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The Dialectics Between Constitutional Identity and Common Constitutional Traditions: Which Language for Cooperative Constitutionalism in Europe?

  • Massimo Fichera and Oreste Pollicino

Abstract

This Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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*

Massimo Fichera is Academy of Finland Research Fellow and Adjunct Professor at the University of Helsinki, Faculty of Law.

**

Oreste Pollicino is full professor of Constitutional Law, Bocconi University, Milan.

Footnotes

References

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1 For example, not only the Court of Justice of the European Union (“CJEU”), but also national courts may act to preserve EU values. From this perspective, we may understand the Italian Constitutional Court’s decision No. 170/1984 in which the Court reserved upon itself the power to review internal laws which prevent or compromise the continuing observance of the Treaty. Corte Costituzionale, Case 170/1984, ECLI:IT:COST:1984:170, Judement of 5 June 5 1984.

2 See, e.g., ECJ, Case C-441/14, Dansk Industri v. Rasmussen, ECLI:EU:C:2016:278, Judgment of 19 April 2016; Hoejesteret, Case 15/2014, Dansk Industri, acting on behalf of Ajos A/S v. Estate of A, Judgment of 2014 (UfR 2017.824H); Alkotmánybíróság (AB) [Constitutional Court] November 30, 2016, 22/2016 (Hung.). Hungarian decision available at http://hunconcourt.hu/sajto/news/communication-on-the-interpretation-of-the-fundamental-laws-provision-allowing-the-joint-exercise-of-powers-with-the-other-member-states-through-the-institutions-of-the-european-union; ECJ, Joined Cases C-643 & 647/15, Slovak, Hungary, Poland v. Council, ECLI:EU:C:2017:618, Judgment of 26 July 2017.

3 Richard A. Posner, Law and Legal Theory in England and America 14 (1996) (noting the common law method of judicial interpretation is a method that sees the text as a starting point, which allows judges to create a body of constitutional law according to pragmatic criteria taking account, inter alia, of prior precedents).

4 Transnational Law: Rethinking European Law and Legal Thinking (Miguel Maduro et al. eds., 2014) (highlighting the EU as transnational law).

5 Michel Rosenfeld, Introduction to Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives 3 (Michel Rosenfeld ed., 1994).

6 Gary Jeffrey Jacobsohn, Constitutional Identity 87–88 (2010).

7 Richard C. M. Mole, Discursive Identities/Identity Discourses and Political Power, in Discursive Constructions of Identity in European Politics 10 (Richard C. M. Mole ed., 2007).

8 Anna Duszak, Introduction to Us and Others: Social Identities Across Languages, Discourses and Cultures 1–28 (Anna Duszak ed., 2002).

9 Henri Tajfel & Joseph P. Forgas, Social categorization: Cognition, values, and groups, in Social cognition: Perspectives on everyday understanding 113–40 (Joseph P. Forgas ed., 1981) (“We are what we are because we are not what we are.”).

10 Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (2013).

11 Paul Ricoeur, Oneself as Another (Kathleen Blamey trans., 1992).

12 Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community 27 (2010).

13 Jacques Derrida, Positions (Alan Bass trans., 1981) and subsequent elaborations, e.g., Ernesto Laclau & Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (1985).

14 For more details, see Massimo Fichera, The Foundations of the European Union as a Polity (2018). To avoid misunderstandings, the broad notion of security employed in this work is not related to the area of freedom, security and justice, but to the European constitutional framework as a whole. See also Massimo Fichera, Discursive Constituent Power and European Integration, in The Future of Europe: Political and Legal Integration Beyond Brexit (Antonina Bakardjeva Engelbrekt & Xavier Groussot eds 2019).

15 See Rosenfeld, supra note 12, at 30:

The constitutional self must also produce an identity in opposition to—and hence by negating—constitutional others both within the polity … and beyond the boundaries of the polity against other constitutional selves with different identities or with identities from which the prevailing constitution within the polity must be differentiated.

16 Joseph H. H. Weiler, On the Power of the Word: Europe’s Constitutional Iconography, 3 Int’l J. Const. L. 173, 184 (2005) (noting “to protect national sovereignty is passé; to protect national identity by insisting on constitutional specificity is à la mode”).

17 This constitutional core may be variously identified. See Daniel Sarmiento, The EU’s Constitutional Core, in National Constitutional Identity and European Integration 177 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013). However, while reference may be made, for example, to Articles 2, 3, and 4 TEU or to the Preamble to the Treaty of Lisbon, it should be pointed out that the dynamic character of the constitutional core goes beyond a mere textual account and reaches out to the societal dimension.

