The Rise of Constitutional Identity Review in Europe: A Critical Assessment

On Thursday  12th and Friday 13th September, Spark attended a conference at University College London (UCL) on the rise of constitutional identity review in Europe: a critical assessment. During the conference, the panellists discussed the concept of constitutional identity and its meaning for the constitutional courts of the EU Member States and the CJEU.

On  the first day of the conference, the two keynote speakers, Professor David Feldman (Cambridge University and former international judge, Constitutional Court of Bosnia and Herzegovina) and judge Francesco Viganò (Italian Constitutional Court and Professor of Criminal Law, Bocconi University in Milan) offered a practical perspective on the issue. The speakers considered the notion of constitutional identity, and whether it can be deduced from merely reading the constitution on its own, or if it needs to be understood also in light of the social structure, as linked to the social and national identity. The influence of various state actors, such as politicians, lawyers and judges, on the constitutional identity was also examined. Furthermore, constitutional identity was analysed in relation to national sovereignty and counter-limits stemming from EU law.

During the second day, the speakers analysed, inter alia, the constitutional identity in various EU Member States. Gabor Halmai discussed the issues around the constitutional identity in Hungary, examining the recent constitutional amendments and drawing a historical perspective of the activities of the Hungarian Constitutional Court. Maryam Hunter-Henin examined the principle of laicity in the French legal order from the viewpoint of constitutional identity. Nicola Lupo discussed the dialogic construction of constitutional identity in Italy and the reluctance of Italian courts to request preliminary rulings from the CJEU in matters related to the constitutional identity. Finally, Anna Sledzinska-Simon examined the current legal developments in Poland and the constitutional changes taking place from within, affecting the constitution without actually amending it, using the example of the National Council of Judiciary.

In the last panel, the speakers (Theodore Konstadinides, Pietro Faraguna and Cristina Fasone) turned to the interplay between the EU law and the constitutional identities of the Member States. In this part of the conference, the speakers inter alia dealt with the question of whether there is a common EU constitutional identity. The answers varied greatly: on the one hand, it was indicated that there are some CJEU decisions and opinions, such as the CJEU opinion on the accession of the EU to the ECHR (Case Opinion 2/13 of 18/12/2014), that may indicate that there is an understood common EU constitutional identity. On the other hand, the speakers underlined that while there might be EU constitutional identity that would cover the basic values, such as the separation of powers and the abolition of the death penalty, it still remains very limited, as was evidenced for example during the euro crisis. It was also stated that as the national courts are in general more and more willing to refer cases for preliminary questions, the CJEU may have more opportunities to render judgments of constitutional identity relevance in the near future. At the same time, codification of the EU constitutional identity is not necessary, as there is already an over-codification of EU primary law.