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Constitutional conflict

An analysis of the conflicting claims to final authority in the doctrine of

national constitutional identities in the European legal order and of

the ways to resolve it

W.W.P. Damen 10906290

Master Thesis Staats- en bestuursrecht University of Amsterdam

Supervisor: dr. Jan-Herman Reestman (& prof. dr. Leonard Besselink) Brussels, 25th of August 2017

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Abstract

The purpose of this thesis is to analyse the conflicting claims to final authority in cases of ‘national constitutional identity’ in the European legal order – and to explore different ways in which this conflict can be resolved. Whenever ‘national constitutional identity’ is concerned, be it through art. 4(2) TEU or through Member-States’ constitutional law doctrines, both the Court of Justice of the European Union and its Member-States claim the last word. This means both claim the highest authority in these matters in a mutually exclusive way. This thesis takes a closer look at this ‘constitutional deadlock’ and

analyses various legal and political theories that seek to resolve it. To this end, it engages with the following four theories: that of ‘liberal nationalism’, of ‘federalism as constitutionalism’, of ‘cosmopolitan constitutionalism’ and of ‘constitutional pluralism’. Following an in-depth discussion of the merits and the drawbacks of different strands of these theories, it is argued that several of them are to be discarded as viable solutions to the problem of constitutional deadlock in the European legal order. It is argued that the scholarly attention for the problems of European constitutional law ought instead to be focussed on the remaining theories.

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Contents

1. Introduction 3

2. A note on concepts and definitions 14

3. Liberal nationalism 26 4. Federalism as constitutionalism 33 5. Cosmopolitan constitutionalism 39 6. Constitutional pluralism 54 7. Conclusion 68 8. Bibliography 75

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Chapter 1. Introduction

1.1 Introduction

To the untrained eye, newspaper headlines have little to do with the arena where European Union (EU) law meets national constitutional law. More often than not, however, events of great political importance covered in the news take place at exactly this legal crossroad. The UK’s triggering of article 50 of the Treaty on the European Union (TEU), initiating the United Kingdom’s imminent leave of the EU, for example. Two key arguments of the ‘Leave’ campaign were “taking our country back”, and restricting immigration – thereby targeting two values deemed fundamental to the European project: the transfer of power to, and the freedom of movement within, the EU. Another example is the ongoing conflict between the European Commission and both Poland and Hungary regarding their alleged failure to safeguard constitutionalist values such as democracy and the rule of law (possibly leading to the triggering of art. 7 TEU).1 To this can be added the refusal of multiple Member-States to implement EU regulations concerning the relocation of refugees – some arguing this would violate its national identity (as Hungary does).2

These are all examples of the continuous skirmishes between national

constitutional law and EU law, and it is precisely this point of intersection of both legal orders which is the main subject of this thesis. This first chapter will outline the legal

1 ‘European Commission launches infringement against Poland over measures affecting the judiciary’ –

Press release European Commission 29th of July 2017. Cf: Commission Recommendation of 21.12.2016

regarding the rule of law in Poland, C (2016) 8950; L.F.M. Besselink, ‘The bark, the bite, the howl. Article 7

TEU and the Rule of Law initiatives’, Amsterdam Centre for European Law and Governance research paper (2016).

2

s.a., ‘Paris: Philippe Goujon dénonce l’installation de migrants dans son arrondissement’, Le Monde 19th of August 2017; speech by Viktor Orbán before the European Parliament, 26th of April 2017, available on: http://www.miniszterelnok.hu/prime-minister-viktor-orbans-speech-in-the-european-parliament/ [21th of August 2017 14:55]; BBC World, ‘Migrant crisis: EU plans penalties for refusing asylum seekers’, 4th of May 2016 (http://www.bbc.com/news/world-europe-36202490 [01-03-2017, 14:30h]); speech by Viktor Orbán, 7th of September 2016, Krynica (Poland), available on: http://www.kormany.hu/en/the-prime- minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-acceptance-speech-after-receiving-the-person-of-the-year-award [14-04-2017, 10:30h]; Hungarian Constitutional Court ruling 30th of November 2016, available on: http://hunconcourt.hu/letoltesek/en_22_2016.pdf [12th of August 2017, 8:25].

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arguments that both sides deploy in these struggles and will single out one doctrine in which this conflict is especially urgent.

1.2 Principles of EU law and Member-States’ resistance

In contrast to most other norms of constitutional law, several crucial elements of EU law have not been established by the Member-States by means of treaties, but by the Court of Justice of the European Union (ECJ) in its case law. Beginning with the direct effect of (then) Community law and the assertion that the European legal order is autonomous and cannot be overridden by national law, subsequent case law extended the reach of EU law even further. Eventually stating that even Member-States’ constitutional norms cannot override EU law, that national law of a later date cannot derogate from it and that one should rather look for analogous guarantees in EU law itself.3

Although these were audacious assertions, they met with remarkably little resistance from the Member-States. With regard to one aspect of EU law, however, several Member-States did oppose the sweeping claims of the ECJ: the idea that

national law could not derogate from EU law even if it concerned fundamental norms of their constitutional order. When these matters are concerned, various national

constitutional courts rejected two elements of the ECJ case law in particular.

The first of these, is the notion that the European legal order is autonomous and has its foundation in the European treaties. Rejecting the ECJ’s claim that the validity and applicability of EU law is autonomous, various Member-States instead argue that EU law emanates from provisions in their national constitutions.4 The submission to the legal régime of the EU in France, for example, is considered to be subject to article 88 of

3

Chronologically, as well as in order of appearance: ECJ, Van Gend & Loos v. Nederlandse Administratie

der Belastingen, ECLI:EU:C:1963:1 (Direct effect); ECJ, Flaminio Costa v. E.N.E.L., ECLI:EU:C:1964:66

(Autonomous legal order, which cannot be overriden); ECJ, Internationale Handelsgesellschaft mbH v

Einfuhr- und Vorratsstelle für Getreide und Futtermittell, ECLI:EU:C:1970:114 (Not even national,

constitutional rights can override EU law and “analogous guarantees”); ECJ, Amministrazione delle Finanze

dello Stato v Simmenthal SpA, ECLI:EU:C:1978:49 (No derogation by posterior national law).

4

S.E. Finer, V. Bogdandor, B. Rudden, Comparing constitutions (Oxford 1995) 23 - 32; D. Grimm,

‘Defending sovereign statehood against transforming the European Union into a state. Comments on the Lisbon Judgment of the Federal Constitutional Court’, EuConst, 5, (2009) 341 – 344; L.F.M. Besselink, M. Claes, S. Imamovic, J. H. Reestman, National cosntitutional avenues for further EU integration (Brussels 2014).

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the French constitution; the article that mandates France’s participation in the European Union.5 Similarly, the legal effect of EU law in Germany is channelled through art. 23 (jo. 24) of the Grundgesetz (GG), in Italy through art. 11 of the Italian constitution, and in the United Kingdom through the 1972 European Communities Act (and the 2011

European Union Act).6 These mechanisms funnel EU law through national constitutional law and have grave consequences for the validity and applicability of EU law in these Member-States – which leads us to the second element of EU law that national (constitutional) courts reject.

