Three Meanings of Constitutional Identity and Their Prospects in the European Union

Forms and Functions of Constitutional Identity¹

“Constitutional identity” is not a term that one would find in the text of constitutions. Constitutions do not speak about their own identity. They have it, if only in the sense that no constitution is exactly like the other. The multiple identities are the basis of comparative constitutional research. For purposes of constitutional doctrine and adjudication, identity in this rather banal sense is of little interest. Constitutional provisions can be interpreted and applied without a reference to identity. Even if the predominant legal method favours a contextual instead of an isolated approach to constitutional interpretation and adjudication, it is not the identity of the constitution in this sense that plays a role.

In a narrower and legally momentous sense, the term “constitutional identity” refers to the core elements of the constitution, which determine its type, its basic structure and leading principles, in short, those provisions without which the constitution would no longer be the same, whereas there are numerous other rules whose change or even abolition would leave constitutional identity unaffected. Often, the core elements enjoy a special legal status. In Germany, for instance, they are exempted from amendment by Article 79(3) Basic Law, the so-called eternity clause. The German Constitutional Court locates the identity of the Basic Law exactly in this article and thus gives the notoriously fuzzy notion a relatively clear legal meaning.

Finally, one can speak of constitutional identity in the sense that the people who live under a certain constitution regard it as a lasting expression of the popular will as to how their political rule and social relations should be ordered. This popular perception does not depend on a detailed knowledge of the constitution, but on a general awareness of its basic elements and practical relevance as well as on the conviction that it constitutes altogether a good order under which it is worth living, so that the majority of citizens can identify themselves with it. This form of constitutional identity, although dependent on the effectiveness of the constitution, is but loosely coupled with its legal nature. It rather operates on the symbolic level.

Applied to the very core or the symbolic effect of a constitution, constitutional identity is by no means banal. It is high-toned and as such inapt for everyday use. It will rather remain latent most of the time. There is no need to resort to it as long as the identity of a constitution can be taken for granted. Conversely, if it comes to the fore, this will often indicate that the integrity of a constitution is questioned or threatened. It is thus not by chance that the German Constitutional Court mentioned the term “identity of the constitution” for the first time in connection with the threat that European law posed to the integrity of national constitutional law after the European Court of Justice had proclaimed the priority of European law over national law, including the constitutions of the member states.²

In the famous Solange I-decision of 1974, the Court gave the term legal relevance by ruling that Article 24 of the Basic Law, which authorizes Germany to transfer powers (“Hoheitsrechte”) to international organizations, does not permit a change of “the constitution’s basic structure (“Grundstruktur”) on which its identity is founded”.³ Consequently, Germany may not ratify an international treaty that would negatively affect the identity of the Basic Law. Moreover, the Court declared that the primacy of European law ends where the identity of the constitution begins. As a consequence, each interpretation of a Treaty provision by the European authorities including the CJEU, which gives it a meaning not compatible with the identity of the Basic Law may not take effect in Germany.

In Solange I, the Constitutional Court counted the protection of fundamental rights among the basic structure and derived from this assumption its own power to review European laws or legal acts as to their compatibility with the Bill of Rights of the Basic Law, at least as long as (“solange”) a similarly effective protection of fundamental rights was lacking on the European level. Twelve years later, in the Solange II-opinion, the Court suspended this power because it found that meanwhile a sufficient standard of European fundamental rights protection had been developed by the CJEU. Yet, the power was not abandoned, but can be activated whenever the conditions change.⁴

The Court emphasized this power again in its decision on the Lisbon-Treaty.⁵ Here, the Court found support in Article 4(2) TEU, according to which the EU respects the national identity of the member states “inherent in their fundamental structures, political and constitutional”. In addition, the Court derived from the identity as expressed in Article 79(3) BL in connection with national sovereignty a barrier against abandoning the right to self-determination and transforming the EU into a state. Even a constitutional amendment would not be able to overcome this barrier. According to the Court, a decision of such a magnitude can only be taken by the people themselves in a new constitution.⁶

As these decisions show, constitutional identity has mainly assumed a defensive function on the national level. While internally, Article 79(3) BL was sufficient to protect the core of the Basic Law against amendments after which the constitution would have no longer been the same, the eternity clause seemed insufficient vis-á-vis external threats. Here, a stronger notion was deemed necessary to establish a barrier against claims of foreign law that were regarded as threat to the integrity of the national constitution. Identity offered this added value, because it postulates the constitution not just as a body of high-ranking legal norms, but an expression of the national will and a formative element of the nation’s identity.

