41
UDC: 342:347.9:061.1EU
Marjan Kos
*
The Relevance of National Identity in 
European Union Law and Its Potential  
for Instrumentalisation
**
1. Introduction
The last couple of years have seen an expansion of the toolbox of populist govern-
ments, slowly leaning away from what are considered core European constitutional 
values, such as the protection of human rights, the rule of law and the principle of 
democracy. Most notably in connection with European Union (EU) law, we are wit-
nessing various attempts by Member States to evade incumbent obligations. This paper 
studies one particular constitutional instrument—the concept of national identity—and 
its potential for (ab)use by these inventive governments. The concept itself has recently 
received notable academic attention but has also proved to be a tempting and possibly 
powerful legal tool, which illiberal populists seem to want to include in their arsenal.
3
*
 Master of Law, Assistant at the Department of Constitutional Law at the Faculty of Law, University 
of Ljubljana; marjan.kos@pf.uni-lj.si.
**
 The author’s master’s thesis Constitutional Identity of EU Member State, defended at the Faculty of 
Law, University of Ljubljana, in September 2015 served as the basis for sections 2, 3 and 4 of the 
paper. Research was duly updated.
 A first draft of the paper was presented at the “Ljubljana – Catania Conference on Contemporary 
Issues of International and EU Human Rights Law”, on 9 July 2018 at the Faculty of Law, University 
of Ljubljana. Comments made by contributors at the conference were used in the preparation of 
this paper, and for these I am very grateful.
 An early version of the paper was prepared for the purpose of the 3
rd
 level course Human Rights and 
was kindly read and commented on by prof. dr. Saša Zagorc. His remarks undoubtedly raised the 
quality of the paper, for which I am very grateful.
 Final substantive updates of the text were made before final submission on 30 August 2019.

42
Zbornik znanstvenih razprav – V olume LXXIX, 2019
References to national identity have become more common as the Member States 
begin to identify the concept as a hub through which they can communicate their fun-
damental constitutional concerns regarding EU law. Its use in the dialogue at the highest 
judicial level is especially interesting, and the Court of Justice of the European Union 
(CJEU) slowly begins to engage in the debate as well. The judicial understanding of the 
concept will also serve as the basis for this discussion. However, a promising venue for 
constitutional cooperation could turn into its opposite as in the present unpredictable 
political atmosphere some Member States governments may try to apply it with a hope 
of evading EU law obligations.
1
 The possibility of such application—labelled here as in-
strumentalisation—for political purposes calls for a closer look at the concept of national 
identity. To evaluate the existence of such risk, this paper approaches the topic by tack-
ling ambiguities first, surrounding national and constitutional identity by providing an 
overview of the concept. I explain how national and constitutional identities are under-
stood in national and EU fora, and what the perceived substance behind these concepts 
is, simultaneously trying to distil a general approach, hoping to bring some order into 
the chaos surrounding the concept. T o evaluate the possibility of its instrumentalisation, 
the key points are the operationalisation and the possible roles of the identity clause from 
Article 4(2) TEU. This conceptual framework leads us to the second part, consisting of 
an illustration of the possible two-faced nature of national identity in EU law. I focus 
on two recent CJEU cases: The T aricco case(s) and the Coman case. I discuss possible 
implications of the two different uses of the concept by national courts for human rights 
protection in the EU. Based on Coman, where an attempt at circumventing EU law was 
made by way of Article 4(2) TEU, I arrive at the final part of the paper, where I position 
the concept in the context of the current political and constitutional atmosphere in the 
EU. Taking the example of Hungary, which essentially offers itself as an example, I look 
at the possibility of instrumentalisation of the arguments of national or constitutional 
identity, evaluate possible outcomes and consider the implications of instrumentalisation 
for the validity of constitutional identity-based arguments in the future. I argue that the 
possibility of a successful (ab)use of the concept for political expediency, resulting in the 
lowering of human rights protection, is highly unlikely.
2. National and Constitutional Identity in the EU
At the heart of this paper lies the first sentence of Article 4(2) of the Treaty on 
European Union (TEU), which encapsulates the so-called identity clause, stating that
1
 Kelemen, Pech, Why autocrats love constitutional identity and constitutional pluralism: Lessons 
from Hungary and Poland, Working Paper No. 2 – September 2018, URL: https://reconnect-europe 
.eu/wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf, 
pp. 9–11.