This second objection raised by Member-States’ institutions concerns the

principle of the primacy of EU law. Whereas the ECJ claims that the primacy of EU law is nearly absolute, surpassing not only ordinary national statutes but even their

constitutional law, various Member-States have developed doctrines that counteract

these claims. These doctrines, which seek to offset the influence of European law vis-à-vis national constitutional law, all centre around the same notion: that European legislation needs to be warded off wherever it touches upon elements of national constitutional law that the Member-State deems fundamental.

One such doctrine is the Italian constitutional court’s concept of controlimiti, which is employed to safeguard fundamental principles of the Italian legal order against the primacy of EU law. As mentioned earlier, the Italian constitutional court bases the applicability of EU law in Italy on article 11 of its constitution. This article allows for the limitation of Italy’s sovereign rights in the name of international cooperation.7 This limitation, however, is itself restricted to certain subjects: art. 11 of the Italian

5 Art. 88-1 of the French constitution: “La République participe à l’Union européenne constituée d’États qui

ont choisi librement d’exercer en commun certaines de leurs compétences en vertu du traité sur l’Union européenne et du traité sur le fonctionnement de l’Union européenne, tels qu’ils résultent du traité signé à Lisbonne le 13 décembre 2007.” – available on

http://www.assemblee-nationale.fr/connaissance/constitution.asp#titre_15 [24th of July 2017, 14:55].

6

Besselink e.a., National constitutional avenues, 111 – 125, 147 – 157, 183 – 197.

7 Article 11 of the Italian Constitution stating: “Italy rejects war as an instrument of aggression against the

freedoms of others peoples and as a means for settling international controversies; it agrees, on conditions of equality with other states, to the limitations of sovereignty necessary for an order that ensures peace and justice among Nations; it promotes and encourages international organizations having such ends in view.” – available on: https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf

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constitution (IC) only accepts limitations “that may be necessary to a world order

ensuring peace and justice among the Nations.”8 It is for this reason that the doctrine is

called controlimiti: the Italian constitutional court has formulated ‘counterlimits’ to the limits that international cooperation can impose upon Italian (constitutional) law through art. 11 IC. The restrictions that can be placed on the sovereign rights of Italy, cannot transgress these controlimiti. This means, following the substantiation of these

controlimiti by the Italian constitutional court, that EU law can never go so far as to

violate fundamental and supreme principles of the Italian constitutional order, because this would be a violation of the manoeuvring space offered by article 11 IC.9

Like the Italian constitutional court, the German Bundesverfassungsgericht (BVG) too has raised a legal barrier to shield off specific elements of its national constitutional law from the primacy claims of the ECJ. Arguing that the applicability of EU law in the German legal order emanates from art. 23 GG, the established case law of the BVG declares the primacy of application of EU law to be limited by this article of the

Grundgesetz.10 The result of this doctrine of German constitutional law is that, although EU law is granted a principled primacy of application, it is not granted primacy of

application in cases where this would lead to a violation of fundamental rights that are guaranteed by the German constitution.

Clear examples of the BVG warding off German constitutional provisions against the absolute primacy of EU law can be seen in the court’s case law regarding

fundamental rights protection. In the past decades, the BVG has signalled its discontent about the ease with which the ECJ seemed to bypass certain human rights.11

Consistently arguing that the primacy of EU law can result in an undermining of German

8

English translation of art. 11 Italian constitution, as presented by the official website of the Italian Senate: https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf [24th of July, 16:10].

9

Italian Constitutional Court, Sentenza n. 183, 18th of December 1973 (Frontini); Italian constitutional court, Sentenza n. 170, 5th of June 1984 (Granital).

10

BVG judgment of 30th of June 2009, BVerfGE 123, 267, NJW 2009, 2267 (“Lissabon Urteil”); BVG judgment of 15th of December 2015, § 36 (“Solange III” / “Verfassungsidentität I”).

11 BVG judgment of 22nd of October 1986, BVerGE 73, 339 (“Solange II”); BVG Lissabon Urteil; BVG

judgment of 7th of June 2000, BVerfGE 102, 147 (“Bananas”), BVG judgment of 15th of December 2015 (“Solange III” / “Verfassungsidentität I”).

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constitutional provisions, it chose to deviate from the ECJ’s conception of the primacy of EU law over fundamental rights protection. This resulted in the ECJ suddenly

‘discovering’ that in the EU legal order, too, fundamental rights protection might provide a legitimate barrier to the primacy of EU law.12

Following concessions of the ECJ, the opinions of the BVG and the ECJ largely converged. For example, it stated its willingness to interpret cases before it in a “manner open to

European law”.13 The BVG did not, however, accept the primacy of EU law wherever they judged it to touch upon the German Verfassungsidentität (e.g. the German constitutional commitment to human dignity). The result is that the court declared, when adjudicating cases revolving around fundamental rights protection, it would no longer solely apply the German legal standard, so long as (hence: “solange”) the protection of fundamental rights under European law remained both effective and substantially similar to that guaranteed by the Grundgesetz.14 This assimilation of each other’s case law resulted in the BVG granting the ECJ the power to authoritatively interpret EU law, but retaining the power to declare EU law in conflict with provisions of the German constitutions – denying EU law primacy in those areas of German

constitutional law.15 Both the Italian constitutional court and the BVG, therefore, have raised a legal barrier which protects those elements of their national constitutional law they deem fundamental against the ECJ’s claims of the primacy of EU law.

12

J. Coppel, A. O’Neill, ‘The European court of justice: taking rights seriously?’, Legal Studies 12, 2 (1992) 227 - 242; C. Costello, ‘The Bosphorus ruling of the European Court of Human Rights: Fundamental rights and blurred boundaries in Europe’, Human Rights Law Review 6, 1 (2006) 89 - 98; D. Sarmiento, ‘Who's Afraid of the Charter; The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’, Common Market Law Review, 50 (2013) 1267 – 1304.

13

J. Ziller, ‘Zur Europarechtsfreundlichkeit des deutschen Bundesverfassungsgerichtes. Eine ausländische Bewertung des Urteils des Bundesverfassungsgerichtes zur Ratifikation des Vertrages von Lissabon’,

Zeitschrift for öffentliches Recht 157 (2010).

14

K.D. Makowski, ‘Solange III: The German Federal Constitutional Court’s Decision on the Accession to the Maastricht Treaty on European Union’, University of Pennsylvania Journal of International Law, 1, 16 (1995); J. Ziller, ‘The German Constitutional Courts Friendliness towards European Law’, European Public

Law Journal 16, 1 (2010); Mathias Hong, ‘Human dignity, identity review of the European Arrest Warrant

and the Court of Justice as a listener in the dialogue of Courts: Solange-III and Aranyosi’, EuConst, 12 (2016) 549 – 563’.