The EU Treaties as a “Functional” Constitution

While the identity of national constitutions has been widely discussed after the German Court’s Lisbon-judgment, a similar discussion about European constitutional identity is missing. The editors of the Yearbook are aware of this and want to initiate such a discourse.⁷ They ask, whether a supranational entity like the EU can have or may even need a constitutional identity, which function it fulfils or effect it has, and what it might consist of. However, all these questions make sense only if the first one can be answered in the affirmative. Should constitutions be limited to states, the following questions would be superfluous. Constitutional identity presupposes a constitution. Does the EU have a constitution?

The legal basis of the EU is a treaty concluded by sovereign states under international law. However, this treaty fulfils a number of functions which, within states, are fulfilled by the constitution. The Treaty of Rome established the then European Economic Community, defined its purpose, equipped it with powers necessary to pursue the purpose, provided the EEC with organs, defined their function, and determined the conditions under which they may exercise their power. Insofar, the Treaties follow the constitutional pattern. They also enjoy precedence over secondary European law and, according to the CJEU, also over national law and thereby share an essential characteristic of constitutions.

What then distinguishes the European Treaties from a state constitution? First, their appearance is not that of a constitution. They are much longer. The explanation is that the provisions which fulfil a constitutional function are a small minority in the Treaties, and the Charter of Fundamental Rights that was added to the Treaties in 2009 did not change this substantially. The vast majority of provisions concern matters that no state regulates in its constitution, but in ordinary law. So, the whole law of economic competition is part of the Treaties, not of secondary European law. This is not a misconception of the member states, but a consequence of the fact that they did not have a constitution in mind when they drafted the Treaties.

Secondly and even more important, state constitutions are today generally regarded as acts of self-determination of a nation, a people or a society as to the form of its political existence and the modalities of political rule. This essential element of modern constitutionalism is missing in the EU. The EU does not give itself a constitution, it owes its existence to the will of states and receives its legal basis from them by way of agreement. The people of the EU are not involved nor is the Treaty attributed to them as the source of all public authority. With regard to its existence, purpose, competencies, organization, procedures etc., the EU is not self-determined, but hetero-determined.

One might assert that there are constitutions which were enacted by a treaty of sovereign states, such as the constitution of the German Empire of 1871. But here, the treaty was only the mode by which a constitution for a newly created state was brought about. In the treaty, the founding states gave up the constituent power and transferred it to the new entity. The nature of a treaty was thus consummated with its conclusion. The new entity was from the very moment of treaty conclusion onwards self-determined. Even if the founding states retained a share of the amendment power for themselves, they exercised it as an organ of the new political entity, not as sovereign states.

Nothing like that has happened in the EU. Up to now, the member states are not prepared to hand the constituent power over to the EU. Amendments to the European Treaties require the conclusion of another international treaty that has to be ratified in all member states according to the provisions of their national constitutions. Discussed in terms of sovereignty, this means that the member states transfer certain sovereign rights to the EU, but not sovereignty itself. The EU exercises public authority, but cannot claim to be sovereign. It seems difficult to argue that a political entity that depends on others with regard to its existence, its purpose, its powers, etc., is sovereign.⁸

This would have been so even if the failed Constitutional Treaty of 2004 had entered into force. While it is true that the member states changed the procedure for amendments by admitting new actors in the stage of preparation, nothing was changed regarding the final decision. In particular, the EU citizenry was not involved. The amendment power remained in the hands of the member states. The failed document would not have endowed the EU with the right to self-determination about its legal foundation. Like the preceding treaties, the treaty of 2004 would have been an international treaty with the only difference that it was labelled a “constitution”.

Still, what matters is not the label, but the legal nature, and this continues to be that of a treaty. Hence, if one looks for a basis of a European constitutional identity, it can only be found in the Treaties. One may call them “constitution” in a functional sense. But then it is necessary to keep the difference in mind. It is a thin notion of constitutionalism, with the democratic origin, that is an integral part of the achievement of constitutionalism, left out. Among the various meanings of the term “constitutional identity”, certainly the symbolic meaning is directly linked to the democratic element of constitutionalism. Are the Treaties nevertheless capable of serving as a basis for a specific European constitutional identity? And why would the EU need such an identity in the first place?