18 Elke Cloots, National Identity, Constitutional Identity, and Sovereignty in the EU, 45 Neth. J. Legal Phil. 82 (2016). However, the author argues that moral concerns should lead to an interpretation of Article 4 (2) TEU as requiring respect for national rather than constitutional identity, which, being based on a claim to sovereignty on behalf of the Member States, is a source of conflict. The argument of this Article is, instead, that conflict is unavoidable but can be better managed through the notion of “common constitutional traditions.”

19 Rosenfeld, supra note 12, at 29.

20 Elke Cloots, National Identity in EU Law (2015) (noting that the legal and political value inherent in the national identity clause must be recognized).

21 Jacobsohn, supra note 6, at 89 (quoting Bagehot).

22 Cloots, supra note 20, at 90.

23 See, e.g., CJEU, C-6/64, Costa v. E.N.E.L., ECLI:EU:C:1964:66, Judgment of 15 July 1964; CJEU, C-26/62, van Gend en Loos, ECLI:EU:C:1963:1, Judgment of 5 Feb. 1963.

24 CJEU, Case C-1/58, Stork v. High Authority, ECLI:EU:C:1959:4, Judgment of 4 Feb. 1959.

25 Id.

26 CJEU, Joined Cases C-7/56, 3/57 to 7/57, Algera v. Common Assembly of ECSC, ECLI:EU:C:1957:7, Judgment of 12 July 1957.

27 Id. at 55.

28 As Joseph Weiler pointed out in connection to Stork, “in the absence of a clearly established doctrine of supremacy, there would be little to stop the review of Community actions under national constitutional law from expanding to any national norm.” See Joseph H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103, 1114 (1986).

29 ECJ, Case C-29/69, Stauder v. Stadt Ulm, ECLI:EU:C:1969:57, Judgment of 12 Nov. 1969; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1970:114, Judgment of 17 Dec. 1970; ECJ, Case C-4/73, Nold KG v. Commission, ECLI:EU:C:1974:51, Judgment of 14 May 1974. More recently, see ECJ, Case C-399/11, Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107, Judgment of 26 Feb. 2013.

30 ECJ, Joined Cases C-402 & 415/05, Kadi & Al-Barakaat Int’l Foundation v. Council and Comm’n, ECLI:EU:C:2008:461, Judgment of 3 Sept. 2008; ECJ, Case C-160/09, Ioannis Katsivardas – Nikolaos Tsitsikas v. Ypourgos Oikonomikon, ECLI:EU:C:2010:293, Judgment of 20 May 2010.

31 Internationale Handelsgesellschaft, Case 11/70 at para. 3; Joined Cases 402/05 and 415/05 Kadi and Al-Barakaat, Joined Cases C-402 & 415/05 at paras. 281–85.

32 Internationale Handelsgesellschaft, Case 11/70.

33 Id. at para. 3. Judges have already expressly underlined that:

Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.

34 Id. at para. 4.

35 The reference is related to the additional case law which has added, as a source of inspiration for the protection of fundamental rights, the rules of the relevant international treaties in the field of human rights which the Member States have ratified—Nold, Case C-4/73—including the ECHR, which is in a privileged position. See CJEU, Case C-36/75, Rutili v. Ministre de l’intérieur, ECLI:EU:C:1975:137, Judgment of 28 Oct. 1975.

36 Cass., 13 dicembre 1979, Giust. 1979, 14 (It.).

37 See G. Gaja, Aspetti problematici della tutela dei diritti fondamentali nell’ordinamento comunitario, in Riv. dir. internaz. 627 (1988) (see comment in main body of article).

38 Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 Am. J. Int’l L. 1 (1981).

39 CJEU, Case C-144/04, Mangold v. Helm, ECLI:EU:C:2005:709, Judgment of 22 Nov. 2005.

40 Roman Herzog & Lüder Gerken, Stop the European Court of Justice, EUobserver (Sept. 10, 2008).

41 Based on these arguments, it is likely that Herzog himself did not share the conclusions of the most recent decision of CJEU, Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG, ECLI:EU:C:2010:21, Judgment of 19 Jan. 2010, in which the Luxembourg judges stated that:

In those circumstances, it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle.

42 See Stefania Ninatti, Ieri e oggi delle tradizioni costituzionali comuni: le novità nella giurisprudenza comunitaria, in Scritti in memoria di Alessandra Concaro 533 (Giuseppe D’Elia, Giulia Tiberi & Maria Paola Viviani Schlein eds., 2012). See, e.g., ECJ, Joined Cases C-20 & 64/00, Booker Aquaculture Ltd & Hydro Seafood GSP Ltd v. Scottish Ministers, ECLI:EU:C:2003:397, Judgment of 10 July 2003; ECJ, Case C-265/87, Schräder v. Hauptzollamt Gronau, ECLI:EU:C:1989:303, Judgment of 11 July 1989; ECJ, Case C-71/02, Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GmbH, ECLI:EU:C:2004:181, Judgment of 25 Mar. 2004; ECJ, Case C-441/14, Dansk Industri v. Rasmussen, ECLI:EU:C:2016:278, Judgment of 19 Apr. 2016; ECJ, Case C-147/08, Römer v. Freie und Hansestadt Hamburg, ECLI:EU:C:2011:286, Judgment of 10 May 2011.