15

Speech delivered by Andreas Voßkuhle at the IIEA conference, 28th of October 2014, available on: https://www.youtube.com/watch?v=z7TgbG5JdTY [23th of July 2017, 8:35].

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8 1.3 The doctrine of national constitutional identity in light of this conflict

Since the Treaty of Maastricht, the European treaties themselves also mention key features of national constitutional law – thereby making it part of European law. The current art. 4(2) TEU states that:

“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.”

One might expect that this article solved the discrepancy between the Member-States’ defence of fundamental elements of their constitutional law and the ECJ claim to the primacy of EU law.16 This has not been the case. As we shall see, there are

considerable differences between the ECJ’s case law regarding national constitutional identities and Member-State doctrines to protect fundamental features of their

constitutional law. Even more importantly, because these differences are deeply rooted in the constitutional structures of the legal orders, these discrepancies give rise to conflicting claims on the conceptual level about who has the final say.

In order to paint the picture of these conflicting claims to final authority in the doctrine of NCI, we will first discuss the ECJ’s case law concerning national constitutional identities. This will be followed by an analysis of Member-States’ reactions to this case law.

ECJ case law

The first post-Lisbon case in which the ECJ applies the national constitutional identity clause of 4(2) TEU is Sayn-Wittgenstein. In this case, an Austrian (adult) citizen had been adopted by a German national and she consequently used her new, German surname. This surname, however, bore the noble title “Fürst(in) von Sayn-Wittgenstein”.

Following the abolition of the nobility during the Weimar Republic, hereditary titles such as these became part of one’s surname in Germany. In Austria, however, the bearing of titles of nobility has been prohibited completely.

16

L.F.M. Besselink, ‘National and constitutional identity before and after Lisbon’, Utrecht Law Review, 6, 3 (2010) 40 – 45.

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Abiding by a ruling of the Austrian Constitutional Court banning the use of such ‘imported’ German titles of nobility in Austria, the Landeshauptman of Vienna

announced in 2007 that it was going to change “Ilonka Fürstin von Sayn-Wittgenstein” to “Ilonka Sayn-Wittgenstein” on all the “princess” her official civil documents. Ilonka, who for years had been living in Germany but worked in the high-end real-estate business in both Germany and Austria, brought an action against this proposed change in her civil registration. She claimed her freedom of movement was at stake, because she would have to use different surnames in both countries. Changing her name would cause such inconveniences that the measure was disproportionate and therefore a violation of her freedom of movement. In its defence, the Austrian authorities argued against this claim, arguing that only a small part of the name would be dropped - the most significant denominator remaining unchanged. Furthermore, they argued that this minor

inconvenience ought not to weigh up to the significance of Austria’s abolition of nobility – a ban that is enshrined in its constitution and that, in the proceedings, was presented as a key part of its constitutional identity.

The ECJ first considered whether or not there had been an infringement on the right to freedom of movement. It argued that, even though all her official documents had been issued by Austria, and would thus show the exact same name, the trouble the

Fürstin would have to go through to change this documentation nonetheless resulted in

“serious inconvenience” - and thus in a restriction of her freedom of movement under EU law.17 The Austrian administration, however, had argued that the abolition of titles of nobility “protects the constitutional identity of the Republic of Austria”, and that bearing such titles “is incompatible with the fundamental values of the Austrian legal

order, in particular with the principle of equal treatment enshrined in Article 7 of the Federal Constitutional Law”.18 Austria here invoked Art. 4(2) TEU, demanding EU law

“respect” its national identity as is inherent in its constitutional structures. Crucially, the

ECJ here states that this question of ‘respecting national identity’ entails a

17 ECJ judgment C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien (“Sayn-Wittgenstein”),

§60 – 70.

18

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proportionality review.19 The court points out that “an obstacle to the freedom of

movement of persons can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the national provision”.20

In this case, the ECJ stated that Austrian authorities “do not appear to have gone

further than is necessary in order to ensure the attainment of the fundamental

constitutional objective pursued by them.”, and thus changing Ilonka’s surname to

Sayn-Wittgenstein “cannot be regarded as a measure unjustifiably undermining the freedom

to move and reside enjoyed by citizens of the Union.”21

The ECJ confirmed this proportionality review in subsequent case law. In

Runevic-Vardyn, pertaining to national language laws in Lithuania, the ECJ applied the same

review, stating that national acts which cause “serious inconvenience” can constitute a restriction on free movement, which can then only be justified “where it is based on

objective considerations and is proportionate to the legitimate objective of the national provisions”.22 It is of key importance to note that the proportionality review that the ECJ applies, centres on the idea that the court makes a judgement about whether or not a just balance has been struck between protecting the national constitutional identity on the one hand, and the deviation from EU law on the other. The type of review the ECJ applies when faces with the doctrine of NCI is therefore in line with its classic

proportionality review, in which restrictions on the fundamental freedoms can “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 measures”.23

19 This is largely in line with the ECJ’s pre-Lisbon case law on similar matters, such as the Omega

Spielhallen case: ECJ judgment C-36/02, Omega Spielhallen- und Automatenaufstellungs GmbH v. Bundesstadt Bonn, ECR I-9609.

20 Sayn-Wittgenstein, §81. 21

Sayn-Wittgenstein, § 93 – 95; L.F.M. Besselink, case note of Sayn-Wittgenstein, Common Market Law

Review, 49 (2010) 689 – 693.

22 ECJ judgment C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto

savivaldybės administracija and Others (“Runevic-Vardyn”), §76 – 87.

23

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To the ECJ, the reason for applying this proportionality review to Member-States’ acts is clear. Because it falls within the jurisdiction of the ECJ to judge whether or not Member-States act in accordance to EU law, and art. 4(2) TEU is EU law, the ECJ is allowed to judge whether or not Member-States’ acts remain within the boundaries of the

provision of art. 4(2) TEU. This results in the situation that, whenever a Member-States defends itself before the ECJ and invokes fundamental norms of its national constitution in its defence, the court will pass judgment on whether or not this appeal to national constitutional identity can pass its proportionality review. This way, the ECJ claims the final authority to decide on the way in which Member-States’ legal norms, even those which Member-States themselves may deem fundamental to their national

constitutional identity, can stand in the way of EU law. Although it may be clear to the ECJ why it is entitled this final say, its doctrine clearly conflicts with the various Member-States’ safeguarding-mechanisms discussed before. As is clear from the German and Italian case law, the core of the concept of national constitutional identity to them is the idea that fundamental parts of their legal order are shielded from EU law incursions. Making them subject to a proportionality review, as the ECJ does, therefore clearly conflicts with the doctrines of the Member-States. To them, fundamental elements of their constitutional order are out of bounds for the EU, and therefore also for an ECJ that wants to form a judgment about the balancing of interests.

