In the pursuit of constitutional identity: a closer look at the Spanish and European cases vis-à-vis constitutional pluralism and judicial dialogue.

Abstract

In recent years, the notion of «constitutional identity» has become a popular political-constitutional resort as well as an indeterminate legal concept. It is difficult to try to define the enigmatic notion of «constitutional identity» and its scope of application. In view of the difficulties in arriving at a precise definition of constitutional identity and the absence of consensus among Academia, this article tries to provide a comprehensive definition through a series legal mechanisms for its identification and legal approximation. With this premise, the author analyses what constitutes national identity, in general, and attempts to define the Spanish and the European Union constitutional identity, in particular. In addition, the present paper attempts to address the challenges facing European integration as a result of the inherent conflict between the primacy of European Union Law and the counter-limit clause, enshrined in Article 4.2 TEU, relating to the obligation to respect its Member States» national identities. Finally, the author concludes with some self-reflections on the approach taken and proposes an active, constructive and continuous dialogue, driven by the European preliminary ruling procedure as a necessary and effective solution.

Summary:
I. Preliminary remarks and conceptual clarity: the nature of the EU and the notion of «constitutional identity» in the context of European integration; 1.1. EU nature, European integration and judicial challenges,
1.2. Constitutional identity as an undefined concept; II. Methods of identifying constitutional identity and its materialization in Spain; 2.1. Constitutional preambles, 2.2. Hierarchy of constitutional provisions, 2.3. Unamendability clauses, 2.4. Membership requirements, 2.5. Constitutional interpretation; III. The «national identity of the Member States» in the light of the legal-jurisprudential arrangements and its role in the application of EU Law primacy; 3.1. Materialization of constitutional identity at the EU level, 3.2. The evolution of constitutional identity as a counterlimit to the primacy of EU Law; IV. Alternative approach to a potential European constitutional identity: beyond the «common constitutional traditions»; V. Final considerations vis-à-vis deviating constitutional identities: constructive judicial dialogue as the prevailing solution to the dialectic tension between European primacy vs. the respect of constitutional identities.