43
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
“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.”
A comprehensive differentiation between the notions of national and constitutional 
identity would exceed both the intention and the extent of this paper.
2
 I proceed from the 
understanding of the term national identity as broader than, but encompassing, the no-
tion of constitutional identity.
3
 However, while national identity covers broader elements 
of a Member State’s identity, constitutional identity only includes core elements of the 
Member States constitutional orders.
4
 It is generally accepted that constitutional identity 
forms a part of national identity within the meaning of Article 4(2) TEU. This follows 
from the reference to “fundamental structures, political and constitutional ” in the clause 
itself,
5
 making it a constitutional, rather than a cultural concept.
6
 This is also generally 
accepted by the national courts and the CJEU.
7
 National apex courts
8
 predominantly 
adopted the terminology of constitutional identity, comprising of fundamental consti-
tutional values, pertinent to each Member State. The CJEU has so far followed this ap-
proach, accommodating these same values in within Article 4(2) TEU, as discussed below.
Since the aim of this paper is to present the possible uses of national constitutional ar-
guments and their implications for the relationship between EU and the Member States, 
2
 For a more in-depth analysis, see: Reestman, The Franco-German Constitutional Divide (2009), 
pp. 375–384.
3
 This follows the changes in the wording from the Treaty of Maastricht. See: Rodin, National 
Identity and Market Freedoms After the T reaty of Lisbon (2011), pp. 12–14.
4
 Martí, T wo Different Ideas of Constitutional Identity (2013), p. 20.
5
 Besselink, National and Constitutional Identity Before and After Lisbon (2010), pp. 44, 47; von 
Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 1427, 
1430; van der Schyff, The Constitutional Relationship Between the European Union and Its Member 
States (2012), p. 567; Rideau, The Case-law of the Polish, Hungarian and Czech Constitutional 
Courts on National Identity and the “German Model” (2013), p. 258; Konstadinides, The Consti-
tutionalization of National Identity in EU Law and Its Implications (working draft), URL: https://ssrn. 
com/abstract=2318972, p. 3–4; Preshova, Battleground or Meeting Point? Respect for National 
Identities in the European Union (2012), pp. 273, 274; Dobbs, Sovereignty, Article 4(2) TEU and 
the Respect for National Identities (2014), p. 326.
 This view is supported in AG opinions, for example AG Maduro in C-213/07 Michaniki, and AG 
Bot in C-399/11 Melloni, especially para. 142.
 For (partially) differing views, see: Claes, National Identity: Trump Card or Up for Negotiation? 
(2013), p. 123–124, Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts (2012), 
pp. 267, 309.
6
 Faraguna speaks of the “constitutionalization of the concept of identity”, see: Faraguna, Taking 
Constitutional Identities Away from the Courts (2016), p. 498. For a similar view, see: von 
Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), p. 1427.
7
 Reestman, The Franco-German Constitutional Divide (2009), p. 381.
8
 The highest national courts, competent to authoritatively interpret the constitution.

44
Zbornik znanstvenih razprav – V olume LXXIX, 2019
the central focus is on the part of national identity entailing constitutional identity and 
protected by Article 4(2) TEU. Therefore, the terms are used interchangeably, referring 
to core constitutional values of the Member States.
3. The Substance of Constitutional Identity Under Article 4(2) TEU
3.1. A (Con)textual Analysis
The first step in the effort to understand constitutional identity as part of Article 4(2) 
TEU has to be the textual interpretation of the said article. It can be divided into three 
parts,
9
 of which the second is essential for the purposes of this paper. There, the reference 
to “constitutional structures” first implies that only arguments, which form a part of a 
national constitutional legal order are relevant. Second, it follows from the term “funda-
mental” that the clause is additionally limited to core elements of a national constitution-
al legal order.
10
 This prevents the Member States from claiming special protection for less 
important parts of their constitutions. Therefore, TEU itself demands respect for some 
national constitutional elements, which are thereby lifted to the level of valid arguments 
within EU law and themselves form a part of EU law.
11
Although not yet recognised in case law, at least two additional constraints follow 
from EU law. The first one is Article 2 TEU, as the Member States cannot invoke argu-
ments, deviating from the fundamental values on which the EU is founded, listed in the 
article. Furthermore, it follows from Article 6 TEU that human rights standards from 
the Charter of Fundamental Rights of the European Union (EU Charter) should also be 
safeguarded. This is imperative for the present discussion, as it sets the floor, meant to 
prevent the lowering of EU’s fundamental constitutional standards.
12
9
 The first part consists of the demand for equality among the Member States, the second demand 
for respect of national identities of the Member States, inherent in their fundamental structures, 
political and constitutional, and the third one for respect of essential State functions, highlighting 
national security.
10
 Von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 
1430–1431.
11
 Van der Schyff, The Constitutional Relationship Between the European Union and Its Member 
States (2012), p. 568; von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National 
Identity (2011), p. 1431.
12
 Von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), p. 
1430; Rodin, National Identity and Market Freedoms After the Treaty of Lisbon (2011), p. 15; 
Faraguna, Constitutional Identity in the EU – A Shield or a Sword? (2017), p. 1639.

