as the ‘pilum’ of the Member States- indeed harder than the ‘sternum’ of the uniform application of EU-law? We shall see that the ECJ tends to shy away from a truly explosive interpretation of the article, but at the same time, it keeps the door open for Member States to ‘opt out’ from their obligations under EU-law.
In doing so, a better understanding of the article an sich can be achieved, while in parallel the legal relation between Member States and European Union is studied. Where issues of primacy, direct effect and the precedence of EU-law have been the motor behind European integration, respect for national identity is the other side of the medal, aiming at holding European Law at bay. Could it potentially serve as a handbrake on this project?
Lisbon Treaty’, Common Market Law Review Vol. 48 (2011) 1417-1454; L. Burgorgue-Larsen, ‘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’ in Sainz Arnaiz and Llivinia (eds.) National Constitutional Identity and European Integration 275-304.
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Letting the French be French: the ‘spirit’ of article 4(2) TEU
Respect for the national identities of Member States did not suddenly crystallize in the Treaty of Lisbon: it made its entry already in 1992 in the Treaty of Maastricht when article F of the common provisions set out that ‘The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy’5. For over
twenty years now, national identity has thus been part of European Union Law, and while as some authors have pointed out that ‘a chronological summary of treaty revisions leading to the inclusion of the national constitutional identity clause in the Treaty on the European Union does not explain why the protection of Member States’ national identities in the European integration process has become so increasingly appealing’,6 a summary of this kind may certainly help to understand the concept of the identity clause. What was the aim of the authors when drafting this clause, and what should be its consequences?
The identity clause in the Treaty of Maastricht did not attract a lot of attention at the time, arguably because - as a part of the common provisions- it was not part of ‘hard law’.7 Moreover, the deliberations and negotiations of the Treaty are still clouded in mystery. However, in order to facilitate research on the Maastricht Treaty, the library of Court of Justice compiled the materials of all Member States on the ratification process of the Treaty. As the president of the Court, Mr. Carlos Rodriguez Iglesias put it, ‘knowledge of those preparations is vital for a full appreciation of the Treaty. Its application and interpretation can be made easier, more secure and firmly founded by consulting national materials connected with ratification’.8
By using these sources it becomes possible to understand how the national identity clause was perceived at the time, which in turn helps establishing the context of the provision.9
In these domestic debates, two general themes can be distinguished, namely the connection of national identity with cultural aspects and secondly, the urge to provide a ‘brake’
5 Treaty of Maastricht, Article F.
6 Alejandro Saiz Arnaiz and Carina Alcoberro Llivinia, ‘Why Constitutional Identity Suddenly Matters’ in Saiz
Arnaiz and Llivinia (eds.) National Constitutional Identity and European Integration (Cambridge Intersentia 2013), 1-12, 4.
7 Monica Claes, ‘National Identity: Trump Card or Up for Negotiation’ in Sainz Arnaiz and Llivinia (eds.) National
Constitutional Identity and European Integration, 109-139, 115.
8 Library Division of the Court of Justice of the European Union, Ratification of the Treaty on European Union:
Prepatory Studies (Luxemburg 1996).
9 The studied domestic debates concern The Netherlands, Belgium, France, Ireland, The UK and Germany. In
order to be truly representative, Italy and Spain would have to be included as well, yet language barriers prevented an investigation of these sources.
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on the actions of the Union10 This had to do with the notion that with the Maastricht Treaty, the
Union acquired new competences, and moved from the field of a purely economic organization into a more ‘political’ one. The Union covered after Maastricht also cooperation in political areas, European citizenship and supporting competences in the fields of culture. Member States proved willing to accept these changes, but would have to be reassured that the Union would not go too far. The ‘federal vocation’ of Europe would have to be circumcised, and national identity served as a ‘brake’ in this context.11 Some examples may clarify this stance of the
national governments.
The Dutch Council of State provided the most comprehensive analysis of the Treaty. Each article was treated separately, and in it, the Council set out a very clear idea on the meaning of article F(1):
‘Article F states that the Union shall respect the national identities of the Member States. This is above all a political message that an ever closer Union does not have, nor is meant to lead to a stronger harmonized Europe. Purposely, a multi-facetted community in cultural diversity is chosen, for a Europe based on democratic principles, respect for human rights and an as decentralized governance as possible’12
The two aspects, namely culture and ‘the brake-function’ are firmly intertwined in this analysis. The ‘ever closer Union’ is circumcised by a political ‘brake’ on harmonization and by the notion of a decentralized governance: the EU should keep to its core business. The focus on culture became even clearer during the parliamentary debates: concerning the competences of the EC in the fields of culture, education and health services it was noted that especially in these areas, the national identity was threatened, which would be against the principle of subsidiarity.13 Prime minister Ruud Lubbers also noted in this context the need to strike a balance between the advantages of cooperation and integration and the cultural identity of the citizens.14
The intertwinement of the notions also emerged in the French and German debates: during the debate concerning the constitutional implications of the Treaty in France, it was noted that while culture was a strictly national matter, the Treaty also
10 The following examples conclude statements from the Netherlands, Germany and France, but it should be
noted that the other countries follow roughly similar courses on the subject.
11 As Claes also sets out: Claes, ‘National Identity’, in Arnaiz and Llivina (Eds.) 116.
12 Ratification of the Treaty on European Union: Prepatory Studies Vol. 13, Nederland, Nr. 3 Doc. NL-3, 99. 13 Ratification of the Treaty on European Union Vol. 13, Doc. Nl-19, 571-572.
