The provision generally referred to as ‘the national identity clause’ is located Article 4(2) of the Treaty on European Union (TEU).  It says:

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. 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.

Article 4(2) replaces a more modestly formulated provision of Article 6(3) of the pre-Lisbon Treaty.  It is now situated between a provision laying down the principle of conferral (according to which competences not conferred on the Union in the Treaties remain with the Member States) and that laying down the principle of sincere cooperation. The full significance of the provision has not yet been explored in the case law. Three scenarios come to mind, in which the ‘national identity clause’ might prove significant. First of all, the clause may be invoked by the Member States challenging validity of an EU act, either independently or in conjunction with an argument based on the principle of subsidiarity. Here, it will relate to the question of when and how the EU should exercise its competences, especially those of a more general character, such as Article 114 TFEU, which enables the Union to adopt harmonising measures to improve the functioning of the Internal Market. Secondly, Member States may invoke national identity as a justification for a failure to fulfil obligations stemming from EU law. The Court of Justice, as an institution of the Union, will have to show respect to national identities by allowing national authorities to derogate from, for example, free movement provisions. Finally, Article 4(2) TEU could be seen as codification of the case law of national constitutional courts, who often claim that EU law supremacy is only conditional. Whether it is the protection of human rights or the preservation of the essential structures of national constitutionalism, they cannot, the argument goes, be overridden by EU law.

‘National identity’ case law

Looking at the case law (both of the Court of Justice of the EU and of national constitutional courts) we can see the use of the ‘national identity’ clause in all three contexts. In Spain v Eurojust Spain was challenging calls for applications issued by Eurojust, which demanded the submission of the application form in English. While Spain relied on the concern for the protection of their language independently, and not as part of their national identity, AG Maduro in his opinion did draw the connection, which indicates that national identity may be relevant for cases in which the validity of EU acts is at stake.

More interestingly, in two cases the Court of Justice confirmed that the ‘national identity clause’ may play an important role in the context of Member States’ derogations from EU law. In Sayn-Wittgenstein the Court had to decide whether an Austrian administrative decision correcting the surname of the applicant in the register of civil status by removing from it elements which referred to a title of nobility was compatible with EU law. The Court held that the matter fell within the scope of EU law because the applicant was an EU citizen who had exercised the right to free movement (she resided in Germany). Because of a confusion and inconvenience which were liable to arise from a divergence between the name she would use in Germany (which included the element referring to the tile of nobility) and the one she would have to use in Austria (deprived of that element) the decision of Austrian authorities was regarded to be an obstacle to free movement and thus in need of justification. In assessing this latter issue the Court held: ‘in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.’ It follows that Article 4(2) TEU was used as an element of the proportionality review in order to strengthen the claim that national authorities should enjoy a broad margin of administrative discretion where ‘the status of the State as a Republic’, as an element of Austrian identity, is at stake.

In  Runevič-Vardyn,  the applicant challenged the spelling of her name adopted by Lithuanian authorities. The applicant was of Polish ethnicity and wanted her first name and surname to be spelt according to the rules of the Polish language. Her predicament was moreover deepened by the fact that her Polish marriage certificate used the Polish spelling for her husband’s and now also her surname. By changing the spelling also of her married name Lithuanian authorities made her bear a different name from that of the applicant’s husband. The Court of Justice held that EU law ‘[did] not preclude the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the surname which one of its nationals had prior to marriage and the forename of that person, where those names were registered at birth in accordance with those rules’. However, the Court declined to rule conclusively on the question of whether Lithuanian authorities could be regarded to have breached EU law when they refused to amend the part of applicant’s name which she shared with the husband. If a violation was found, a question of justification would arise, and in this context the Court invoked the ‘national identity clause’ to point out that protection of the official national language by imposing the rules which govern the spelling of that language, constituted, in principle, ‘a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and [might] be taken into account when legitimate interests [were] weighed against the rights conferred by European Union law’. What is very interesting about this ruling is that the ‘national identity clause’ is held to possess a double function. First, it can act as an objective which prima facie justifies a restriction of an EU right (i.e. a derogation from an EU obligation imposed on the Member State). Secondly, the same concern may additionally play a role when the national court is balancing the concern in question against an EU right. This double function of the ‘national identity’ concern suggests that a reliance on it weighs very much in favour of national rules and against the right which an individual derives from EU law. If this is the case, and despite a seemingly more modest formulation used by the Court, the ‘national identity clause’ might actually have a trumping effect.

This goes in line with what AG Maduro observed in his opinion in Michaniki:

“The preservation of national constitutional identity can … enable a Member State to develop, within certain limits, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement.”

However, he does not quite want to accord the ‘national identity clause’ the trumping effect which the Court’s ruling in Runevič-Vardyn suggests. He held:

“[R]espect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.”

‘National identity clause’ and constitutional conflict

So the tension remains. National constitutional rules and practices can be invoked as expressions of values forming ‘national identity’ but there are limits to when such arguments are going to be conclusive. The best illustration that the Court of Justice of the EU will indeed look for an appropriate scope for the application of the ‘national identity clause’, bearing in mind its, in practice, trumping effect, is a recent ruling in a UK case – O’Brien v Ministry of Justice. The applicant, a part-time judge employed on a fee-paid basis and a barrister, tried to rely on an EU Framework Agreement on part-time work to assert his right to retirement pension calculated as a proportion pro rata temporis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Lithuanian government argued that the effect of the ‘national identity clause’ is that EU law simply could not apply to the judiciary. The Court of Justice did not agree with this proposition. It held:

“[T]he application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment, which constitutes one of the objectives of those acts, and to protect them against discrimination as compared with full-time workers.”

The EU Court is clearly assuming the competence to decide when the application of EU law should be seen as affecting national identity. Arguably, once it is accepted that national identity is being affected, the trumping effect of Article 4(2) TEU will be activated.

What is slowly emerging from the case law is that the ‘national indemnity clause’ could contribute to the resolution of the constitutional conflict in the EU, but only in a partial way. As we know, the constitutional conflict in the EU concerns a series of issues, ranging from the acceptance of the principle of supremacy, its limits and the basis on which national courts should disapply conflicting national law,  to the discussion of who is the final arbiter of constitutionality in the EU, the Court of Justice of the EU or national constitutional courts. Finally, there is a difficult question of how standards of constitutional review are to be constructed. Should EU acts be reviewed in the light of national standards or should it absorb those standards and in this way preserve its supremacy over national law? A direct reference in the EU Treaty to ‘national identities’ and the imposition on the European Union an obligation to respect them should be seen as way of softening the edges of EU law in both ways. On the one hand, reliance on ‘national identities’ is grounded in EU law and the Court of Justice of the EU is very much in control when the argument will succeed. It allows the concern for national identity to play a role, but within the limits it delineates. The German Federal Constitutional Court, on the other hand, maintains that Article 4(2) TEU is recognition of a national constitutional court’s power to safeguard national constitutional identity by carrying out review of EU acts by that court (the Lisbon judgment). If an EU act does not respect national identities national courts will have the power to resist the obligations stemming for the state from the act. What ‘national identity’ encompasses will for this purpose be determined by the national (constitutional) courts. If so, supremacy of EU law may have suffered a serious blow.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.