43 CJEU, Joined Cases C-293 & C-594/12, Digital Rights Ireland Ltd v. Minister for Communications, Marine & Natural Resources & Others & Kärntner Landesregierung & Others, ECLI:EU:C:2014:238, Judgment of 8 Apr. 2014.

44 Council Directive 2006/24 of Mar. 15, 2006, On the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Electronic Communication Services or of Public Communications Networks and Amending Directive 2002/58/EC, 2006 O.J. (L 105) 54 (EC).

45 Charter of Fundamental Rights of the European Union art. 7, June 7, 2016, 2016 O.J. (C 202) 389, 395 [hereinafter “Charter”]. According to Article 7: “Everyone has the right to respect for his or her private and family life, home and communications.”

46 Charter, supra note 45, at 395. According to Article 8:

  1. 1.

    1. Everyone has the right to the protection of personal data concerning him or her.

  2. 2.

    2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

  3. 3.

    3. Compliance with these rules shall be subject to control by an independent authority.

47 In this regard, the preamble to the Charter provided it with excellent support in referring to the Charter as a simple reaffirmation of the rights originating from the common constitutional traditions. See Charter, supra note 45, at 393 (“This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States.”).

48 Lawrence Lessig, Code: And Other Laws of Cyberspace (1999).

49 Id. at 313.

50 In reality, only the Netherlands—following the 1983 constitutional amendment—Spain—in Article 18.4 of its constitution—and a few constitutions from Central Eastern Europe provide an express constitutional framework for data protection.

51 Cesare Pinelli, Il momento della scrittura: Contributo al dibattito sulla costituzione europea (2002).

52 The consideration as to whether there is a potential hiatus—with reference obviously to the scope of protection for a particular right—between the expansive scope of the Charter and the corresponding general principle also has significant implications in terms of concrete application. The British and Polish opt-outs, which besides are marginal in their extent, are focused exclusively on the scope of the Charter and could not by contrast be applied to the general principles distilled out of the common constitutional traditions unless those principles are attributed, as must be hoped, with conceptual and operational autonomy. See also Leonard F.M. Besselink, The Protection of Fundamental Rights post-Lisbon: The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions, General Report at the XXV FIDE [Fédération Internationale pour le Droit Européen] Congress Tallinn (May 31, 2012).

53 Herwig C.H. Hofmann & Bucura C. Mihaescu, The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case, 9 Eur. Const. L. Rev. 73(2013) (see comment in main body of article).

54 CJEU, Case C-61/11, Hassen El Dridi, ECLI:EU:C:2011:268, Judgment of 28 April 2011.

55 Id. at para. 61.

56 CJEU, Case C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland, ECLI:EU:C:2010:811, Judgment of 22 Dec. 2010.

57 Charter, supra note 45, at 403. According to Article 47:

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

58 DEB Deutsche, Case C-279/09 at para. 29.

59 Id. at para. 39.

60 Oreste Pollicino, Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-Restraint, 5 German L.J. 283, 283–317 (2004).

61 Marek Safjan, Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of Conflict? (Eur. Univ. Inst. LAW Working Papers; 2012/22). The sphere of European law impact was in this case defined by the principle of effectiveness, broadly interpreted here. As it seems, the principle of effectiveness may also play the role of a special gear between the national and European system, used in order to extend the field of application of fundamental rights’ guarantees.

62 CJEU, Case C-5/88, Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, ECLI:EU:C:1989:321, Judgment of 13 July 1989.

63 Safjan, supra note 61.

64 Nevertheless, the Court has not taken the lead from the Charter in order to promote traditions in terms of the normative aspect of the theory of sources of law.

65 CJEU, Case C-36/02, Omega v. Oberbürgermeisterin der Bundesstadt Bonn., ECLI:EU:C:2004:614, Judgment of 14 Oct. 2004.

66 Barbara Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause (NYU Sch. of Law Jean Monnet Ctr., Working Paper 01/2012). If the preparatory works as part of the European Convention which drafted this Charter are considered, this clause is in actual fact more relevant to a question of competence than a question of appreciating the value of the internal constitutional experience. The reasons why the constitutional identity clause was introduced, in fact, relate to the safeguarding of the fundamental political and constitutional structures. As noted by Guastaferro, the assumption that the purpose of the clause is that of applying in exceptional cases of conflicts between EU law and domestic constitutional law—in an attempt to narrow the scope of application of the supremacy doctrine—has to be challenged; the potential for a use of the clause in governing the ordinary functioning of EU law should be, on the contrary, highlighted.

