Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty

Abstract

The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication.

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