PROCEDURES REGARDING NATIONAL IDENTITY CLAUSE IN THE NATIONAL CONSTITUTIONAL COURT’S AND THE CJEU’S CASE-LAW

Abstract

Besides the evolution of the concept of national identity through the work of scholars, a new era in the conceptualization of this concept came with the Lisbon Treaty and its so-called ‘’national identity clause’’ or the famous Article 4(2) TEU. Since Article 4(2) TEU does not determine the national identity of Member States, in order to determine it, our starting point should be
its constitution, or, more precisely, certain principles of its constitution or a set of core values, principles and rules. A second important phase in this sense is the relevant constitutional court’s case law. In this context, particularly important role play decisions regarding the relationship between the law of the European Union and domestic constitutional law. The German Federal Constitutional Court has developed the most elaborate jurisprudence on constitutional identity. This German approach has inspired the positions adopted by some other constitutional courts, and very possible will be aslo inspiration for future Croatian Constitutional Court position in this context. As it arises from the analysis of the CJEU’s case-law, although it seems
that Article 4(2) TEU offers a trap door to Member States to escape some of their EU law obligations, the overall picture is far from being so simple.