1. Constitutional identity of a Member State in EU law Łukasz Stępkowski Katedra Prawa Międzynarodowego i Europejskiego Uniwersytet Wrocławski Izba Adwokacka we Wrocławiu

2. the concept of a constitutional identity in EU law The notion of „national identities of Member States the EU shall respect” has been present since the Treaty of Maastricht (ex art. F-1/6 para. 3 TEU), yet it has not been accorded a great amount of attention either by way of secondary legislation, or any voluminous ECJ/CJEU jurisprudence EU law scholars have told of either „national” or „constitutional” identity only sparingly, and the CJEU would only mention it in passing (eg. in case C-473/93, Commission of the European Communities v Grand Duchy of Luxemburg, 2 July 1996 Or, no mention was made at all – in its first edition (1995) of the monograph on EU law, Craig and de Búrca omitted the idea altogether the difference of wording has been largely ignored, and „national” and „constitutional” identity has been used interchangeably, as per M. P. Maduro’s opinion, delivered at 20 September 2005 in C-53/04 Cristiano Marrosu and Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate, where the AG spoke of „constitutional identity of the Member States which the European Union has undertaken to respect”, referring to art. 6 para.3 TEU

3. the current Treaty foundations and content of the principle The ToL has changed art. 6 para. 3 TEU to what is now art. 4 para. 2 TEU: 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. As seen above, the written content of the „respect” in question has been expanded, adding that „essential State functions” are to be respected as well Over time, the Court’s case-law has been updated further as to the concept of „constitutional identity”,and it has been suggested that „the European Union is obliged to respect the constitutional identity of the Member States. That obligation has existed from the outset (…) The national identity concerned clearly includes the constitutional identity of the Member State (AG Maduro, case C-213/07, 8 October 2008, Michaniki AE)”

4. State of play As of now, the law of the EU appears to be in a phase of what is called a „merger” within a system of the shared exercise of sovereignty (Hofmann, Rowe, Türk, Administrative Law and Policy of the EU, p. 925-926, Oxford 2011), not in a „superimposition” of it over national legal orders This „merger” has been considered both from a perspective that the current EU treaties form nothing short of a constitutional set of norms, and from a classic standpoint of public international law (see Mayer, Wendel in Avbelj, Komárek (eds), Constitutional Pluralism in the EU and Beyond, p.149, 2012) Additionally, there are views that the coexistence of EU and national law is far from consonant, but can be explained by the simple plurality of law that is not necessarily unified in substance (Barents, Fallacy of Multilevel Constitutionalism, Constitutional Pluralism…,p. 166); far from unity, EU and national law are in a state of competition, or even an incoming war (p. 179) The less alarmist views speak of simple limitation of consonance, as a legal expression (Bogdandy, Principles of EU Constitutional Law, p. 40, 2010) In this legal dimension, it is for this paper to outline the moves made by the CJEU, which serves as a chief spokesperson for the content of the principle in question, fashioning just how much respect the EU ought to have…

5. jurisprudence of the Court First attempt at preliminary reference under new TEU : Case C-3/10 Franco Affatato v Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n. 3 di Rossano, order of 1 October 2010 : the CJEU does not accord any added value to the national court’s question of art. 4.2 TEU The CJEU refers the case back with guidance of the principles of equivalence and effectiveness

6. Second attempt at a preliminary reference : Judgment of the Court (Second Chamber) of 22 December 2010, Case C-208/09 Ilonka Sayn- Wittgenstein v Landeshauptmann von Wien Concerning a national norm of constitutional nature The constitutional identity used expressly by a Member State (para. 74) to justify a restriction on a freedom of movement Commission contends that „constitutional history” may be taken into account (para. 80) The CJEU confirms that in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic Justification deemed proportionate

7. jurisprudence of the Court (again) Attempts at a Member State defence under art. 4.2 TEU : Judgment of the Court (Grand Chamber) of 24 May 2011, C-51/08 European Commission v Grand Duchy of Luxemburg As to the need relied on by the Grand Duchy of Luxembourg to ensure the use of the Luxemburgish language in the performance of the activities of notaries, it is clear that the first head of claim in the present dispute relates exclusively to the nationality condition at issue. While the preservation of the national identities of the Member States is a legitimate aim respected by the legal order of the European Union, as is indeed acknowledged by Article 4(2) TEU, the interest pleaded by the Grand Duchy can, however, be effectively safeguarded otherwise than by a general exclusion of nationals of the other Member States (see, to that effect, Case C ‑ 473/93 Commission v Luxembourg [1996] ECR I ‑ 3207, paragraph 35) Proportionality not satisfied

8. jurisprudence of the Court (and again) Judgment of the Court (Second Chamber) of 1 March 2012, Case C-393/10 Dermod Patrick O’Brien v Ministry of Justice An attempt by the Latvian Government’s argument to posit that the application of European Union law to the judiciary has the result that the national identities of the Member States are not respected, contrary to Article 4(2) TEU (unsuccessful) The CJEU again does not delve into any in-depth consideration („cannot have any effect on national identity”, para. 49)

