This contribution revisits the Bundesverfassungsgericht's order for reference in the Gauweiler case and focuses on two aspects of that order that until now have not received much scholarly attention. The first concerns the German federal constitutional court's dissociation of constitutional identity review under the German Basic Law from national identity review under Article 4(2) TEU. While the decision on the Lisbon Treaty had suggested that the two go “hand in hand”, the Bundesverfassungsgericht now emphasizes the “fundamental” difference between the concept of national identity under Article 4(2) TEU on the one hand and the German concept of constitutional identity on the other. The second element is the German federal constitutional court's contention that its approach to ultra vires and constitutional identity review can also be found in the constitutional law of many other member states. Yet, careful analysis demonstrates that while there does indeed seem to be a trend in that direction, and several elements of the German approach can also be found in other countries, very few national courts are as adamant as the Bundesverfassungsgericht, and only a handful have developed their position with the same level of detail and ardor.

Fiscal Compact: duty to implement balanced budget rule, automatic correction mechanism and independent budget supervisor in national law – The Netherlands: Act on sustainable government finances – Act does not bind the (budget) legislature – Conformity with the implementation duty in Article 3(2) Fiscal Compact? – The first reading of Article 3(2) – The second reading of Article 3(2) – The genesis of Article 3(2) – Recourse to (Dutch and French) monism?

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – ‘Identity’ key word of the Lissabon-Urteil – The national identity clause in the current Union Treaty – Nation: people and state; diachronic and synchronic identity – Constitutional patriotism – The national identity clause in the Lisbon Union Treaty – Volksidentität and state identity – Verfassungsidentität: diachronic identity – Identité constitutionnelle de la France: synchronic identity – confidence and diffidence in the Union

What governs the first entrance to the territory of a member state by a third country national who is a family-member of a European citizen who has migrated to that member state: (secondary) Community law or national law? This question, of the utmost constitutional importance as it regards the power to decide on the entrance of foreigners on national territory, one of the pearls in the crown of traditional national sovereignty, was facing the Court of Justice of the European Communities in the case of Yunying Jia v. Migrationsverket. Earlier the Court had sent out different signals. Now, in the long-awaited and remarkably short full Court decision of 9 January 2007, the Court carefully manoeuvred between Scylla (the member states are in full control) and Charybdis (Community law decides all): a member state is not required to make the grant of a residence permit to a third country national subject to the condition of lawful residence in a member state – but it apparently may do so. It is quite unlikely that this judgment once and for all settles the question.

The editorial board of the European Constitutional Law Review has solicited a number of contributions on presidential elements in government systems in Europe. At the origin of the project are some recent sweeping interventions of heads of state in the political arena. These are notably the (suspensive) veto of the domestic Act implementing the European Arrest Warrant Decision by Czech president Vaclav Klaus and the dissolution, against the will of both the government and the parliamentary majority, of the Assembleia da República by Portuguese president Jorge Sampaio in 2004. They excited our curiosity about the latent ingenuities of systems that we think to understand but of which we know so little.

Shortly before the European Council reached political agreement on the European Constitutional Treaty (18 June 2004), the Conseil constitutionnel [the French constitutional court], rendered a decision on the relationship between (secondary) community law and the French Constitution that will still be pivotal once the Constitutional Treaty has entered into force. Taken on 10 June 2004, the decision was only made public five days later. The Conseil feared that it would be presented as ‘a French abdication in the face of the European institutions’ and might influence the elections for the European Parliament of 13 June 2004.

One of the legal cornerstones of ‘formal federalism’ is the capacity of any rule of EC Law to override any rule, including those of constitutional rank, of the Member States. The primacy doctrine has been introduced by the Court of Justice in Costa v. ENEL (1964). It can be read in two ways. In the first place it may be held to imply the supremacy of Community law, i.e., the idea that Community law has a higher rank than even the national constitutions and is hierarchically superior to it, as the Court itself sometimes has expressed it (Simmenthal, 1978). This may be called the existential reading. Alternatively, there is a more modest interpretation implying mere practical priority or precedence, as in traffic rules. For this practical interpretation there are equally arguments to be found in the Court's case-law: the aims of the EC-treaty cannot be accomplished if domestic law were to prevail over Community law.