Bundesverfassungsgericht case law

Examples of the way in which the theoretic basis of the authority of the ECJ runs counter to that of the BVG: that of 16th of June 2015 (“Gauweiler”), and that of 15th of December 2015 (“Solange III”). In the latter case, the BVG repeats its claim that the precedence of EU law is valid in Germany only because of its channelling through art. 23 jo. 79 GG. The BVG spells out clearly how this article restricts the scope of EU law in the German legal order: “the precedence of application of European Union Law is limited by the

constitutional principles that are beyond the reach of European integration

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GG”.24 The consequence of this circumscription of EU law, is that the BVG reserves for itself the power to decide whether or not legal norms form part of the German

constitutional identity and can therefore be shielded from the primacy of EU law. In this particular case, the BVG identified certain safeguards of criminal procedural law as part of Germany’s constitutional identity pursuant to art. 1 GG (the respect for human dignity). The result is that it subsequently allows for cases in which a European Arrest Warrant surrender request can be refused – blocking the primacy of this field of European law in an area of law it considers fundamental to the German legal order.25

Secondly, in the Gauweiler case, the BVG also makes it clear that the ECJ cannot be granted the final authority in matters concerning national constitutional identity. Arguing that, because art. 79 (jis. 1, 20, and 23) GG presents clear and absolute limits to the applicability of EU law in the German legal order, these provisions can never be balanced against other legal interests.26 Furthermore, the authority to interpret the provisions of these articles is that of the BVG alone. For these reasons, the court concludes that the concept of ‘constitutional identity’ that it has employed in its case law is fundamentally different than the ‘respect for national constitutional identity’ of art. 4(2) TEU. The BVG therefore categorically states that the final authority to decide on fundamental elements of the German constitutional order, and its relationship to EU law, can never be vested in the ECJ and its proportionality review.27

1.4 Conclusion

The conceptual routes taken by the ECJ and by (constitutional courts of) Member-States when dealing with matters of national constitutional identity, therefore, differ

significantly. The result is a conflict between the claim as to who decides on matters of

24 BVG judgment 15th of December (Solange III / Verfassungsidentität I), §36 and §41 – 44. 25

J.H. Reestman, L.F.M. Besselink, ‘Editorial: Sandwiched between Strasbourg and Karlsruhe: EU fundamental rights protection’, EuConst, 12 (2016) 215; BVG, 15th of December 2015, §. 36: “This in

particular encompasses the principles contained in Art. 1 GG, including the principle of individual guilt in criminal law, which is rooted in the guarantee of human dignity (3.)”.

26

BVG, Case C-62/14, Peter Gauweiler and Others v. Deutscher Bundestag, 16th of June 2015 (“Gauweiler”), §28 – 29.

27

M. Claes, J. H. Reestman, ‘The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case’, German law journal, 16, 4 (2015) 932.

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national constitutional identity. Whenever this identity is concerned, be it through art. 4(2) TEU or through fundamental elements of Member-States’ constitutions, the European constitutional constellation clearly faces a serious problem with both the ECJ and Member-States’ constitutional courts claiming final authority.

Because it is unlikely that either the constitutional systems of the Member-States or the European legal order will resolve this conflict anytime soon, this constitutional deadlock looks inherent in the current European order.28 The result, therefore, is a composite constitutional structure in which multiple legal actors claim final authority - in mutually exclusive ways.29

It is the aim of this study to explore various legal and political theories that seek to solve this problem. The remainder of this thesis will therefore analyse and discuss four legal- and political theories, each of which seeks to provide answers to the problem of the incommensurability of the ECJ’s and Member-States’ conceptions of NCI. All four of the theories discussed will be related explicitly to the doctrine of national

constitutional identity in the European legal order – hoping to provide pointers to alleviate its troubled position. These are ‘liberal nationalism’, ‘federalism as constitutionalism’, ‘cosmopolitan constitutionalism’ and ‘constitutional pluralism’. Before we discuss these four theories more elaborately, however, the next chapter is concerned with the core concepts and definitions of these theories. Following this conceptual clarification, each subsequent chapter will focus on one of the four theories.

28

M. Claes, ‘National identity: trump card or up for negotiation?’ in: A. Saiz Arnaiz, C. Alcoberro Llivina (eds.), National constitutional identity and European integration (Cambridge 2013) 130 – 138.

29 L.F.M. Besselink, Een samengestelde Europese constitutie (Utrecht 2007) 1- 12; J.H.D. Stone, ‘Agreeing

to disagree: the primacy debate between the German Federal Constitutional Court and the European Court of Justice’, Minnesota journal of international law, 25 (2016) 127 – 167.

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Chapter 2. A note on concepts and definitions

2.1 Introduction

The key concern of this study is exploring ways in which the conflicting claims to final authority in national constitutional identity cases can be reconciled. Because of this subject matter, the theories that will be discussed all revolve around the notion of resolving conflicts between distinct legal orders. The largest, and most relevant, body of literature on this topic is that of “constitutionalizing” or “pluralizing” international law in which states participate, because within this framework the coalescence of legal orders is most obvious. It is this theoretic framework that will be applied when analysing the solutions to the conflicting assertions of final authority of the ECJ and Member-States in the field of national constitutional identity.

Unfortunately, the scholarly literature on “international constitutionalism” and

“international (constitutional) pluralism” is vague and rife with contradictory definitions,

which has resulted in a scholarly field in which few commentators actually engage with one another’s arguments. For the sake of clarity, therefore, this chapter will first discuss the general outline of the theory of international constitutionalism. Following this outline is a brief discussion of the concepts of constitutionalism and pluralism, specifically focussing on the way they have been used in the context of international constitutional law. After this discussion, a critique of the theory is offered. This chapter therefore focusses mainly on clearing the conceptual ground. Chapters 3 to 6 will analyse the four theories that attempt to solve the problems facing the doctrine of national constitutional identity in the EU.

2.2 The concept of international constitutionalism

The central hypothesis of international constitutionalism is that the ‘political theory’ of constitutionalism, as applied within the sovereign states, is a great achievement which consolidates the successes of 19th- and 20th-century political theories. Applying this theory to international legal regimes would improve the Westphalian system in

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the following accounts.

Firstly, introducing constitutional safeguards, such as fundamental rights protection, in the international legal order would short-circuit national governments’ arguments that international law guarantees fewer rights than their national

constitutions. National (constitutional) courts can no longer resort to national

constitutional law and its rights protection, when the international legal regime in which the state operates equally ensures the protection of these rights. This undermines one of the most important arguments courts have for the invocation of national

constitutional law in the face of (perceived) international obligations and would thus remove one of the obstacles for the accession of states to international legal regimes.30 Additionally, the international organizations concerned (e.g. the European Union, the United Nations etc.) would see an increase in their perceived legitimacy as soon as they conform their legal regimes to the demands of constitutionalism.31 To take the example of fundamental rights protection, the “So lange” case law of the BVG mentioned before has lead the ECJ to start reviewing EU acts for their consistency with such rights. This changed the face of the entire European legal project significantly by also including fundamental rights protection.32

Secondly, its proponents claim the constitutionalization of international regimes will better equip (national) constitutional democracies in their fights against global threats, such as Islamic terrorism, climate change, and the corrosive effects of 21st century capitalism, by moving away from the ‘Westphalian’ international order. This international legal order is built on the notions that sovereign states are the sole and exclusive bearers of power within their territories, that they are all considered equal in

30

S. Gardbaum, ‘Human rights and international constitutionalism’, in: J.L. Dunoff, J.P. Trachtman (eds.),

Ruling the world? Constitutionalism, International law, and global governance (Cambridge 2009) 233 -

258; A. O’Donoghue, Constitutionalism in global constitutionalisation (Cambridge 2014) 14 – 54.