67 It is sufficient to consider the judgment of the CJEU in Sayn-Wittgestein, CJEU, Case C-208/09, Sayn-Wittgenstein v. Landeshauptmann von Wien, ECLI:EU:C:2010:806, Judgment of 22 Dec. 2010. Indeed, the ECJ has never identified the constitutional identity clause enshrined in Article 4(2) TEU as the privileged arena to deal the multilevel protection fundamental rights in its case law.

68 Armin von Bogdandy & Stephan Schill, Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty, 48 Common Mkt. L. Rev. 1417, 1419 (2011).

69 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Lissabon-Urteil, 2 BvE 2/08 (June 30, 2009), https://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208.html.

70 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 2 BvR 2728/13 (June 21, 2016), https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2016/06/rs20160621_2bvr272813en.html.

71 Gábor Halmai, The Hungarian Constitutional Court and Constitutional Identity, Verfassungsblog (Jan. 10, 2017), https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-identity.

72 Id. In the case of the Hungarian Constitutional Court decision, Gábor Halmai astutely noted “[t]he will of the government not to have any refugees.”

73 Corte Cost., 23 Nov. 2016, n. 24/2017, Racc. uff. corte cost. 2016 (It.).

74 In fact, before the recent Taricco judgment, the phrases “constitutional identity” and “national identity” never appear from a quantitative point of view in the case law of the Constitutional Court (“CC”). Contrary to the BVerfG, which has developed over time constitutional identity review on top of fundamental rights- and democracy-based judicial review of EU acts, the CC has focused its counter-limit doctrines exclusively to the field of the protection of fundamental rights. This approach is evident in the other relevant CC decisions dealing with the relation between the national and the EU legal order, including Frontini and Granital.

75 Corte Cost., n. 24/2017 § 6.

76 CJEU, Case C-105/14, Taricco and Others, ECLI:EU:C:2015:555, Judgment of 8 Sept. 2015.

77 Corte Cost., n. 24/2017 § 5.

78 Id.

79 Id. § 8.

80 Id. § 9.

81 However, see Corte Cost., 7 novembre 2017, n. 269/2017, Racc. uff. corte cost. 2017 (It.), in which the ICC, partially contradicting ECJ, Case C-106/77, Amministrazione delle finanze dello Stato v. Simmenthal, ECLI:EU:C:1978:49, Judgment of 9 Mar. 1978, argued that ordinary judges must refer a question for preliminary ruling first to the ICC itself whenever a simultaneous violation of the Charter and the Constitution takes place. Even in those cases, the EU norm is directly effective.

82 For a similar perspective with regard to the potential role played by the CCT as basis for an alternative language to the identity based one, see M. Graziadei & Riccardo Decaria, The “Constitutional Traditions Common to the Member States” in the Case-law of the European Court of Justice: Judicial Dialogue at its Finest, in Rivista Trimestrale di Diritto Pubblico 949 (2017).

83 CJEU, Case C-42/17, Criminal proceedings against M.A.S., M.B., ECLI:EU:C:2017:564, Opinion of 18 July 2017.

84 Oreste Pollicino & Marco Bassini, The Opinion of Advocate General Bot in Taricco II: Seven “Deadly” Sins and a Modest Proposal, Verfassungsblog (Aug. 2, 2017), https://verfassungsblog.de/the-opinion-of-advocate-general-bot-in-taricco-ii-seven-deadly-sins-and-a-modest-proposal.

85 CJEU, Case C-42/17, Criminal proceedings against M.A.S., M.B., ECLI:EU:C:2017:936, Judgment of 5 Dec. 2017.

86 Corte Cost., 10 aprile 2018, n. 115/2018, Racc. uff. corte cost. 2018 (It.), https://www.cortecostituzionale.it/documenti/comunicatistampa/CC_CS_20180601103714.pdf.

87 The European 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.

88 Strangely enough, this approach emerged in the same case where the Court used, for the first time ever, the notion of constitutional identity in the context of the relation between the domestic and the EU legal orders—there is no previous reference to it, even in the Frontini [no. 183/1973] and Granital [no. 170/1984] cases.

89 Corte Cost., 7 novembre 2017, n. 269/2017, Racc. uff. corte cost. 2017 (It.).

90 Martin Krygier, Law as Tradition, 5 L. & Phil. 237 e. (1986) (see comment in main body of article).

* Massimo Fichera is Academy of Finland Research Fellow and Adjunct Professor at the University of Helsinki, Faculty of Law.

** Oreste Pollicino is full professor of Constitutional Law, Bocconi University, Milan.

Keywords

The Dialectics Between Constitutional Identity and Common Constitutional Traditions: Which Language for Cooperative Constitutionalism in Europe?

  • Massimo Fichera and Oreste Pollicino

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