Weakness of European Constitutional Identity

The Treaties mention “identity” only in connection with the member states, not the EU, and they do not speak of constitutional identity, but of national identity. The EU is obliged to respect it. This shows that the member states as the authors of the Treaties saw their identity endangered by the EU, not the other way round. Constitutional identity comes in insofar as national identity is declared to be “inherent in the fundamental structures of the member states, political and constitutional”. The relationship appears more clearly in the German text where the national identity “finds expression” in the fundamental political and constitutional structures. The constitutions are seen in an auxiliary position regarding national identity, a difference that disappears in the jurisprudence of the CJEU.⁹

However, one cannot conclude from the silence of the Treaties with regard to a European constitutional identity that it does not have one. The national constitutions do not stipulate a constitutional identity either. Nevertheless, they have it, however it is defined and what it entails. There is no principal obstacle against a European constitutional identity to the extent that the Treaties may be called a constitution. If their quasi-constitutional character is accepted, albeit reduced in comparison to the achievement of constitutionalism,¹⁰ their identity can hardly be doubted, in any case in the banal sense of the term. But also the form of identity that is constituted by the basic structure or the core elements can be ascertained in the Treaties.

However, the Treaties draw their identity mainly from the fact that they are not a constitution in the sense of state constitutions. Rather, their supranational elements are what accounts for the identity of the European quasi-constitution. Among these core elements is the fact that the European public authority is not entrusted to the EU organs by a European people, but by states that preserve their sovereignty and only transfer a number of sovereign powers to the EU. This is the reason for the contractual nature of the quasi-constitution, and following from that for the competence-competence of the member states and, as its safeguard, the principle of conferral. It also finds an expression in the organizational structure with the Council and not the Parliament in the centre.

Substantively, the four economic freedoms form part of the core. The Lisbon Treaty added the values of the Union, which all member states have to adhere to. Together with the Charter of Fundamental Rights, they are also part of the core of the European legal foundation.¹¹ While the supra-national elements distinguish the legal foundation of the EU from the member states’ constitutions, they share the values and a bill of rights. Just as the EU has to respect the constitutional identity of the member states, the member states are obliged to acknowledge these values. Like in many state constitutions, legal consequences are attached to these provisions. Non-compliance with Article 2 TEU may trigger the sanctions provided for in Article 7 TEU.

However, these items are rarely discussed in terms of a European constitutional identity. If the experiences in the member states are valid also for the EU, the reason may be that until recently the integrity of the Treaties was not under a threat which made it necessary to resort to identity. As far as the member states are concerned, every expansion of transferred competences by way of Treaty interpretation limits the scope and impact of national constitutions. The EU is less affected from the side of the member states because they do not have the last word in determining the meaning of European law. However, it is telling that the CJEU felt compelled to invoke European identity as defined in Article 2 TEU vis-à-vis Poland and Hungary when these member states questioned some of the values of the EU.¹²

Remains the symbolic identity. Like in Article 4(2) TEU that seeks to protect the national identity and only indirectly the constitutional identity of the member states, the point of reference is the identity of the EU as expressed in and supported by the Treaties as Europe’s functional constitution. Constitutional identity in the symbolic sense refers not so much to the specific legal character of the constitution, but to its capability to generate an identification of the European citizens with the EU. The EU as the object of identification must be distinguished from the constitution as the means to bring forth or contribute to the acceptance by the people. Yet, in terms of acceptance, the EU lags far behind the member states.

What explains the difference? States are the political form of existence of a nation or society, to which one belongs regardless of the differences in interests and ideals, wealth and education, town and country, etc. In Germany, the word “Schicksalsgemeinschaft” is in use. The EU is not perceived as a “Schicksalsgemeinschaft” by its citizens. It is an artificial entity composed of states with limited tasks. Up to now, it has not been able to generate a sense of belonging among its citizens similar to that of states. States may be criticized, the performance of their rulers contested, even their political system questioned. But this leaves their right to existence unaffected. Rejection of a government, even attempts to change the political system can go along with a deep affection for the country.

The EU, to the contrary, is constantly confronted with doubts about its necessity or utility. A growing number of citizens regard it as a threat to the national identity. There is a revival of national identity within the member states of the European Union, not only in some new ones, but also in the founding states. It does not remain in the private sphere, but is organized politically and attracts votes in national and European elections. But even where the existence of the EU and its usefulness in general is not contested—and this seems still to be a significant majority of the EU citizens—no feeling of belonging and no solidarity across borders comparable to that within the states has developed. The “ever closer Union” lacks a solid popular basis.

