Master 2 in European Law: European Constitutional Law
Seminar: Constitutional identity of European Union Member States
Introduction: relevance of the issue
Part One: constitutional identity from the point of view of Member States
Constitutional identity of states as a ‘countercheck’
I. Constitutional identity if states as a "countercheck"
A) Reactions to the rejection by states of constitutional singularity
a) Position of the Court of Justice
b) Constitutional case law of dualist states
B) Reactions to the challenge to the constitutional monopoly of states
C) Topicality of counterchecks
a) Spain: the uneasiness of the Melloni case
b) Czech Republic: the Slovak pensions case
c) Germany: Oxymorons:
- amicable threat: the Lisbon and Honeywell cases
- threatening dialogue: the Gauweiler case
- rejection of productive dialogue: the European Arrest Warrant case (ruling of 15 December 2015)
d) Denmark: the Ajos case
e) Italy: the Taricco and MAS case
II. Constitutionality review of secondary legislation in France
Introduction: Identification of the central issue
1: Preventive control of secondary legislative proposals
2: Direct a priori review
3: Direct a posteriori review
4: Key review: indirect a posteriori review
A) Situation prior to 2004
B) Clarification of 2004
1) Review of the law without involving the directive itself:
2) Review of the law on the grounds of the content of the directive: 4 problems
C) systematisation of 2006
Link to previous criteria
Crucial and distinctive
Consent of the principal
Claimed link to the treaty (Art. 4§2 EU)
Legal tightrope
Substantive proposals
Extension of 31 July 2017
D) Detailed explanation by the Council of State in 2007
III) Overall assessment
Part Two: from the constitutional identity of Member States to the constitutional identity of the European Union
1) Institutional and procedural autonomy and duty of loyal cooperation:
2) Respect for the national identity of Member States
3) From the national identity to the constitutional identity of Member States
A) Changes to the treaty framework
B) Changes to the European judicial approach
C) Consideration of national constitutional identity
a) Structural balance
b) Double substantive level
1) Case of shared values
2) Invocation of specific constitutional values