45
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
3.2. How to Determine the Scope of Constitutional Identity?
An in concreto determination of the substance of constitutional identity has to be 
founded on two sources. The starting point is that while the CJEU is the authoritative 
interpreter of EU law—identity clause included—it is not competent to interpret na-
tional law.
13
 Therefore, both the structure of EU law and the concept of national identity 
demand consideration of the interpretation of constitutional identity by the Member 
States, by which they themselves determine their own constitutional identities. A proper 
methodological approach would be, therefore, to allow the Member States to deter-
mine the substance, and the CJEU to determine the function of constitutional identity.
14
 
Defining the scope of national identity is, therefore, a collective task of both the national 
courts and the CJEU.
15
3.2.1. The Member States and Constitutional Identity
From the perspective of the Member States,
16
 any determination of the core of their 
constitutional orders has to consider the text of the national constitutions first.
17
 A de-
tailed comparative survey exceeds the scope of this paper. However, at least a methodo-
logical approach should be established.
The distinction between “ordinary” and “fundamental” constitutional provisions has 
been a traditional subject of constitutional law, and several venues for their identification 
have been developed. One should focus on (1) the initial statements of preambles of the 
constitutions, (2) the rules for constitutional amendment and (3) the “European claus-
es,”
 18
 which all usually offer some indication of the “core” parts of the constitution.
19
13
 Article 19 TEU.
14
 See: Besselink, National and Constitutional Identity Before and After Lisbon (2010), p. 45; Claes, 
National Identity: Trump Card or Up for Negotiation? (2013), pp. 122–123; Wendel, Lisbon 
Before the Courts: Comparative Perspectives (2011), pp. 134–135. This approach is followed by 
the CJEU, for example in C-36/02 C-36/02 Omega, of 14 October 2004, para. 39.
15
 Koncewicz, Constitutional Identity in the European legal space and the comity of circumspect 
constitutional courts (2015), p. 207.
16
 For a comprehensive overview of national case law, see: Besselink, Claes, Imamović, Reestman, 
National Constitutional Avenues for Further EU Integration, URL: http://europarl.europa.eu/
thinktank/en/document.html?reference=IPOL-JURI_ET(2014)493046.
17
 Applicable to the Member States with a constitution in the formal sense.
18
 For a comprehensive analysis, see: Claes, Constitutionalizing Europa at Its Source (2005), pp. 
81–125; Albi, “Europe” Articles in the Constitutions of Central and Eastern European Countries, 
(2005), pp. 399–423.
19
 See: Grewe, Methods of Identification of National Constitutional Identity (2013), p. 37; von 
Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 1431–
1433; Martí, T wo Different Ideas of Constitutional Identity (2013), pp. 24–30.

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Zbornik znanstvenih razprav – V olume LXXIX, 2019
Since these provisions may prove to be too general to make definite conclusions, the 
pertaining case law of national apex courts serves as the second source. They are responsi-
ble for the interpretation of the constitution and so its core will often only be revealed by 
way of judicial interpretation of the text. In this context, the debate over constitutional 
limits to European integration, beginning with the “controlimiti” case law of the Italian 
Constitutional Court (ICC) (Frontini,
20
 Granital,
21
 Fragd
22
) and the “Solange” case law
23
 
of the German Federal Constitutional Court (FCC),
24
 is very insightful, since in these de-
cisions already specific fundamental constitutional values were put to the fore. Later on, 
in the wake of the T reaty of Maastricht, and especially since the T reaty of Lisbon, national 
apex courts in several Member States followed suit and defined where the final limitations 
to EU law lie,
25
 including recently the Hungarian Constitutional Court (HCC).
26
Focusing on the substance of constitutional identity as understood by the national 
courts, a certain degree of convergence is noticeable. Constitutional identity is regularly 
linked to the principles of sovereignty and independence, fundamental organisational 
aspects of the state, principle of democracy, fundamental rights, and the rule of law.
27
 