Different Sources of Identity

Could an increase of symbolic constitutional identity help to solve Europe’s legitimacy problem? And why is it now perceived as a problem, whereas it did not bother the people and the European institutions very much in the earlier periods of European integration? The turning point seems to be the moment in history when people began to notice that the EU was no longer just a common market with a lot of advantages for the majority of citizens, but had become a political project, that affected the conditions of people’s life more and more, but was not based on an expressed will of the citizenry. Rather, where the citizens were asked to endorse the progress of European integration, such as with the Constitutional Treaty of 2004, it was rejected.

The immense progress that European integration had made over time, had come by stealth, to a very large extent through the jurisprudence of the CJEU, that is to say, incrementally in a non-political mode and without public debate.¹³ Stealth had been a condition of the progress of integration, but the more the integration advanced the more did stealth become a problem. The legitimacy resources that were sufficient for the common market are not sufficient for the political entity that the EU has become over time. These are some reasons for the rise of the identity discussion in Europe, whereas the current identity discussion in many member states is rather caused by the increasing rift within national societies, on the one hand, and the threat to national identity that emanates from the EU, on the other.

The question is whether there are sources for a European identity and in particular, whether there are chances that the European Treaties or perhaps a European constitution in the full sense could fill the identity gap of the EU. In order to answer this question, it may be helpful to change the perspective for a moment and ask what serves as basis for the identity of states. Mostly still the nation, its uniqueness or otherness, often hand in hand with an assumed superiority over other nations, the grand periods in national history, the nation’s achievements like military victories or its persistence in spite of existential crises, its culture and religion, science and technological inventions that were produced in the country, even sporting success.

The constitution does not figure in this list, and, as a matter of fact, national identity based on a country’s constitution is rare. Constitutions are expected to function legally. Their function is fulfilled if their provisions are complied with. That it serves, in addition, as a basis for national identity is not the rule. Yet, under favourable conditions, juridically successful constitutions may exceed their regulatory function and contribute to the integration of society. This happens if the people see their aspirations and conceptions of a just order reflected in the constitution and thus develop not only a utilitarian, but also an emotional relationship towards the constitution, so that it becomes a part of the national identity.¹⁴

Still, there are examples of states whose constitutions have played an important role in the formation of national identity, the most conspicuous one being the United States. Why is that so? The US emerged from a triumphant revolution against a colonial power, for which the Declaration of Independence stands, and it was established as a state by adopting the Constitution in 1787. It had had no independent history, culture, faith on which it could have built its own identity. It rather comprised immigrants of very different national traditions and cultures. The Constitution was what they shared and were proud of, being the first political entity based on a constitution in the modern sense, and it promised them a better life than in their countries of origin, which they had to leave.

Another example is West Germany. The identity of the Federal Republic before unification was to a large extent based on the Basic Law. However, different from the US, it emerged from a national catastrophe that had destroyed the traditional sources of national identity. The nation was divided, the history was loaded with the Holocaust, the cultural heritage was needed as the last remaining bond around the two German states. The Constitution succeeded in filling this gap. It symbolized the rise of the country after a devastating defeat, its return into the circle of civilized nations and in addition the better alternative compared to the other German state under communist rule.¹⁵

However, this success would not have been possible without the Federal Constitutional Court whose jurisprudence bestowed on the Basic Law a degree of relevance for political behaviour and social relations that no previous German constitution had had, and it made this relevance constantly visible for the people. The Constitutional Court is the institution that the public trusts most. Even judgments that greatly irritated the people and drew heavy protest lowered the approval for moments, but left the general popularity of the institution unaffected. In the end, something as rare as a “constitutional patriotism” could emerge, a term that will hardly be found in other countries.¹⁶

However, the post-World War II-conditions of West Germany’s constitutional patriotism are so unique that they cannot serve as a model for the EU. But couldn’t the US be a model? The EU shares with the US its multinational and multicultural citizenry. But it differs from the US in that European people did not leave their home countries and were ready to start anew in a different environment. Rather, they stay in their traditional national environment and remain part of its tradition, culture and education, its political system, its national discourse. It is true that the EU guarantees every European citizen free movement in the EU, but the vast majority of citizens is not keen on living in a different country and under unfamiliar conditions.