31

M.W. Doyle, ‘The UN Charter – a global constitution?’, in: Dunoff, Trachtman (eds.), Ruling the world, 113 – 133.

32

It should be said that this study does not deal with the concept of human rights, its legitimacy, or its perceived ethnocentrism: it is simply assumed that legal regimes that have obligated themselves to protect fundamental rights are better than those that don’t – much as there is to say about the concept of human rights. Cf: J. Cusack, S. Arundhati Roy, Things that can and cannot be said. Essays and

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the international arena, and that none is allowed to interfere in the domestic affairs of another state.

A ‘constitutionalized’ international legal order, however, would no longer solely revolve around sovereign states as the bearers of authority. Instead, it would allow for the inception of ‘the international community’ as a whole, to become an actor in international law.33 In this reading, states would no longer be able to hide themselves behind the argument of state sovereignty when confronted with challenges that call for cross-border solutions in order to achieve a more just world order. It would also further stimulate the emergence of an international community applying international law doctrines such as the “Responsibility to Protect” (R2P), and “Humanitarian intervention”.

2.3 Definitions

One problem, however, that one encounters immediately when confronted with the literature about constitutionalizing international legal orders, is that there is little consensus about its goals, its methods, and even its basic definitions. Following the dramatic increase in popularity of this topic in the past decades, one can barely see the forest for the trees when confronted with the cacophony of ‘international

constitutionalism’, ‘European constitutionalism’, ‘federalism as constitutionalism’, ‘post-national constitutionalism’, ‘cosmopolitan constitutionalism’, ‘constitutional pluralism’, and its counterpart ‘pluralist constitutionalism’.34

Though often brushing over the differences, one cannot engage in serious analysis without a proper understanding of the inconsistent use of these concepts. For this reason, the following paragraph is an attempt to untie the conceptual Gordian knot in which this lack of consensus has resulted. The focus here is on two core concepts and the various constellations in which they have been brought together:

‘constitutionalism’, and ‘legal-‘ or ‘constitutional pluralism’. Both are crucial for our

33

O. Diggelmann, T. Altwicker. ‘Is There Something Like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism’, Zeitschrift für ausländisches öffentliches Recht und

Völkerrecht 68 (2008) 623– 650.

34

Each and every single one of these concepts has been used in scholarly literature in the past decade alone – the most important ones will be discussed in more detail in the following chapter.

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exploration of possible solutions to the problem of the constitutional deadlock in the doctrine of national constitutional identity, and will therefore have to be considered in some detail.

2.3.1. ‘Constitutionalism’

Firstly, there is no consensus whatsoever about the meaning of the concept of constitutionalism. An eminent scholar even noted, that “many of the differences and

disagreements under the canvas of diversity are fundamental - disagreements, if you like, about the very concept of constitutionalism rather than simply distinct conceptions of a shared concept.”35 Most scholars seem content to simply name-drop the best known concepts of contemporary legal philosophy (e.g. ‘it has to include’ separation of power, democratic legitimacy, the rule of law, fundamental rights protection, limited government power etc.)36, others characterize it as a political ideal itself – as the symbolic and normative framework that is used to render power legitimate37 – and for others again it signifies a power system coercing members of society into a

straightjacket of uniformity.38 The most positive pleas for constitutionalism have even been criticised for the normativity of their analyses. The critique is that they

inadvertently assumed constitutionalism to a good thing, whereas all other forms of

35 N. Walker, ‘The idea of constitutional pluralism’, The modern law review 65, 3 (2002) 333. 36

C. Zoethout, Constitutionalisme: Een vergelijkend onderzoek naar het beperken van overheidsmacht

door het recht (Arnhem 1995); W. Waluchow, ‘Constitutionalism’, in: Stanford encyclopedia of philosophy

(2012) avaible on: https://plato.stanford.edu/entries/constitutionalism/#ConMinRicSen [viewed 2nd of June, 2017, 14:45]; A. O’Donoghue, ‘International constitutionalism and the state’, International journal of

constitutional law 11, 4, (2013) 1021 – 1045.

37 N. Walker, ‘Post National Constitutionalism and the Problem of Translation’, in: J.H.H. Weiler, M. Wind

(eds.), European Constitutionalism Beyond the State (Cambridge 2003) 50 – 56; M. Kumm, ‘The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law’, Indiana Journal of

Global Legal Studies, 20, 2 (2013) 605 – 628; D. Halberstam, ‘Local, global and plural constitutionalism:

Europe meets the world’, in: G. de Búrca, J.H.H. Weiler (eds.), The worlds of European constitutionalism (Cambridge 2012) 152.

38 J. Tully, Strange multiplicity: constitutionalism in an age of diversity (Cambridge 1995); N. Krisch, ‘The

case for pluralism in postnational law’, in: De Búrca, Weiler (eds.), The worlds of European

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governance amounted to domination and repression – allowing only constitutionalism to be a legitimate form of government (without substantiating the concept).39

Of course, here is not the place to attempt to bridge all of these conceptual divides, but we do have to be mindful of these differences. To bring some conceptual clarity to the table, I will here briefly outline the way in which the concept will be used in the rest of this study. First of all, I do not take it to be a self-contained political theory.

Constitutionalism has nothing to say about liberty or justice, and is therefore

unsatisfactory as political theory in its own right. It should therefore not be confused with systems of political thought like liberalism or civic republicanism, and one should definitely not attempt to read ‘constitutionalism’ in older works of political philosophy. Rather, this study takes it to be a theory about the role (constitutional) law should play in political societies. This theory, then, is considered to be influenced heavily by the various strands of political theory that emerged ‘victorious’ out of the developments of the 20th century (i.e. liberalism and civic republicanism, but not communism). Because it spans both liberalism and civic republicanism in all its various forms, it cannot be

consider a single coherent political philosophy. Rather, it theorizes about the role of the law within such political frameworks, for this reason singling out elements such as the rule of law and democratic legitimacy as the most important. It is the decisive influence that liberalism and civic republicanism have had on thinking about matters of

constitutional law that has resulted in constitutionalism’s support for individual liberty, the rule of law, and limited government.

I will not touch upon the criticism that constitutionalism as a concept would be inherently ethnocentric (in a ‘Western’ way), for this would lead to us to debating the universality of constitutionalism, of its merits on a global scale, and of whether or not it would is a ‘better’ political system. A short paragraph explaining the use of

constitutionalism in the rest of this study is not the place to debate such matters. This study focusses on the legal problem of conflicting claims of constitutional law and ways

39

J.H.H. Weiler, ‘Prologue: global and pluralist constitutionalism – some doubts’, in: De Búrca, Weiler, The

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to resolve this. The question of whether or not constitutionalism can be reconciled with cultural diversity within a polity, however, will receive due attention in the course of this study as we come to explore various international constitutionalist answers to the problem of the conflicting claims to final authority within the doctrine of national constitutional identity in the European legal order.