9 ‘introduisait … les principes essentiels qui gouvernent l’Union Européenne et ses rapports avec la France: respect de nos principes fondamentaux, de notre ordre juridique constitutionnel et de notre identité nationale, cantonment des pouvoirs de l’Union à l’exercise des compétences strictement nécessaires à l’application du traité’.15
The Union thus had to strictly abide by its competences as stated in the Treaty and not ‘creep’ to new areas,. In this context, Mr. Jérome Vignon, councilor of the European Commission explained that the European Union, by the principle of subsidiarity, was not to become a dispossessor of the national identities, but should in fact help enhance these identities.16
In Germany, the Minister of Foreign Affairs, Klaus Kinkel discussed the issue in a speech in the Bundestag:
‘Die Europäische Union bedeutet nicht den Verlust der nationalen Identität. Sie wird kein Schmelztiegel werden, sondern ein Kraftquell Europas; sie wird die Vielfalt und den Reichtum seiner Kulturen Bewaren… Ich persönlich bin überzeugt davon, dass unsere Bürger Europa wollen. Sie wollen auch die Europäische Union, wenn wir Franzosen Franzosen, Italiener Italiener und Deutsche Deutsche sein lassen.’17
It may not come as a surprise that this reassurance was directly followed by a section on how the Union was tied to its competences and how this safeguarded national prerogatives. Nor is it surprising that the final analysis of the Bundestag spoke of a Europe that ‘according to the phrase ‘unity in diversity’ preserves and respects the national identity, culture and way of life in each country and region.’18
It should thus be noted that from the outset the national identity clause was set out as a check on Union competences, and as a possible brake on the integration process as such. A ‘competence creep’ was undesirable: certain ‘core issues’ would have to remain untouchable by the Union as part of the ‘national identity’. In doing so, the Member State would retain the ‘final say’ on those subjects. This is in accordance with the analysis of Monica Claes, who urges
15 Ratification of the Treaty on European Union: Prepatory Studies Vol. 8 France II, Doc. F-8, 745.
16 Jerome Vignon, ‘Nouvelles Compétences et Subsidiarité dans le Traité sur L’union Européene’ Journéé
D’etudes sur Maastricht et sa ratification , Assemblee Nationale 16 avril 1992. ‘L ‘Union européene, par ce principe de subsidiarité, devrait etre pas un dépossesseur des identités nationale… mais un démultiplicateur.’
17 Ratification of the Treaty on European Union: Prepatory Studies Vol. 4 Deutschland, Doc. D-7 271-272. 18 Ratification of the Treaty on European Union: Prepatory Studies Vol. 4 Deutschland, Doc. D-11, ‘entsprechend
dem Grundsatz ‘Einheit in Vielfalt’ die nationale Identität, Kultur und Lebensweise jedes Landes und jeder Region bewahrt und achtet’
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the importance of the ‘preservation of the Member States as independent states and the confirmation that the Union will not transform itself into a federal United States of Europe’.19
However, Claes takes the text of article F as reference to note that national identity was merely seen as the ‘political expression of the nation (the democratic system of government), which was accordingly not a reference to the national cultural identity’.20 The domestic debates show a different picture. During these debates, national identity was clearly linked to cultural aspects and not to the democratic structure of the State. ‘Letting the French remain French and the Germans remain German’, would form the aim of the national identity clause as it was introduced in 1992.
A first change occurred with the Treaty of Amsterdam of 1997. The ‘principles of democracy’ were abandoned, leaving simply the requirement that the ‘Union shall respect the national identities of its Member States’.21 It is not clear why this step was taken, yet there are
some hints to be found in the literature concerning this issue.22 First of all, the question of enlargement loomed over the deliberations in Amsterdam. Not all of the Member States were eager to embrace this development and instead insisted on safeguarding national prerogatives. They feared enlargement would lead to an increase of the Union’s competences and to a deeper European integration, which would go at the expense of domestic competences.23 This fits with the idea that the national identity clause was also a political message that the Union should be cautious in the harmonization process.24 As to the content of the clause, it should be noted that the removal of the ‘democratic principles’ further broadened the scope of the provision.25
The identity clause would surface again in the Constitutional Treaty in a separate article I-5, of which the text was copied into the Treaty of Lisbon.26 As such it was the ‘direct
19 Claes, ‘National Identity’ in National Constitutional Identity and European Integration 116. 20 Idem.
21 Article 6(3) Treaty of Amsterdam. Article 6 first set out the Union’s foundational nature in paragraph (1) ‘The
Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States.’
22 See Franklin Dehousse, Amsterdam: The Making of A Treaty (London, Kogan 1999), Bobby McDonagh,
Original Sin in A Brave New World: An Account of the Negotiation of the Treaty of Amsterdam (Dublin, Institute
of European Affairs 1998), Andrew Duff (eds.) The Treaty of Amsterdam: Text and Commentary (London, Federal Trust 1997) and Jörg Monar and Wolfgang Wessels (eds.) The European Union after the Treaty of
Amsterdam (London, Continuum 2001) for backgrounds on the Treaty.
23 Dehousse, Amsterdam: The Making of A Treaty 24-32.
24 Claes, ‘National Identity’ in National Constitutional Identity and European Integration 118.
25 R. Barents, Het Verdrag van Amsterdam (Deventer, Kluwer 1997) 29-30. This had of course been the issue
since 1992.
26 The Constitutional Treaty, article 1-5 read: ‘The Union shall respect the equality of Member States before the
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predecessor’ of the present article 4(2) TEU and moved from the notion of solely the ‘national identity’ as expressed in the Treaty of Amsterdam to a much more specific notion of a national identity, namely an identity ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. The drafting process of this provides some illuminating notions on the drafters’ intent concerning the position and meaning of national identity.27
The central aim of the provision was, in short, to safeguard Member States’ prerogatives by assimilating the notion of national identities with that of national competences. The working group set out to define certain ‘core competences’ of the Member States on which the Union could not encroach, or only in a very limited manner. Those areas would, as part of the national identities of Member States, have to be respected by the Union. In this sense, the clause was considered as a ‘general provision on the exercise of competencies’.28 One draft of the provision
made this connection quite clear, as it set out that ‘When exercising its competencies, the Union shall respect the national identities of the Member States, their constitutional and political structures including regional and local self-government and the legal status of churches and religious bodies’29
In this context, an exhaustive definition of what the national identity entailed was rejected. Instead, two broad areas of national competences were agreed upon: on the one hand the ‘fundamental structures and essential functions of a Member State’ as inter alia the constitutional structure, local self-government, the position of churches and national defense was placed under the umbrella of the national identity clause. On the other hand, ‘basic public policy choices and social values of a Member State’ such as social welfare, income distribution and cultural preservation and development were also seen as belonging to the ‘core’ competences of the Member States.30
In the end, these second aspects (the public policy choices and social values) were abandoned in the final wording of the provision, not because the basic public choices were no longer part of the core competences -and therefore of the national identity- of Member States,
constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security’.