9. jurisprudence of the Court (one more time) Judgment of the Court (Second Chamber) of 12 May 2011. Case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others – spelling of surnames According to several of the governments which have submitted observations to the Court, it is legitimate for a Member State to ensure that the official national language is protected in order to safeguard national unity and preserve social cohesion. The Lithuanian Government stresses, in particular, that the Lithuanian language constitutes a constitutional asset which preserves the nation’s identity, contributes to the integration of citizens, and ensures the expression of national sovereignty, the indivisibility of the State, and the proper functioning of the services of the State and the local authorities (…) Article 4(2) EU provides that the Union must also respect the national identity of its Member States, which includes protection of a State’s official national language It follows that the objective pursued by national rules such as those at issue in the main proceedings, designed to protect the official national language by imposing the rules which govern the spelling of that language, constitutes, 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 may be taken into account when legitimate interests are weighed against the rights conferred by European Union law. Measures which restrict a fundamental freedom, such as that provided for in Article 21 TFEU, may, however, be justified by objective considerations only if they are necessary for the protection of the interests which they are intended to secure and only in so far as those objectives cannot be attained by less restrictive measures (see Sayn-Wittgenstein, paragraph 90 and the case-law cited) Guidance judgment : EU law does not preclude protection of specific spelling, if proportionate

10. jurisprudence of the Court (last) Judgment of the Court (Grand Chamber) of 4 June 2013. C-300/11 ZZ v Secretary of State for the Home Department Member State plea of inadmissibility : State security remains the responsibility of solely the Member States. The question referred thus relates to an area governed by national law and, for that reason, does not fall within European Union competence CJEU’s response : although it is for Member States to take the appropriate measures to ensure their internal and external security, the mere fact that a decision concerns State security cannot result in European Union law being inapplicable Additionally, plea of national security does not void a person’s rights of defence under EU law

11. opinions of the Court’s Advocates General Opinion of Mr Advocate General Jääskinen delivered on 12 July 2012. Case C-202/11 Anton Las v PSA Antwerp NV : para. 59 : National identity, which the EU institutions are obliged to respect under Article 4(2) TEU, includes linguistic aspects of a constitutional nature of a Member State which lay down, inter alia, the official language or various official languages of the State and, where appropriate, the territorial subdivisions in which the various official languages are in use. (37) The concept of ‘national identity’ therefore concerns the choices made as to the languages used at national or regional level (…) Opinion of Advocate General Kokott delivered on 30 May 2013. Case C-151/12 European Commission v Kingdom of Spain : para. 34 : The possibility cannot be ruled out that EU law may [due to art. 4(2) TEU], in federal or decentralised systems, be transposed through the subsidiary application of national rules is not precluded Opinion of Mr Advocate General Bot delivered on 2 October 2012. Case C-399/11 Stefano Melloni v Ministerio Fiscal : para. 138 : I do not overlook the fact that the European Union is required, as Article 4(2) TEU provides, to respect the national identity of the Member States, ‘inherent in their fundamental structures, political and constitutional’. (45) I also note that the preamble to the Charter points out that, in its action, the European Union must respect the national identities of the Member States. A Member State which considers that a provision of secondary law adversely affects its national identity may therefore challenge it on the basis of Article 4(2) TEU Opinion of Advocate General Torresi delivered on 10 April 2014 : Cases C ‑ 58/13 and C ‑ 59/13 Angelo Alberto Torresi : Pytanie drugie, które CNF przedkłada na wypadek, gdyby odpowiedź na pytanie pierwsze była twierdząca, sprowadza się do tego, czy art. 3 dyrektywy 98/5 jest nieważny ze względu na naruszenie art. 4 ust. 2 TUE, zgodnie z którym Unia zobowiązana jest do szanowania tożsamości narodowej państw członkowskich nierozerwalnie związanej z ich podstawowymi strukturami politycznymi i konstytucyjnymi. Nie jest dla mnie jasny powód, dla którego przyjmowanie do izby adwokackiej obywateli Unii, którzy uzyskali tytuł zawodowy w innym państwie członkowskim, stanowić by miało takie zagrożenie dla włoskiego porządku prawnego, że można by uznać, iż podważa to włoską tożsamość narodową. W tym względzie prawdą jest, że Trybunał w pewnych szczególnych okolicznościach ze względu na ochronę tożsamości narodowej dawał państwom członkowskim możliwość odstąpienia od obowiązków nałożonych przez prawo Unii, takich jak poszanowanie fundamentalnych wolności. Nie oznacza to jednak, że jakiekolwiek postanowienia zawarte w konstytucji narodowej mogą ograniczać jednolite stosowanie przepisów prawa Unii, czy stanowić parametr legalności tych przepisów [NOT AVAILABLE IN ENGLISH].

12. Concluding remarks Constitutional / national identity under new TEU : Substantive obligation to respect on part of the EU Not a point-blank denial of action for the EU due to a supposed lack of competence A theoretically valid defence plea when derogating from fundamental freedoms (imperative requirement), subject to proportionality Court of Justice still unwilling to delve deeper into the content of that principle

13. Thank you for your attention