2.3.2 ‘Constitutionalizing’ international law

Having somewhat clarified the meaning of constitutionalism in this study, the next topic of interest is what exactly this ‘constitutionalizing’ of international legal orders entails and how this should be achieved. As one takes a closer look at the available literature, it is clear that most scholars barely engage with one another’s arguments.

On the most basic level, there seems to be consensus that the

constitutionalization of the international legal order is a process which seeks to apply the legal mechanisms of national ‘constitutionalist’ governance to international legal regimes. These would then include the commitment to the rule of law, democratically elected officials, an increased attention for human rights law, and improved

accountability of international governance systems.40 It follows from my analysis of the concept of constitutionalism as outlined above, that in this study ‘international

constitutionalism’ and ‘constitutionalizing international law’, signify the notion that constitutional law has a role to play in international political societies and the

postnational legal orders they construct – preferably so through concepts such as the rule of law, fundamental rights protection, and democratic legitimacy.

The result would then be an international legal order which is no longer (purely) based on the ‘Westphalian’ model of international law. As discussed before, this means challenging the idea that sovereign states are the sole bearer of legal rights in

international law and that the interstate arena is one of utter anarchy, controlled only through rules they have all consented to. Instead, constitutionalist structures are applied to international law. Examples of ‘constitutionalizing’ international legal orders

40

A. O’Donoghue, ‘International constitutionalism and the state’, International journal of constitutional

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are addressing the privileges of the United Nations’ Security Council members,

expanding the jurisdiction of international human rights courts over states (as the ECHR does), and introducing mechanisms through which to appeal against decisions by international organization (e.g. by individuals targeted by Security Council resolutions).

2.3.3 ‘Pluralism’

Within the literature of international constitutionalism, scholars often take recourse to the notions of “legal –“, or “constitutional pluralism”, though at times different scholars seem to take this concept to mean different things.41 Within the context of the (nation-)state, legal pluralism signifies the coexistence of more than one legal order, with judicially enforceable rights, within a given territory.42 These different sources of rights can, for example, dictate different parts of everyday life (e.g. historical colonial

administrations demanding obedience in matters of administrative law, but leaving the adjudication of family law to customary- or religious law), or can seek to legislate functionally different areas of law (the same employee might be the subject of national trade union law, European Union labour law, and ECHR fundamental rights protection – all of which can conflict with one another).43

2.3.4 Pluralism in international constitutional law

With legal pluralism signifying the existence of more than one (final) authority within a legal order, ‘constitutional pluralism’ simply applies this notion to matters of

constitutional law. Constitutional pluralism therefore signifies the existence of more than one final constitutional authority. This can be applied to both national and

international legal orders. The notion has seen a great rise in popularity within the field of European (Union) constitutional law scholarship, making sense of the constitutional

41

J.H.H. Weiler, ‘Prologue: global and pluralist constitutionalism – some doubts’, in: G. de Búrca, J.H.H. Weiler, The worlds of European constitutionalism (Cambridge 2012) 8 – 12; M. Wind, ‘The European Union as a polycentric polity: returning to neo-Medieval Europe?’, in: J.H.H. Weiler, M. Wind, European

Constitutionalism beyond the state (Cambridge 2003) 103 – 131 – even calling it an “unidentified political object”.

42 J. Griffiths, ‘What is legal pluralism?’, Journal of legal pluralism 24 (1986) 1 – 50. 43

A. Stone Sweet, ‘A cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe’,

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constellation of the European Union and its Member-States, in which multiple

conflicting constitutional claims operate alongside one another.44 It is also applied to the legal systems of the World Trade Organization, whose authority is not territorially, but functionally defined and can thus be seen as ‘horizontally’, rather than ‘vertically’ in relationship to state sovereignty.45

It has been the combining the concepts of international constitutionalism and

constitutional pluralism, in all types of ways, that has sparked multiple theories about how to solve the problem of conflicting constitutional claims to final authority. Their varying rates of success in resolving this type of conflict when it comes to the doctrine of national constitutional identity in the European legal order will be the subject of the rest of study.

2.4 Critique of international constitutionalism 2.4.1

Some scholars, however, have argued that neither promoting ‘constitutional pluralism’, nor ‘constitutionalization’ will solve the problems that European constitutional law faces today. The most authoritative of these critics is Dieter Grimm, who has argued that the concept of constitutionalism can’t be successfully applied to the international legal order, because of the highly specific historical circumstances in which constitutions were born: they served to curb the power of the 18th-century monarchical state, in favour of the bourgeoisie.46 It was with this very precise goal in mind that national constitutions were declared, and the ‘achievement of constitutionalism’ therefore consisted in successfully limiting the legitimate exercise of power by the state.47 According to Grimm, therefore, constitutionalism cannot be detached from the historical

circumstances within which it arose.48 Because the current landscape of power has

44 Walker, ‘The idea’, 337. 45

Idem, 344 – 347.

46

D. Grimm, ‘The constitution in the process of denationalization’, Constellations 12 (2005) 454 – 463; D. Grimm, Constitutionalism: past, present and future (Oxford 2016) 124 – 130.

47

Grimm, Constitutionalism, 25 – 33.

48

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shifted significantly, including not only international organizations such as the EU, the UN, and WTO but also powerful multinational companies, the doctrine of

constitutionalism therefore cannot provide adequate means to limit the exercise of their powers. Constitutions were written to control the monarchical state – other legal

theories will have to be developed to control those non-state actors currently wielding power.49

2.4.2

As eminent a legal scholar as Grimm may be, his historical scholarship shows serious shortcomings. Not only does his view of the 18th century contain numerous cases of ‘Whig history’ and its inexorable march to modern times and serious anachronisms, he also neglects the fact that political concepts have been subject to great conceptual changes from the 18th century to the present (one has to think only of the concepts of liberty, ‘fundamental’ or constitutional laws, or democracy to see this point).50 Add to this a highly contentious and one-sided reading of the American and French revolutions, and the unsubstantiated assumption that the concept of popular sovereignty became the universal theory of political legitimacy (which is not the case is several European countries even to this day, including the United Kingdom and the Netherlands), and it should be clear that the work is ill-suited to provide an accurate analysis of historical change.51

49

Grimm, Constitutionalism, 30 – 35. Sadly, Grimm does not actually provide such a theory.