27 Barbara Guastaferro, ‘Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the
Identity Clause’, Yearbook of European Law (2012) 263-318.
28 Guastaferro, ‘Beyond the Exceptionalism of Constitutional Conflicts’ 289. 29 Ibidem.
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but because another way of protecting these areas was found. Some of them were for example included in the Constitutional Treaty on their own, such as education, culture and social welfare policy. The Union could (and can) only carry out supporting measures, which consequently excludes harmonization in these areas. This did not mean the provisions stopped being a part of the national identity of the states: they were simply addressed as isolated issues.31
The urge to keep the national peculiarities safe was therefore already at the core of the provision when it was introduced in the Treaty of Maastricht: since its inception it has been seen as a message to the EU not to interfere with the issues the Member States thought to be of particular importance. The Union should thus not act too rash in the sphere of national identity and instead leave it up to the Member States to take measures in that context. In this sense, the national identity clause has always been perceived as a ‘brake’ on the integration process, where Member States may set out certain issues to be part of the own domestic ‘turf’. What was understood to be part of this 'national identity’ did change overtime: cultural aspects formed a constant factor, just as the underlying ‘anti-federal’ character of the clause, yet also basic policy choices would seem to be included in the concept of national identity after Lisbon.32 The urge to ‘let French be French and Germans be German’ captures the spirit of the article quite nicely. If anything, the EU should never deprive its Member States, France for example, of its ‘Frenchness’. Yet what does that mean? And who decides whether or not some provisions are part of this national identity? It is in these sensitive areas that the Bundesverfassungsgericht (BvG) threw the gauntlet at the ECJ in the form of its (in)famous Lisbon-judgement.
31 Ibidem.
32 As Leonard Besselink also noted, L. Besselink, ‘National and constitutional identity before and after Lisbon’
Utrecht Law Review Vol. 6 Nr. 3 (2010) 36-49. In this sense, the idea of Armin van Bogdandy and Stephan Schill,
who note that national identity should be seen as a political constitutional concept and not as a cultural concept which encompasses cultural, historical or linguistic criteria, seems a bit overdrawn. A. Von Bogdandy and Stephan Schill, ‘Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty’,
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Whose identity? Which identity?
The tensions underlying article 4(2) TEU came to the fore when the BvG decided to interpret it in its Lisbon judgment. Few judgements have attracted such an amount of scholarly attention as this judgement, albeit with good reason. The judgement sets out in detail the legal position of Germany in the European project, and shapes as such to an extent the possibilities of the European integration an sich. What is most important in the context of the national identity-clause however, is the fact that the BvG proclaimed itself as interpreter of article 4(2) TEU and in doing so constructed a connection between the concept of the national ‘constitutional identity’ and the ‘national identities of the Member States.’33
We have seen that national identity in EU-law served as a declaratory provision with anti-federal notions.34 Consequently, the exact content of the provision was undefined. The question was thus not just what the article would mean, but also who would be able to decide on it. This is a precarious question: it seems contradictory to the article itself when an European Court ventures into defining the national identity of a Member State, yet at the same time it is troublesome when a Member State sets out to define EU-law.35 In this context, the BvG, declared the following:
‘Apart from this, it must be possible within the jurisdiction to assert the responsibility for | integration if obvious transgressions of the boundaries take place when the European Union claims competences (…) and to preserve the inviolable core content of the Basic Law’s constitutional identity by means of an identity review (…) With progressing integration, the fundamental political and constitutional structures of sovereign Member States, which are recognized by article 4.2 sentence 1 TEU Lisbon, cannot be safeguarded in any other way. In this respect, the guarantee of national constitutional identity under constructional and the one under Union law go hand in hand in the European legal area.’36
This was new indeed. By stating that the ‘respect for national identities of the Member States’ as expressed in article 4(2) TEU went ‘hand in hand’ with the national ‘constitutional identity’, the BvG claimed in a way to have knowledge over the content and meaning of the national
33 It was precisely this connection that caught the interest of academics: studies on the ‘national constitutional
identities’ surged after the judgement. See Elke Cloots, National Identity in EU Law (Oxford, University Press 2015) 165 for a summary.
34 Although that statement can be nuanced: see the following passages on the position of the ECJ. 35 See also Besselink, ‘National and constitutional identity before and after Lisbon’ 44-45.
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identity clause. In a surprise move, the national identity clause in the European context turned out to be exactly the same as the own German constitutional identity! 37
Needless to say, this approach came with some major legal difficulties. Defining the own national identity is not the problem: describing the content of article 4(2) TEU as a specific notion of national identity (namely: constitutional identity) is the problematic aspect. Stating the two provisions go ‘hand in hand’ is not much different than defining national identity in article 4(2) TEU as constitutional identity. Such an approach would ultimately not just undermine the unity of Union law, but also deprive the ECJ of its standing as ‘final arbiter’ in EU law.
Moreover, the BvG attached some very serious consequences to this identity review. Should a provision of Union law violate the constitutional identity of Germany (and thus its national identity under article 4(2) TEU), a review of Union acts became possible on the basis
of domestic law, which might result in Union law being declared inapplicable by invoking a
rule of national constitutional law. This would consequently circumcise the absolute primacy of EU-law.38 The constitutional rule would then, in other words, acquire a ‘higher’ standing then the EU-norm.39 The BvG stated in this aspect that its identity review ‘ensures that the primacy of application of Union law only applies by virtue and in the context of the constitutional empowerment that continues in effect’.40
To make matters even more explosive, the BvG was not the only court resorting to constitutional identity as a means of safeguarding the own national identity. The French Conseil
Constitutionnel embraced the concept as well, albeit on somewhat different terms then the BvG
had done.41 More specifically, the Polish and the Latvian courts followed the same strategy as the BvG by claiming constitutional identity to form the ‘hard core’ of statehood on which the Union could not encroach, which had its European equivalent in article 4(2) TEU. Also in these
37 As the BvG had developed in the context of fundamental rights review: see the famous Solange I and Solange
II judgements. The content of this Constitutional Identity is closely tied up with the principle of democracy and
entails (arguably) fundamental rights, budgetary powers, the federal status of Germany, criminal law, use of force, social policy and decisions concerning family law, school and religious communities. Monica Claes and Jan-Herman Reestman, ‘The protection of National Constitutional Identity and the limits of European Integration at the Occasion of the Gauweiler Case’ German Law Journal (2015) 917-970, 925.
