28 March 2025, Pan-European University in Bratislava, Slovakia
The main target group of the conference were researchers working at various universities in the Slovak Republic and abroad, as well as international legal experts and experts from state administration offices. Overall, it can be stated that the conference provided a space for the presentation of selected legal issues and in particular created a platform for formulating reflections for the future and inspired further discussions within the academic environment.
Prospective thinking about law is not only desirable but also required to ensure that law and legal systems do not become obsolete, ineffective or unjust. Just like there is no crystal ball for life, there is not one for law either. That said – the trends of legal science do not arise out of thin air – they develop over time. Current socio-economic changes and the prevalent trends in legal science form the basis of estimations about what the future of law will look like. The following conference proceedings contain a unique collection of think pieces, in which a wide array of experts from all over the world share their thoughts on how they envision the future of law.
At the outset of this event, Prof. Michael Siman briefly introduced the project within which his contribution has been prepared. He said the project titled „Equality in an Ever-Integrating Europe” was financed by the Hungarian Central European Academy, headquartered in Budapest. Approximately ten professors from various Central European countries were participating in this project, including representatives from Hungary, Poland, Slovenia, Croatia, Serbia, and two scholars from the Pan-European University in Bratislava. Within the framework of this project, they were analyzing key issues related to the equality of EU Member States, focusing on perspectives from the point of EU law, constitutional law, international law, criminal law, and other legal disciplines.
Then, Prof. Michael Siman presented his research on „Protection of national identity – tolerated ground of breaching EU law?”
The interplay between protecting national identity and the primacy of EU law remains a contentious issue, particularly when Member States invoke their constitutional identity to challenge the application of EU law. This blog explores whether the protection of national identity under Article 4(2) TEU provides a legitimate basis for breaching EU law. Through an analysis of the legal framework established by Article 4(2) TEU, the proportionality and compatibility assessments applied by the Court of Justice, and relevant case law, it is argued that while national identity can serve as a valid justification for derogations, it cannot be used as an unlimited excuse to disregard EU law. Moreover, this ongoing tension highlights the complexities of constitutional pluralism within the European Union.
Article 4(2) TEU read as follows: „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.“
This provision requires the EU to respect the national identities of Member States, including their constitutional, political, and administrative structures, aiming to balance the EU’s integration objectives with preserving the distinctive characteristics of Member States. The Court of Justice has interpreted Article 4(2) TEU as offering Member States a legal basis for justifying deviations from EU law. However, such justifications are only valid if they satisfy two key criteria: proportionality and compatibility with EU principles. The Court has taken a cautious approach to national identity claims, stressing that any measures invoked must be genuine, consistent, and proportional. National identity cannot be used arbitrarily; it must be clearly essential to the constitutional order of the Member State in question.
When Member States invoke national identity as a justification for deviating from EU obligations, the Court of Justice applies two critical principles.
The proportionality test requires that any measure taken must be appropriate, necessary, and the least restrictive means available to achieve the goal of protecting national identity. This test involves a careful assessment of whether the measure genuinely serves a legitimate objective, if alternative measures could achieve the same result, and whether the impact on EU law is proportionate to the objective being pursued. The CJEU consistently applies this proportionality test to ensure that national identity claims cannot be used as a tool to bypass EU obligations. This means Member States cannot simply invoke their national identity to justify actions that conflict with EU law, such as trade barriers or restrictions on the free movement of goods, services, or individuals. The Court ensures that national identity claims are balanced against the underlying goals of the EU, such as the internal market, fundamental rights, and the rule of law.
The compatibility test stipulates that the measure must not undermine the fundamental principles of EU law, such as the rule of law, fundamental rights, and non-discrimination. This ensures that Member States cannot use national identity as a justification for actions that would contradict the core values of the EU, including human rights, democracy, and equality.
The margin of appreciation granted to Member States in defining their national identity is a crucial element in the Court’s analysis. While the Court of Justice acknowledges that Member States have some discretion in this regard, it consistently stresses that this discretion is not unlimited and it tends to adopt a cautious approach, particularly when there is a risk of undermining fundamental EU values. This ensures that national identity claims do not infringe upon the core principles of the Union, such as the rule of law and fundamental rights.
