The definition of the content of national identity under Art. 4(2) TEU between the Court of Justice and the Constitutional Courts: an argument for the re-centralisation of the ‘dialogue between the Courts’

Abstract

The article discusses the question of the institutional subject competent to determine the content of national identity under Article 4(2) TEU: the Court of Justice or the national constitutional Courts. In principle, it is up to the national Courts to define the content of the identity of their own Constitution within the framework of the Court of Justice’s interpretation of Art. 4(2) TEU. By reviewing the concrete practice, it is shown that constitutional Courts are reluctant to refer questions in matters of identity, fearing that they will be second-guessed by the Court of Justice. This approach of the Court of Justice is due, it is argued, to the fact that most cases where national identity comes to the fore are not referred by the Constitutional Court of the State concerned, thus prompting the CJEU to second-guess the referring judge in its qualification of national identity. Therefore a recentralisation of the constitutional dialogue on identity issues is needed. In this regard, both the possibility of introducing a «reverse preliminary reference», and of extending the doctrines developed on the subject of dual preliminarity to matters of national identity are considered