38 Bundesverfassungsgericht, BvE 2/08 (Lissabon) para 240-241. 39 Von Bogdandy and Schill, ‘Overcoming Absolute Primacy’ 1450-1454. 40 Bundesverfassungsgericht, be 2/08 (Lissabon) para. 240.
41 In France, the Constitutional identity seems to entail the provisions not included on a European level. See for
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courts, the national identity review and domestic constitutional identity review were thus placed on equal footing.42
Thus, the ECJ was faced with this potentially disruptive situation. Could domestic courts indeed interpret the identity clause on their own account? Dogmatically speaking, as a part of primary law, it is for the ECJ to decide whether a claim based on national identity is valid as a matter of EU law. However, as noted above, what is part of this national identity seems to be a matter for domestic courts. The provision thus requires a constant compromise between national concerns and European interpretation: although a member state may invoke a national identity argument, this will have to be scrutinized by the ECJ. In this sense, it is not possible for Member States to act unilateral and invoke national identity as a ‘shield’.43 It is more a ‘mirroring mechanism’, wherein the final decision lies with the ECJ,
which needs to take the proposals of the Member State duly into account.44
Two cases, O’Brien and Torresi, may help explain how the ECJ follows this mechanism.45 In the O’Brien case, concerning pensions of judges in the UK, the ECJ showed it had the last say in the matter.46 Here the Court simply noted that the ‘Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment’ (emphasis added).47 This is the
‘mirroring mechanism’, where the question if national identity is infringed upon is ultimately answered by the ECJ. The Court did not venture into the precise content of national identity, yet held that the EU-law in question did not infringe on the issue brought before it.
The Court went a bit further in the Torresi case. There, the ECJ decided that a directive concerning free movement of lawyers, which conflicted with an Italian constitutional rule which required lawyers to pass an Italian exam, was ‘not, in any event, capable of affecting the fundamental political and constitutional structures or the essential functions of the host Member
42 Constitutional Court of Poland, 20-11-2010 No. K 32/09 (Lissabon) section 3 and Constitutional Court of
Latvia, 07-04-2009, Case No. 2008-35-0 (Treaty of Lisbon). See for further information also the chapters on Germany, Poland and Latvia in L.F.M. Besselink, M. Claes, S. Imamovic and J.H. Reestman, National
Constitutional Avenues for Further EU Integration (Brussels: European Union 2014).
43 As Von Bogdandy and Schill argue it is, ‘Overcoming absolute Primacy’ 1440.
44 T. Konstandinides, ‘Constitutional Identity as a Shield and as a Sword: The European Legal Order within the
Framework of National Constitutional Settlement’ Cambridge Yearbook of European Legal Studies Vol. 13 (2011) 195-218, 206. Monica Claes, ‘National Identity: Trump Card or Up for Negotiation’ 112.
45 C-393/10, Dermond O’Brien v Ministry of Justice (2012). Joined Cases C-58/13 C-59/13 Torresi v Consiglio
dell’Ordine degli Avvocati di Macerata (2014).
46 The question was whether judges in the UK could be seen as ‘workers’ in the light of EU labor directives
97/81/EC and 98/23/EC.
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State within the meaning of article 4(2) TEU.’48 What is of particular importance here is that
the Court on the basis of its own evaluation decided a directive was not an infringement on the national identity of Italy, even though the Italian domestic court had hinted it thought this was the case. The ECJ decided otherwise, thereby ‘trumping’ the national interpretation: perhaps the national provision was not ‘fundamental’ enough? This confirms the notion that it is not for domestic courts to unilaterally invoke article 4(2) TEU, yet that this first has to be accepted by the ECJ.49
An appeal article 4(2) TEU is thus not always successful: it depends on whether the ECJ agrees a conflict between EU law and the national identity at stake exists. It therefore becomes important to take notice of the situations where the ECJ did accept the argument, and in which cases it rejected the notion. Which contents of national identity were accepted and which were not? We shall see that the interpretation of the BvG (and certain academics) of article 4(2) TEU as a ‘constitutional identity’, and as mainly concerned with the fundamental core provisions of statehood, is too narrow.50 Not just fundamental constitutional ‘structures’ are protected, the Court proves itself particularly sensitive for ‘historical-cultural’ arguments as well.
For apart from the ‘constitutional identity’, which, as AG Maduro set out in the
Michaniki case, ‘was clearly included in the national identity of the Member State’, article
4(2) TEU entails a lot more.51 Cultural aspects for example feature prominently in the invocation of the identity clause. One of the earliest examples of the acceptance of a national identity argument came in the area of language policy. The Groener case set the stage for subsequent acceptance of this element of national identity.52 The Court accepted in this case a
requirement for teachers to speak Irish as a means of ‘public policy’. As the Court observed, the requirement was ‘also to promote the use of Irish as a means of expressing national
48 Case C-58/13, C-59/13, para 53.
49 See for a further investigation into the Torresi case Roberto Mastroianni and Amedeo Arena, ‘Free
movement of lawyers and the Torresi judgement: a bridge too far?’ European Constitutional Law Review Vol. 11. Nr. 2 (2015) 373-388.
50 Preshova D., ‘Battleground or meeting point? Respect for National Identities in the European Union: Article
4(2) of the Treaty on European Union’ Croatian Yearbook on European Law 8 (2012) 267-298.
51 Case C-213/07 Michaniki Opinion Maduro para 31.
52 Case C-379/87 Anita Groener V The Minister for Education and the City of Dublin Vocational Education
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identity and culture’, which was as such not prohibited by the EEC Treaty.53 This line of
reasoning was further expanded in subsequent cases.54
The most important case in this aspect is the preliminary ruling on Lithuanian questions concerning the spelling of ‘Runvič-Vardyn’.55 The facts of the case may seem trivial, but stem
from deep historical tensions between the two states.56 Ms. Vardyn, a Polish woman with Lithuanian nationality had, after working some time in Poland, married Mr. Lukasz Pawel Wardyn,a Polish national. On the marriage certificate acquired in Vilnius, her name was consequently spelled in the Lithuanian way: that is ‘Vardyn’ instead of Wardyn, as according to the Lithuanian alphabet, the letter ‘W’ does not exist. Ms. Vardyn then submitted a request to the Vilnius Civil Registry Division in order to change her name into the Polish spelling which would amount to a change into ‘Runiewicz-Wardyn’.