Melloni, case C-399/11 involved Spain’s refusal to execute an Italian European Arrest Warrant based on concerns over the violation of the right to a fair trial, which was part of Spain’s national constitutional identity. The Court of Justice ruled that the principle of mutual recognition of EU judgments takes precedence over national constitutional identity protections, as long as EU fundamental rights are upheld.
The Court of Justice of the EU has addressed the protection of national identity in several significant cases.
In Sayn-Wittgenstein, case C-208/09, Austria’s refusal to recognize a noble title, which was intended to preserve the constitutional principle of equality, was upheld by the Court. The Court found the measure to be proportionate and legitimate under Article 4(2) TEU. This case highlights the Court’s acceptance of measures that are genuinely grounded in fundamental constitutional principles, reinforcing the importance of protecting national identity while balancing it with EU law obligations.
In Commission v Hungary, case C-78/18, the Court of Justice ruled that Hungary’s foreign funding regulations were disproportionate, highlighting the limits of invoking national identity when core EU principles are at stake. Hungary claimed that the legislation was in line with its national identity and it had the sovereign right to regulate NGOs operating within its borders, particularly in the context of protecting national security and preserving its own social and political values. However, the Court emphasized that national identity must be balanced against the fundamental principles of EU law, including the freedom of movement and non-discrimination principles.
In Commission v Poland, case C-619/18, the European Commission challenged Poland’s judicial reform, specifically the reform of the Supreme Court and the lowered retirement age of judges, arguing it undermined the independence of the judiciary, which is a core value of the EU. Poland defended its reforms by invoking national constitutional identity, claiming the reforms were within its sovereign rights. The Court ruled that Poland had violated EU law by interfering with judicial independence, but it emphasized that respect for national identity should not override fundamental EU principles like judicial independence.
Although the original aim of incorporating the protection of national identity into the Treaty of Lisbon may have been primarily to safeguard the material core of the constitution and ultimately to limit the absolute primacy of Union law, the Court of Justice has so far not accepted any limitation on the primacy of Union law in its case law.
In this regard, the German Federal Constitutional Court, when assessing the compatibility of the Treaty of Lisbon with the Basic Law, held that, based on Article 4(2) of the TEU, the constitutional principles of the Member States are incorporated into Union law. Along with the principles of loyalty, subsidiarity, and proportionality, this should ensure that the Union’s institutions exercise their powers in a considerate manner under all circumstances. However, the Court of Justice, on the other hand, has repeatedly reaffirmed the unconditional primacy of Union law over the legal systems of the Member States, including their constitutional norms, emphasizing the need for the unity and effectiveness of Union law. Claes (2021) suggests in this regard that this discrepancy between EU-level and national-level understandings of identity contributes to the complexity of applying identity protection as a ground for potentially breaching EU law.
National identity claims can be valid under Article 4(2) TEU, but they are not without limits. The Court of Justice has emphasized that measures aimed at safeguarding national identity must be genuine, proportionate, and aligned with core EU principles. Case law consistently reflects that the Court applies a strict proportionality test to prevent Member States from using national identity claims as a means to evade EU law.
The significance of the first sentence of Article 4(2) TEU is thus undeniable, as it directly links Union law with national constitutional law. Based on this provision, selected elements of the national identity of Member States, as reflected in their constitutional systems, could be incorporated into the primary law of the Union. The identification of these elements depends on the conceptual framework of national identity as an autonomous notion of Union law, which is gradually defined through the case law of the Court of Justice based on information provided by national courts and the Member States concerned.
Finally, the protection of national identity does not serve as a justification for breaching Union obligations but rather plays a role in determining the scope of Union duties imposed on Member States. Thus, the protection of national identity is only a legitimate justification in specific situations where the measures are proportionate and do not undermine the fundamental principles of EU law. The evolving case-law of the Court of Justice continues to refine the balance between national identity and EU obligations, ensuring that Member States cannot exploit national identity claims to circumvent EU law.