Auspices for a European Constitutional Identity

If one asks, based on this insight, what the auspices for a European constitutional identity are, it will be seen that almost all preconditions that contributed to the symbolic effect of state constitutions are missing. The beginnings are not marked by a “constitutional moment”.1¹⁷ It is true that European integration had hardly been possible without the devastating consequences of World War II. But the War had ended twelve years before the European Economic Community was founded, and the peace that has existed ever since among the member states, although an important achievement, is no longer attributed to the Union. Even if one imagines Europe without the EU, the consequence is not war.¹⁸ The economic integration, with which it began, does not furnish the emotional basis on which identity can be built.

Moreover, the European Treaties are not of a sort to acquire the symbolic function that state constitutions may fulfil under favourable conditions. Not conceived as a constitution, they did not appeal to the people’s emotions. They were technical law that does not easily lend itself to veneration. They contained detailed rules for the common market, but lacked any emphatic exclamation like “Die Würde des Menschen ist unantastbar”, that helps to root a constitution in the minds and hearts of people. The people could not perceive them as a constitution. When the EU found that the time had come for a Constitutional Treaty, it failed in two referenda, because it looked like more Europe, where a majority found that there was already too much Europe.

In addition, the sheer amount of provisions in the Treaties, which has increased, not decreased over time, makes it difficult to recognize them as a constitution, because most of them are not of a constitutional nature. The Treaties do not observe the difference between constitutional law and ordinary law that is crucial for constitutionalism. Constitutional law contains the fundamental principles and basic rules for the political process and for political decision-making. But it leaves the decisions themselves to the political process and to the preferences of those political groups which obtained a majority in the election, whereas in the EU, many of these decisions are already taken in the Treaties. This explains their excessive volume, compared to state constitutions.

One should not play this down as a matter of legal aesthetics. It is a cause of Europe’s legitimacy problem. All those rules, although far from what one would expect in a constitution, participate in the constitutionalization of the Treaties in the wake of the two ground-breaking judgments of the CJEU in 1963 and 1964.¹⁹ They are withdrawn from the political process. The winner is the CJEU. It can interpret and shape them according to its perception of the Common Market. The member states as well as the European Parliament are not only side-lined, they cannot change the result, even if they think that it has little to do with their intention or is detrimental. As far as the constitutionalized Treaties reach, elections do not matter. This is one of the biggest, but least noticed sources of the European democratic problem.²⁰

Would it then be helpful to revive the idea of a European constitution in the full sense of the term? This would require two fundamental changes. The first one would be to relieve the Treaties from the big number of provisions that are not of a constitutional nature and to downgrade them to ordinary law, so that that they are again open for democratic decision-making, while on the constitutional level only those provisions would remain, which resemble a constitution in the general understanding. Secondly, it would be necessary to root the legal basis of the EU in an act of self-determination of the European citizens. After a long history of European integration without participation of the citizenry, this would be a precondition of the symbolic effect of constitutions, not a guarantee.

However, before taking this step, one has to be aware that it would mean a transformation of the European Union into a European state. As soon as the member states hand the constituent power over to the EU itself they turn it into a state, regardless of whether this is intended or not. As a consequence, the EU would be transformed from a supranational organization established and supported by states into a selfsupporting political entity. No longer would the states decide which competences they transfer to the EU, but the EU would decide which competences it takes from the states. The Council in which the member states are represented would become a second house of the Parliament and no longer be responsible for the degree and pace of the integration.

Under current conditions, it seems highly unlikely that this is what a majority of the people want. But irrespectively of popular sentiments and also of the prohibition by the Basic Law, one has to ask whether it is desirable. The major question is how the EU would generate the increased democratic legitimacy that it needs when turned into a state. Up to now, the legitimacy of the EU flows mainly from the democratic process in the member states, whereas the EU’s own legitimacy that flows from the European elections is rather low. Where are the sources for a genuine European legitimacy in a state that lacks the societal preconditions of a lively democratic process, the European intermediaries between the electorate and the institutions and the Europe-wide political discourse?

One should rather realize that the identity, even the uniqueness, that distinguishes the EU from all other political entities lies in its unprecedented nature as an entity between traditional nation states on the one hand and modern supranational organizations on the other. It handles, on the one hand, the growing number of problems that can no longer be efficiently solved within the narrow framework of nation states, but it leaves, on the other, the responsibility for the purposes and powers of the EU as well as the bulk of political decision-making to the national level where the prospects for democratic legitimation and accountability are better than on the supranational level. This unique model is the more promising basis for a genuine European identity than a constitution.²¹