The Civil Registry denied this request, after which proceedings were brought against this decision before the national court. There it was ruled the refusal was allowed, as allowing derogations concerning the spelling of the names in the Lithuanian alphabet would undermine the constitutional rule that ‘the State Language is Lithuanian’.57 The national court
consequently asked preliminary questions whether or not this language requirement amounted to indirect discrimination on nationality, whether it was compatible with article 18 (1) TFEU and article 21(1) TFEU (respectively the non-discrimination clause and the free movement clause).58
The Lithuanian government defended its position by invoking article 4(2) TEU. The national identity of the Lithuanian state, of which the national language was a part, was at stake in this case. The ECJ, following its approach in Groener accepted this as being a part of the national identity of Lithuania, and as covered by article 4(2) TEU. The national identity of Lithuania was thus at stake in this case, whereas Ms. Vardyn for her part could rely on her name as being ‘a constituent element of his identity and of his private life, the protection of which is
53 Case C-379/97 Groener, para 18,19. Such a policy should not however be disproportionate. 54 See for instance Case C-160/03 Spain v Eurojust (2005) and Case T-185/05 Italy, Spain and Latvia v
Commission (2008). While the case of Runivic-Vardyn is treated extensively, also Case C-202/11 Anton Las v PSA Antwerp NV (2013) belongs in this ‘language-type’ of cases.
55 Case C-391/09 Malgozata Runevič-Vardyn, Lukasz Pawel Wardyn v Vilniaus miesto savivaldybes
administracija and Others (2011).
56 For a long time a shared kingdom, the Polish and Lithuanians have more than a thousand years of common
history.
57 Article 14 of the Lithuanian constitution. 58 Case C-391/09, Runevič Vardyn, para 28.
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enshrined in article 7 of the Charter of Fundamental Rights of the EU and in article 8 of the ECHR’.59
By taking these elements into account, the ECJ created a distinction between the two kinds of identity at stake here: the private identity of Ms. Vardyn and the national identity of Lithuania. As the Court put it, it was for the national court to strike ‘a balance between the interests in issue, that is to say, on the one hand, the right of applicants in the main proceedings to respect for their private and family life and, on the other hand, the legitimate protection by the Member State concerned of its official national language and its traditions.’60 What is important to note here however, is that the Member State was again allowed to invoke its language policy as a part of its national identity, which consequently could be used to thwart claims which conflict with this official policy.61
However, it should be noted that the Court did not use article 4(2) TEU in complete isolation. In Runevič, the respect for national identity was addressed alongside articles 3(3) TEU and 22 of the EU Charter of Fundamental Rights for example, which strengthened the provision as such. As Theodore Konstadinides notes, the identity clause seems to be ‘used rather as a complementary justification next to a fundamental right’.62 This is not entirely convincing. The
opinion of AG Kokott, which concluded that the promotion of particular languages is closely linked to cultural diversity (article 3(3) TEU), can provide some guidance here. Respect for cultural diversity is, according to Kokott ‘ultimately an expression of the European Union’s respect for the national identities of its Member States.63 Seen in this view, national identity
actually precedes the notion of cultural diversity (and not the other way around, as Konstadinides seems to argue). Thus, article 4(2) TEU can very well be used on its own account, with or without the support of additional articles.
The identity clause was invoked in the context of other cultural fields as well.64 Luxemburg invoked the provision twice: once in order to defend a nationality requirement for teachers (to ‘transmit traditional values and … preserving Luxembourg’s national identity’) 65
59 Idem, para 66. 60 Idem, para. 91.
61 More on the exact consequences of invoking article 4(2) below.
62 Theodore Konstadinides, ‘The Constitutionalisation of National Identity in EU Law and its implications’
working draft, 5.
63 Case C-222/07 Union de Elevisiones Comerciales Asociadas (UTECA): Opinion of Advocate General Kokott
(2009) para 93.
64 Case C-473/93 Commission v Luxembourg (1996). Case C-51/08 Commission v Luxembourg (2011). 65 Case C-473/93 Commission v Luxembourg para 32.
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and once in defense of a language requirement for notaries (to defend the history, culture, tradition and national identity of Luxembourg).66 The Court did not address these questions into
detail, as it deemed the requirements to be disproportionate. However, it should be noted that it did state that the aim of Luxemburg to defend its identity was indeed ‘legitimate’, as also noted by Advocate General Poiares Maduro, adding to the thought that these cultural elements do fit into the notion of national identity.67
Apart from these cultural themed approaches, the Court’s ruling in Sayn-Wittgenstein is of particular importance here.68 The case dealt with the question whether an Austrian law, banning nobility in all its aspects, was in conformity with article 21 TFEU. The provision of the Austrian law forbade Fürstin von Sayn-Wittgenstein to bear her title (Fürstin) in Austria. Mrs. Sayn-Wittgenstein submitted that non-recognition of her title amounted to an obstacle of her freedom of movement, as she would have to use different names in different Member States. The Austrian government however, took the position that the law on abolishment of the nobility ‘intended to protect the constitutional identity of the Republic of Austria’. Any restrictions were thus justified in the light of the history and fundamental values of the Republic of Austria (emphasis added).69
The Court addressed the question head on: it stated that ‘it must be accepted that in the context of Austrian constitutional history, the law on the abolition of the nobility, as an element of national identity, may be taken into consideration…’70 This explicit notion to the
constitutional history of Austria can be seen as accepting this ‘historical argument’ of the Austrian government. Apparently special national historical paths traveled may lead to a certain context in which laws become part of the national identity of a Member State. According to the Court, this leads to the situation that ‘the Union is to respect the national identities of its Member States, which include the status of the State as a republic’.71
This constitutional history had already surfaced before in The Spain v UK case, concerning the extension of voting rights for the European Parliament to persons who were not
66 Case 51/08 Commission v Luxembourg para 124.
67 Case C-213/07 Michaniki AE v TEVEA Opinion of Advocate General Poiares Maduro (2008) para 31. Also the
fact the Court jumped immediately to the proportionality test (the ‘second’ step in the application of article 4(2) TEU) points in this direction.
