The Constitutionalisation of National Identity in EU Law and Its Implications

The idea of repatriating national powers from the EU is en vogue. The EU Treaty as amended by the Lisbon Treaty gave considerably more weight to the principles of subsidiarity, proportionality and national identity. This paper will look into the potential limiting effect of the Lisbon Treaty’s emphasis on national identity upon EU legislative competence. Against constructive approaches regarding the added value of the national identity provision of Article 4 (2) TEU, this paper will attempt to unpack the constitutional lack of utility of the principle through a critical interpretation of new CJEU case law. We will look at cases before the Luxembourg Court where Member States have resorted to national identity as a means of derogating from their EU law obligations. It is argued that these cases have only been successful in rebranding the old CJEU cases on legitimate interests to a new breed of case law bearing the national identity tag. The CJEU seems to have envisaged a form of constitutionalism where although Member States enjoy a monopoly over the definition of national identity (the 'what'), the power to determine the compatibility of those interests with EU obligations (the 'how') is vested in the CJEU. As such, this paper will explore whether this development constitutes a cause for celebration vis-à-vis the repatriation of national powers from the EU.