50 Just to mention the most important works on the concept of liberty and ‘fundamental laws’:

J.G.A. Pocock, The Machiavallian moment: Florentine political thought and the Atlantic republican

tradition (Princeton 1967) 83 – 155, 423 – 568; E.O.G. Haitsma Mulier, The myth of Venice and Dutch republican thought in the seventeenth century (Assen 1980) 120 - 164; H. Baron, In search of Florentine civic humanism: Essays on the transition from medieval to modern thought. Volume I: An anatomy of Florentine civic humanism (Princeton 1988) 4 – 42, 134 – 155, 226 – 252; Q. Skinner, Liberty before liberalism (Cambridge 1998); G. Stourzh, ‘Fundamental laws’, in: From Vienna to Chicago and back: essays on intellectual history and political thought in Europe and America (Chicago 2007); Q. Skinner, M. van

Gelderen, Freedom and the construction of Europe. vol. I: Religious and constitutional liberties (Cambridge 2013) - especially the contributions by Van Gelderen, Kainulainen, Dawson, Stanton, Lee and (in volume II) Brett, pages 1 – 10, 38 – 56, 115 – 133, 134 – 154, 256 – 272, and (Volume II: Free persons and free states, (Cambridge 2013)) 9 – 26 respectively.

51 M. Sonenscher, Before the deluge: public debt, inequality, and the intellectual origins of the French

Revolution (Princeton NJ 2009); E.J. Hobsbawm, The age of Revolution 1789 – 1848 (London 2010); J.I.

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Nonetheless, it remains a key publication about the question of international constitutionalism and his argument about the inapplicability of constitutionalism to international law therefore demands more detailed treatment in the context of this study. The aforementioned criticism aside, I would here like to address two aspects of Grimm’s arguments which severely hamper his argument.

Firstly, and probably related to the fraught understanding of the history of public law, is that Grimm does not seem to take into account the great adaptability that national constitutions have already shown throughout the centuries. He constantly emphasizes the specific historical circumstances within which constitutions were drafted, but glosses over the fact that, as much as they pertained to the same ‘state’, their texts related to completely different political circumstances. When one pays due attention to the incredible shapeshifting that various constitutions have undergone from the

moment of their conception until today, the step towards international

constitutionalism doesn’t seem a big step at all. One only has to remind themselves of the fact that the (federal) constitution of the United States of America, when enacted in 1788, concerned only 13 states, none of which were ruled through universal suffrage and nearly all of which upheld slavery – every president until Abraham Lincoln even being slave-owners themselves.52 These facts alone should be enough to convince anyone that the way in which the US constitution protects rights has changed

significantly over the years, as has the territory over which it rules, as has its ‘demos’. This example goes to show that, even though a constitution may be conceived in specific historical circumstances, these do not prevent it from greatly changing the substantive rights that it protects or the scope and meaning of its provisions.

It is true that these developments have all occurred within the confines of a single state. Nonetheless, the example goes to show that constitutionalism, as a political and legal

Robespierre (Princeton NJ 2014); R. Bourke, Q. Skinner (eds.), Popular sovereignty in historical perspective

(Cambridge 2016).

52 J.P. Rodriguez (ed.), Slavery in the United States: a social, political and historical encyclopedia (Oxford

2007); J. Oakes, Freedom National: the destruction of slavery in the United States 1861 – 1865 (New York 2012).

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mechanism, has in the past undergone changes that are far more substantial than those presented by a possible future of a constitutionalized international legal order.

Secondly, the statist argument can be easily rebuked when one introduces a (quasi-Aristotelian) division between the matter of constitutionalism and its form. With regard to its matter, the content of the constitutional legislation, Grimm’s argument remains valid: national constitutions have been adopted to curb the powers of the state, a lot of public power currently resides elsewhere, so if we wish to standardize the exercise of these powers the content of the controlling legal mechanism has to change. Considering the matter of constitutionalist checks on the exercise of power, this makes perfect sense.

It does not, however, disqualify constitutionalism as a form: as a much broader method of constructing legal mechanisms which to limit the exercise of power. The argument above only takes issue with the idea that constitutions, when adopted within the national legal framework, can provide answers to problems that transcend this national scale. It contains no substantive criticism of the idea of individuals joining forces to create various legal mechanisms which allow for the continuous shaping of their society and its legal constraints - as is happening in any liberal democracy today. The critiques therefore present no reason why the very basic form of political theory to which constitutionalism subscribes would not be able to work when applied to

international law.

2.5 Conclusion

This chapter has laid down the conceptual groundwork on the basis of which we will approach the problem of the conflicting claims to final authority in the doctrine of NCI. We can now turn our attention to the four theories that seek to mitigate these

constitutional problems. Each of the next four chapters deals with one of these theories specifically. In order of appearance, these are liberal nationalism, federalism as

constitutionalism, cosmopolitan constitutionalism, and international constitutional pluralism. The first two of these have been written specifically with the problem of NCI

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in mind, and largely revolve around balancing the interests of Member-States against those of the EU as a whole, whereas the latter two focus on bigger issues picture of political and legal theory.

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Chapter 3. Liberal nationalism

3.1 Introduction

The remainder of this study seeks to answer the question how various theories resolve the conflict between national- and EU law and their mutually exclusive claims to final authority with regard to fundamental elements of their respective constitutional legal orders. The first theory that attempts to solve this problem to be discussed, is the theory of liberal nationalism of Elke Cloots. Arguing for a more nationalist approach to liberalism, and concordantly claiming that protecting national identity is a moral imperative, she reaches the conclusion that the best way to resolve the conflict is by striking a different balance of interests, resulting in the restriction of the discretionary powers of the ECJ in matters of national constitutional identity.53

Cloots starts her analysis by reciting a maxim from Jozeph Raz, stating that a court should strive for the morally best solution to disputes to which the law does not give a firm answer.54 Seeking to apply this citation to the ECJ’s adjudication of art. 4(2) TEU-cases, she embarks on an analysis that tries to formulate a framework that spells out this ‘morally best solution’.55 Following a short treatment of some strands of liberal political theory, she concludes that the EU legal order focusses too much on

‘cosmopolitan liberalism’, to the detriment of another legitimate form of liberalism; that of ‘liberal nationalism’.56

Taking her cue from this variation of liberalism, she argues that the protecting of national identity as enshrined in art. 4(2) TEU is not only a legal imperative, but a moral one too. She argues that “there is particular value in respecting national identities in a

multinational polity such as the EU”, because warranting these identities legal

protection allows for a better cultivation of six ideals (of liberal nationalism) she mentions.57 These are the improvement of individual autonomy, distributive justice,

53

E. Cloots, National Identity in EU Law (Oxford 2015) 8 – 21, 210 – 225, 326 – 353.

54

Cloots, National Identity, 81.

55 Idem, 73 – 98. 56

Idem, 92 – 105.