68 Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann Wien (2010). 69 Idem para 74-75.
70 Idem para 83. 71 Idem para 92
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UK nationals, yet resided in Gibraltar.72 This extension was contested by Spain as this right to
vote should be reserved exclusively to EU-citizens. The UK defended its action by setting out the historical reasons why it had decided to grant voting rights to residents of Gibraltar. These actions should in the light of their history subsequently be seen as ‘constitutional traditions’.73
This line of reasoning was also defended by the Commission, which stated in this historical and traditional context that ‘although the concept of European citizenship is fundamental to the Union, the same applies to the Union’s commitment to respect the national identities of its Member States’.74
The Court did not address the issue of national identity as such, yet did uphold the position of the UK and ruled the extension of voting rights to be legal. It did explicitly refer (not once, but twice) to ‘the reasons connected to its constitutional traditions’ however, implying this factor was indeed taken into account.75 Taken together with Sayn Wittgenstein, it would seem that national constitutional history has turned into an noteworthy element of national identity as well.
Next to these instances in which an appeal on national identity was successful, the instances where the Court did not address issues as such deserve equal attention, as they show that not anything can be seen as belonging to ‘national identity’. A first thing to notice is the reluctance of the Court to accept ‘internal infrastructure’ arguments: in 2004 for example, Germany had filed for annulment of a decision of the Commission dealing with agricultural financial support.76 Germany held the Länder were autonomous regions with their own rules,
and should be treated accordingly.77 The German government stated therefore that the
Commission had infringed article 10 EC, which held that the Commission was required to act in good faith with regard to the Member States and to respect their legitimate interests. As the government put it: ‘This interpretation of article 10 EC is borne out by article 6(3) EU, which provides that the European Union is to respect the national identity of its Member States. Therefore, respect for the division of the Federal Republic of Germany into autonomous Länder
72 C 145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland (2006). Thus, these
residents were no European citizens
73 C-145/04 Spain v UK para 46. 74 Idem, para 58.
75 Idem, para 63 and79.
76 The Commission had noticed several deficiencies in administration in certain Länder, and ‘punished’ all
Länder afterwards, or so the German government stated.
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requires the Commission to refrain from taking decisions on financial corrections in respect of different Länder…’78
The Court did not follow the German government in this line of reasoning, By stating this was a question concerning the burden of proof, which applied ‘irrespective of the internal structure of a Member State’, the Court dodged the national identity argument of the German government.79 Thus, the German argument could not persuade the Court to take the federal structure of a Member State into account as part of the national identity of that State.80
Other ‘internal political rules’ were also not accepted by the ECJ. A further example of this reluctance is the (in)famous Rottmann case.81 Here, the Court had to deal with the removal of German nationality of a citizen, rendering him stateless. This would consequently result in the loss of his EU-citizenship as well. The matter seemed a domestic affair: Member States are allowed to regulate the conditions on nationality, and EU-citizenship is nothing but an ‘additional’ citizenship, dependent on the national citizenship.82 Advocate General Maduro
noted in his opinion that the deprivation of a person of nationality would therefore absolutely have to remain possible (although the conditions for loss of nationality had to be in accordance with EU-law).83 If not, this ‘would contravene the duty, imposed on the Union by article 6(3) EU, to respect the national identities of the Member States, of which the composition of the national body politic is clearly an essential element’.84
Citizenship is indeed an essential, maybe even the essential element of internal political rules of a state. It is therefore not surprising that, although the national identity argument was not stated as such, all the governments involved and the commission argued the rules on nationality fell within the exclusive competence of the Member States: citizenship is one of the fundamental aspects of the modern state. The Court however, did not follow the AG in his ideas. It did not mention article 6(3) TEU in its final judgement at all, but instead went on to explain
78 Case C-344/01, para 77.
79 Idem, para 59, 80. Compare the acceptance in Sayn Wittgenstein however, where the ‘republican’ status was
directly accepted as forming a part of national identity.
80 An approach which has not withered, even as regions have tried to acquire an independent standing by using
article 4(2) TEU. All these attempts have failed: see Case T-453/10 Northern Ireland Department of Agriculture
and Rural Development v European Commission (2012) and Joined cases T-267/08 and T-279/08 Région Nord-Pas de Calais and Communauté d’agglomération du Douaisis v Commission (2011).
81 C-135/08 Janko Rottmann v Freistaat Bayern (2010). 82 Article 20 TFEU.
83 Since the person involved had committed fraud in order to gain his German nationality, this was not an issue. 84 Case C-135/08 Opinion of Advocate General Poiares Maduro para 25.
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the importance of the European citizenship instead.85 This is an integrative approach indeed,
yet may not be very ‘respectful’ of the national identity as such, as it encroaches upon competences which were seen as highly national matters.86 As Gareth Davies notes, ‘tying
Union citizenship to national citizenship was not just an act of legal dependency, but also of legal colonialism’.87
Moreover, fundamental rights are not easily accepted as part of national identity as well. The Melloni case provides an example of this reluctance, where a Spanish constitutional norm came into conflict with European Law. 88 The Spanish constitution set out that a person judged
in absentia should always have the possibility to a retrial in the issuing Member State, whereas
this was not necessary by EU Law. Thus, a conflict was thus born, in which domestic law provided a higher level of fundamental rights protection than EU Law. Yet was this a case in which the Spanish national identity was at stake? The words of Advocate General Bot in
Melloni are worth repeating here: ‘In my view, a concept demanding protection for a
fundamental right must not be confused with an attack on the national identity or, more specifically, the constitutional identity of a Member State. The present case does indeed concern a fundamental right protected by the Spanish Constitution .. but that does not mean that the application of Article 4(2) TEU must be envisaged here’.89 The Court would follow his advice, and never mentioned the article in its judgement. Fundamental rights thus do not form a ‘one on one’ link with national identity.90
So far, what has been accepted by the ECJ as part of national identity? It’s a diverse and open basket, yet cultural elements seem to be more easily accepted by the ECJ.91 It quite clearly
85 Although it should be noted that article 6(3) was not directly invoked before the court, and therefore the
Court did need to rule on this issue. The idea of national identity does feature in this case however, which makes it a case with implications for national identity.
86 And thus precisely the kind of stuff article 6(3) aimed to safeguard. In this sense, the judgement is not in line
with the ‘spirit’ of the article.
87 D. Chalmers, G. Davies and G. Monti, European Union Law: Text and Materials (Cambridge, University Press
2014) 474.
88 Case C-399/11 Criminal Proceedings against Stefano Melloni Opinion of Advocate General Bot (2012). 89 Case C-399/11 Melloni Opinion of Advocate General Bot para 142.
90 The Omega judgment may be somewhat obscure in this context, where the Court accepted that certain
fundamental rights (such as the principle of human dignity), did not have to correspond to a conception shared by all member states in order to restrict the freedom of services.90 This opened the way for exceptions to the
normal application of EU-law based on the particularities of Member States. However, the Court did not frame the issue as a matter of national identity, leaving the position of fundamental rights as part of national identity still somewhat vague. Case C-36/02 Omega Spielhallen V Oberbürgermeisterin der Bundesstadt Bonn (2004).
91 This is of course a slightly premature analysis, as there have not been a lot of cases. However, together with
the history of the article, where culture was prominent from the start and the reluctance of the Court in
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accepted language as a part of the provision and the opinions of AG Maduro in the Michaniki and of Kokott in the UTECA case seem to imply a much wider acceptance of cultural elements as part of national identity. Along with the Court’s somewhat reluctant stance on ‘internal infrastructural’ arguments (citizenship and fundamental rights for example), and its susceptibility to the ‘historically colored’ argumentations in Gibraltar and Sayn Wittgenstein, this might ultimately lead to a situation which is less innocent than it seems.
This requires a small note on terminology: roughly speaking there can be made a distinction between two ‘types’ of nations namely the ‘civic’ and the ‘ethnic’ varieties.92 The
‘civic’ approach stresses the importance of citizenship, individual rights and the equal participation in the political community and has as such a somewhat ‘neutral’ or ‘open’ vision of the nation.93 Participating in the ‘public sphere’ becomes a defining aspect in this sense. The nation is in this civic nationalism the embodiment of what Renan dubbed the ‘plebiscite de tous les jours’, the expression of political commitment of the citizens to the project of the nation.94
The ‘ethnic’ nation is much more oriented on cultural aspects: common origin stories, a shared language, history geography and sometimes race form the cornerstones of this approach.95 As a consequence, this ethnic nationalism is of a more ‘closed’ character then the civic variety. Both approaches are, obviously, archetypes. In practice, the nation is conceived as a combination of the two elements, cultural and civic. Sometimes however, these two may be at odds with each other.96 Spain may exist as a state, with all the ‘civic’ elements of the ‘nation’ granted to its citizens, whereas the ‘ethnic’ nation is very much alive in Catalonia and the Basque areas.
By proving susceptible to these cultural elements (language and history), the Court might go down a path where a nation may legitimately defend its ‘culture’ against possible threats to that culture. Consider in this context also the Groener case: Irish, as part of the national identity, was worthy of protection vis-a vis other languages (especially English). In
92 T. Baycroft and M. Hewitson (eds) What is a Nation? Europe 1789-1914 (Oxford, University Press 2006) 3-10. 93 Examples of this style of the ‘nation’ include France, but most of all Canada. Everybody abiding to a certain
code of conduct can be part of the Canadian ‘nation’. See J. Leerssen, Nationalisme (Amsterdam University Press 2015) 46-48.
94 Ernest Renan, ‘Qu’est-ce qu’une Nation’ quoted in C. Huisen en G.Waling Wat is een Natie (Amsterdam
Elsevier 2013) 101 (although it has to be noted that Renan did not completely do away with the cultural aspect of the nation).
95 Best illustrated by the ‘Blut und Boden’ nationalism and other German Romantic ideas. Baycroft and
Hewitson, What is a Nation? 3.
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other words, the Irish nation (in fact a rather distinct group of people)97 was granted protection
against possible intrusion of ‘other’ elements.98
Moreover, such an approach might be more fitting to certain Member States than to others. It is noteworthy that an approach defining national identity in mainly cultural terms may not be equally applicable to all Member States. Some states adhere to a more civic variety of national identity, with a focus on shared citizenship for example.99 Whereas these states remain free to claim these provisions before the ECJ as part of their national identity, it cannot be forgotten that citizenship in particular has already become ‘Europeanized’ to an extent that Member States now duly need to take EU law into account in their citizenship policy. This is much less the case in the cultural aspects of national identity. This ‘divide’ in accepted provisions may ultimately lead to a situation where, despite the insurance of the ‘equality of Member States’ certain ‘ethnic’ identities are ‘more equal’ than others.
Yet, these notions only matter if there are actually legal consequences attached to invoking article 4(2) TEU. As we have seen wat is part of this clause and what is not, it is therefore vital to have a look at what happens after the ECJ has accepted the fact that national identity is at stake in a specific situation.
97 For who decides on a national ‘culture’? Arguably the nation itself, which in practice boils down to the
‘majority culture’ of that specific nation.
98 See for the further implications of such a ‘cultural defense’ Liav Orgad, The Cultural Defense of Nations: A
Liberal Theory of Majority Rights (Oxford, University Press 2015) 10-18. See for a discussion on the concept the
discussion on the ‘Verfassungsblog’ http://verfassungsblog.de/category/themen/cultural-majority-rights-debates/ (viewed 30-5-2016).
99 France is the best example in this context, with a focus on its ‘citoyens’ whereas Poland is much more prone
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‘Respecting’ national identity?