57

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deliberative democracy, equal respect of the authorities for individuals, greater ‘individual liberty’, and the increased viability of the EU.58

After claiming that protecting national cultural and constitutional identities within the EU legal order constitutes a moral obligation, she considers which of its constituent parts are best placed to authoritatively judge the content of these identities. Cloots argues that these would be Member-States’ governments and constitutional courts, for two reasons. Firstly, these have better access to data relevant to such cases, therefore having a better understanding of the sensitivities at stake. Secondly, because ‘identity’ is a concept relating to self-understanding – making it impossible for another entity to decide its content for you.59

For these reasons, the legal framework that addresses the questions of national constitutional identity should strike a different balance between cosmopolitan

liberalism and liberal nationalism: it should restrict the discretionary power of the ECJ and grant it to national actors instead. With regard to the adjudicative framework that the ECJ should apply when faced with claims based on art. 4(2) TEU, Cloots argues that it should apply ‘rule based’ forms of adjudication rather than ‘standard based’, because the former are better suited to limiting judges’ manoeuvrability in favour of (national) political and legislative instructions.60

3.2

This theory resolves the conflicting claims to final authority between Member-States and the EU touching upon fundamental features of their respective legal orders, by considering the Member-States’ claims more legitimate. Cloots’ theory emphasizes the legitimacy of Member-States’ national(ist) concerns and argues that more importance ought to be attributed to their claims about the protection of their national

constitutional identities. Concordantly, the current proportionality review of the ECJ has to change: the court is to show deference to Member-States’ conceptions of national constitutional identities, and its power to review the proportionality of Member-States’

58 Cloots, National identity, 85 – 112. 59

Idem, 133 – 148; 208 – 216, 290 – 310.

60

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acts ought to be either revoked or strongly limited, preferably by rule-based EU wide legislation. Wherever the principle of the primacy of EU law comes into conflict with the principles of national constitutional identity, this theory thus prescribes that the

European law doctrine has to give way: out of the two, only Member-States’ institutions can legitimately claim the final authority to decide which matters are of fundamental constitutional importance to their legal orders.

3.3

This theory, however, suffers from multiple flaws. The first of these, and the most serious because it has grave consequences for the line of argument of her theory, relates to her claim that the protection of national constitutional identity is not just a legal norm, but a moral one too. Because Cloots bases the rest of her analysis of the mitigation of the conflict between EU law and national law on this alleged moral imperative, the flaws in her theory will be discussed in some detail here.

Her argument is that a polity that protects national constitutional identity is morally superior to one that doesn’t, because the former is more conducive to achieving certain ideals.61 Sadly, after stating this claim, she fails to substantiate why these ideals are best attained through the protection of national constitutional identities. In fact, in her discussion of the first three of the six goals (individual autonomy, distributive justice, and deliberative democracy) she says absolutely nothing about the merits of (nation-)states. At no point in the argument is there any affirmation as to why these values would best be served in the context of the state, as opposed to communities either small-scaled or supra-national. In her argument, Cloots assumes 1) that the nation-state instils a sense of community among its inhabitants, thus promoting their willingness to more equally distribute wealth, and 2) that, because the nation-state is the locus of most of the ‘public sphere’, it is therefore the best vehicle for the promotion of

deliberative democracy. Neither of these arguments show why the nation-state is better form of government than others. It fails to stand up to the criticism that a community

61 Cloots mentions the following six: the improvement of individual autonomy, distributive justice,

deliberative democracy, equal respect of the authorities for individuals, greater ‘individual liberty’, and the increased viability of the EU – see the previous paragraph.

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much smaller than the nation-state could promote both of these goods at least as well – if not better. Her focus on the nation-state is therefore not only conformist, but also essentialist. Granted, it could be argued that the nation-state is better suited to these values than is the composite confederation that is the EU, for example because of a lack of European media outlets, but this still would not substantiate her assumption that the

nation-state best serves the six ideals.

Her fourth and fifth argument suffer from comparable defects. These are her argument that 4) inhabitants of a political community ought to feel they are being treated with equal respect by the authorities, that 5) centralized government endangers ‘individual liberty’, again with the nation-state best serving these interests. First of all, there is no consensus whatsoever as to what political ‘liberty’ entails or should entail – as mentioned in the previous chapter.62 Furthermore, here again Cloots provides no substantiation as to why the nation-state would best serve these interests.63 I fail to see why nation-states would be better at paying their inhabitants ‘equal respect’ than any other form of political community, nor why it should be more conducive to individual liberty – especially considering the effect EU law has had on both these fields. To this can be added the fact that the EU seems much less vulnerable to the type of politics that undermines the rule of law and is on course to strip liberal democracies of its liberal elements (as is allegedly happening in Poland and Hungary).

Her sixth and final argument as to why the protection of national identities would be a moral good, is that this promotes the “viability of the EU”. Obviously, this purely political argument cannot qualify as an argument as to why protecting national identities is morally right. Even if the formation of the EU in itself is considered a morally right act, for example sharing the view of the 2012 Nobel Peace Prize Committee and its argument that it brought decades of peace, this does not convey morality unto the

62 J.S. Mill, On Liberty (London 1869); I. Berlin, ‘Two concepts of liberty’, inaugural lecture University of

Oxford 31st of October 1958 (subsequently published by Clarendon: Oxford 1958); Q. Skinner, Liberty

before liberalism; even admitting that many readings of the concept of liberty are contradictory, is Q.

Skinner, M. van Gelderen, Freedom and the Constitution of Europe. vol. I: Religious and Constitutional

Liberties, II: Free Persons and Free States (Cambridge 2013).

63

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protection of its constituent ‘identities’. The contrary can even be argued: if one claims that the economic intertwining of Europe and its consequent peace are morally right, surely one would argue that dismantling nationalism would be the morally right thing to do. Considering the protection of national constitutional identity, it makes more sense to employ this argument of morality against national exceptionalism rather than in its favour.

3.3.2

To these can be added other, much shorter, rebuttals of Cloots’ theories about why the protection of national identities in EU law is an ethical precept and therefore worthy of deference. Ironically, it is an invocation of the work of the author whose work she quotes on the opening page of her book: the late Eric Hobsbawm. He, along with many others, proved decades ago that ‘national identities’ are political constructs stemming from the 18th and 19th centuries: they are, and always have been, instruments for the exercise of political power. They have nothing to do with any inherent morality.64 A further setback the study suffers from, is its limited scope when recounting the liberal democratic state. Without substantiating these choices, the work recounts only two political theories. When theorizing about striking the right balance between

European and Member-States’ interests in the adjudication of 4(2) TEU cases, the work only takes into account cosmopolitan liberalism and liberal nationalism. The result of this narrow approach is a narrowly formulated answer: Cloots argues that between these (caricatures of) political theories, lies the golden mean. The reader is then offered this mean as a “third way”, which can account for both cosmopolitan liberalism’s wish for European integration and liberal nationalism’s demand for the protection of national identities.65 The magically appearing “third way” leads to the more structured and

64

E.J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge 1990); E.J. Hobsbawm, T. Ranger (eds.), The Invention of Tradition (Cambridge 1983); B.R.O.G. Anderson, Imagined

Communities: reflections on the origin and spread of nationalism (London 1991). On the construction of

regional and national identities, also see: R. Stein, J.S. Pollmann (eds.), Networks, regions and nations.

Shaping identities in the Low Countries, 1300-1650 (Leyden 2010); B. Deseure, Onhoudbaar Verleden: Geschiedenis als politiek instrument tijdens de Franse periode in België (Leuven 2014).

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