What then, is the result of an appeal on article 4(2) TEU? Some academics have indeed argued it forms a way for the national courts to ‘control’ legal integration and that it forms a way of overcoming the absolute primacy of EU law. 100 However, as we have seen, it is ultimately for the ECJ to decide how to value this article. In its endeavors, the ECJ has taken a cautious course. Between the Scylla of setting aside the primacy of EU law and the Charybdis of an European neglect of sensitive national interests, it has sought to create a middle ground by encapsulating article 4(2) TEU in a proportionality test. This has stripped the article of its most disruptive and explosive form: the cases in which the national identity clause has been invoked turn into somewhat ‘classic’ derogations from fundamental freedoms.101
This derogating option has been consequently accepted by the ECJ. Member State may use the clause to state matters of national importance which seem threatened by provisions of EU-law. As AG Maduro stated, ‘The Member state may, in certain cases and subject, evidently, to review by the Court, assert the protection of its national identity in order to justify a derogation from the application of the fundamental freedom of movement.’102 The Court has
accepted this use of the identity clause in some cases, most notably the earlier mentioned cases of Commission v Luxembourg, Runevič Vardyn and Sayn Wittgenstein. Within this option to derogate, two varieties may be discerned, namely the use of the identity clause as a legitimate aim in itself, and the use of the identity clause as interpreting existing possibilities, such as public policy, to derogate from internal market requirements.103
The use of national identity as an aim in itself was specifically addressed in Runevič
Vardyn. Here it was stated that article 4(2) TEU included protection of a State’s official national
language, which constituted ‘a legitimate objective capable of justifying restrictions on the
100 Besselink, ‘National and constitutional identity before and after Lisbon’ 44, Bogdandy and Schill,
‘Overcoming absolute primacy’ 1444. These authors argue in favor of such an approach.
101 Claes, ‘National Identity’ in National Constitutional Identity and European integration 112. Other options for
the use of article 4(2) TEU concern the review of Union acts themselves: this is a very rare issue however, which has to this day never happened. The challenging of Union acts thus still has to ‘prove’ itself before the ECJ, yet see the Opinion of AG Bot in Melloni: ‘A Member State which considers that a provision of secondary law adversely affects its national identity may therefore challenge it on the basis of article 4(2) TEU’ Case C-399/11
Melloni Opinion of AG Bot para 139.
102 Case C-213/07 Michaniki Opinion of AG para 32.
103 Ibidem. As Maduro states, ‘The Member State may first of all rely on it as a legitimate and independent
ground of derogation… The preservation of national constitutional identity can also enable a Member State to
develop, within certain limit, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement. See also Guastaferro, ‘Beyond the Exceptionalism of Constitutional Conflicts’ 35-45.
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rights of movement and residence provided for in article 21 TFEU and may be taken into account when legitimate interests are weighed against the rights conferred by European Union law.’104 In doing so, the ECJ has accepted article 4(2) TEU as an independent ground of
derogating from free market provisions: the national identity is worth protecting by virtue of its own strength.
A similar mechanism occurs when the identity clause is used as a means of interpreting grounds for derogation. The Omega judgement already provided some information on this technique: the Court here found that Member States had a certain discretion in deciding on how well a legitimate interest could protected, as it ‘was not indispensable for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest is to be protected.’105 This line of reasoning was expanded upon in Sayn Wittgenstein, where the
national identity invoked is ‘translated’ by the court into a reliance on public policy. A conception of public policy does not have to be shared by all Member States, and can thus take on different meanings in each state. National identity and public policy therefore become two sides of the same coin.106
Does it matter which path is chosen? Not for the ultimate standing in the proportionality test.107 Both approaches ultimately boil down to the very same test as both in Sayn-Wittgenstein (national identity as public policy) as in Runevič (4(2) TEU as independent ground) the exact same notion was used. As the Court set out: ‘measures which restrict a fundamental freedom may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to secure and only in so far those objectives cannot be attained by less restrictive measures.108
National identity thus comes to serve as an interest worthy of protection, which allows for restrictions on internal market clauses. National rules designed to protect this national
104 Case C-391/09 Runevič Vardyn para 87. The similar approach was in the UTECA case 105 Case C-36/07 Omega para 37.
106 ‘The justification relied upon by the Austrian government by reference to the Austrian Constitutional
situation is to be interpreted as reliance on public policy’ Case C-208/09 Sayn Wittgenstein para 84.
107 However, in a sense article 4(2) thus offers a ‘new’ ground of derogating from market provisions aside from
the classic approaches.
108 Case C-208/09 Sayn Wittgenstein para 90. Compare Runevič para 88: measures which restrict a fundamental
freedom, such as that provided for in article 21 TFEU may, however, be justified by objective considerations only
if they are necessary for the protection of the interests which they are intended to secure and only in so far as those objectives cannot be attained by less restrictive matters.
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identity therefore can be capable of restricting market freedoms.109 However, this protection
should be ‘proportionate’, and it is here that the Court performs its balancing act.
From the outset, it should be noted that this proportionality test gives article 4(2) TEU a highly casuistic character. It is for the ECJ to balance certain interests against each other, which are different, depending on the circumstances of the case. However, the Court has acted in a remarkable way confronted with the issue, as it confirmed its position as an ‘integrationist court’, by applying an ‘easier’ proportionality test in cases concerning freedom of movement and residence (21 TFEU) then it did in cases dealing with the more ‘economically’ colored free movement of workers (45 TFEU).
In both the Sayn Wittgenstein as the Runevič cases, derogations concerning article 21 TFEU were at stake, and it would seem the court applied a highly marginal proportionality test in these cases. In Sayn Wittgenstein, it stated directly after noting the respect for national identity includes respect for the status of the State as a Republic that the measure was not disproportionate, nor did the measures of the Austrian government go any further then was necessary in order to ensure the attainment of the fundamental constitutional objective.110 It did not even question (as it usually does) whether there were alternative ways which would be less restrictive, which ultimately resulted in an ‘extremely thin’ proportionality test. 111 In Runevič
then, the Court left an important and quite wide margin of discretion to the Lithuanian Court to decide on the proportionality test. This rather flexible proportionality test may stem from the sensitivities the national identity clause touches upon, and seems to lead (at least in article 21 TFEU cases) to a relative reluctance of the Court to trump these issues.
However, this does not mean article 4(2) TEU is always that easily accepted as a way to derogate from EU law. In cases dealing with the free movement of workers, the Court acts in a different way. In the line of cases concerning the attempts of Luxemburg to derogate from article 45 TFEU, the Court did address the issue of other, less restrictive ways. Although accepting the legitimate aim of Luxemburg to defend its national identity, these appeals all failed as the interest ‘could still be effectively safeguarded otherwise than by a general
109 Case C-391/09 Runevič para 87.
110 Case C-208/09 Sayn Wittgenstein para 92-93.
111 As also noted by Besselink, ‘Case Note Sayn Wittgenstein’ Common Market Review Vol. 49 No. 2 (2012)