That notwithstanding, it is the individualities of these core principles that prove to be 
most contentious, as exemplified by T aricco case(s).
28
In the functional sense, constitutional identity is understood by the Member States 
courts as a limitation on the substance of EU law, which is not allowed to interfere with 
their core constitutional values.
29
 Importantly, the Member States courts often refer to 
20
 Frontini v Ministero delle Finanze [1974] 2 CMLR 372.
21
 Dec. No. 170 of 8 June 1984 S.p.a. Granital v. Amministrazione delle Finanze dello Stato.
22
 Dec. No. 232 of 7 April 1989 S.p.a. Fragd v Amministrazione delle Finanze dello Stato.
23
 BVerfGE 37, 271 2 BvL 52/71 (Solange I), of 29 May 1974 and BVerfGE 73, 339 2 BvR 197/83 
(Solange II), of 22 October 1986.
24
 As noted by von Bogdandy and Schill, decisions on the relationship between EU law and domestic 
constitutional law play an important role, as they illustrate best the areas of conflict. Therefore, the 
decisions evolving around European integration are particularly useful in analysing the substance 
of constitutional identity. See: von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for 
National Identity (2011), p. 1433.
25
 For an overview of these decisions, see: Claes, Constitutionalizing Europa at Its Source (2005), pp. 
124–129.
26
 Decision 22/2016. (XII. 5.) AB.
27
 Von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 
1439–1440; Claes, Constitutionalizing Europa at Its Source (2005), p. 129.
28
 For an overview of areas of conflict, see: Albi, Erosion of Constitutional Rights in EU Law (2015), 
esp. pp. 159–160, 161–166, 175–182.
29
 Leading in this field is the FCC case BVerfG 2 BvE 2/08 (Treaty of Lisbon), of 30 June 2009, pa-
ras. 241, 339. The approach was followed by the Polish Constitutional Court, with a distinction 
as to the solutions to a possible conflict: K 32/09, of 24 November 2010; for a similar position 
of the Czech Constitutional court, see: Pl. ÚS 19/08 (Treaty of Lisbon I) of 26 November 2008. 

47
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
Article 4(2) TEU as a supporting argument for their “identity review” of EU law and as 
a foundation for the obligation on behalf of the EU to respect their constitutional iden-
tity.
30
 In this sense, it operates as a communication hub between the national courts and 
the CJEU. The national courts, putting forward national constitutional arguments, will 
often base their arguments on Article 4(2) TEU.
3.2.2. The Court of Justice and Constitutional Identity
As already pointed out, it is the CJEU which is competent to authoritatively the 
identity clause. The analysis of its case law should also look beyond mere references to 
identity since, like the national courts, the CJEU dealt with the question of accommo-
dating national constitutional arguments without relying on identity.
31
Without delving into the case law of the CJEU in detail, we can find that after the 
entry into force of the Lisbon T reaty,
32
 the CJEU usually refers to Article 4(2) TEU when 
it is faced with national constitutional concerns.
33
 As far as the success of those national 
arguments is concerned, the CJEU seems to narrow its application when national con-
siderations pertain to (what it deems to be) less important constitutional concerns,
34
 
while on the other hand, it shows a willingness to accommodate clear and serious consti-
tutional concerns, sometimes leaving the final decision to the national court.
35
 In several 
The positions of the French and the Spanish Constitutional courts, expressed when reviewing the 
Treaty establishing a Constitution for Europe, are similar. See: 2004-505 DC, of 19 November 
2004 (France) and DTC 1/2004 of 13 December 2004 (Spain). For an overview of case law, 
see: Preshova, Battleground or Meeting Point? Respect for National Identities in the European 
Union (2012), pp. 278–284; Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts 
(2012), pp. 266–271; Rideau, The Case-law of the Polish, Hungarian and Czech Constitutional 
Courts on National Identity and the “German Model” (2013), p. 244–258; von Bogdandy, Schill, 
Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 1435–1439.
30
 BVerfG 2 BvE 2/08, of 30 June 2009, para. 240 (Germany); SK 45/09, of 16 November 2011 
(Poland); in the context of Article I-5 of the Treaty establishing a Constitution for Europe, also: 
2004-505 DC, of 19 November 2004 (France); DTC 1/2004 of 13 December 2004 (Spain); 
Decision 22/2016. (XII. 5.) AB. of 30 November 2016, paras. 54, 62 (Hungary).
31
 C-213/07 Michaniki; C-36/02 Omega.
32
 Most relevant cases before the Treaty of Lisbon: C-379/87 Groener, C-473/93 Commission v. 
Luxembourg, C-36/02 Omega and C-213/07 Michaniki.
33
 Before the Treaty of Lisbon entered into force, CJEU explicitly referred to the identity clause only 
in C-473/93 Commission v. Luxembourg, while either the parties or the advocates general referred to 
the clause in at least seven cases. It should be noted here that at the time the article was not subject 
to jurisdiction of the CJEU, as defined in Article 46 TEU.
34
 Such cases include C-213/07 Michaniki and C-393/10 O’Brien.
35
 In two cases, the final decision was left to the national court: C-391/09 Runevič-Vardyn, and 
C-438/14 Bogendorff von Wolffersdorff. The CJEU also showed deference in C-51/08 Commission v. 
Luxembourg and in C-208/09 Sayn-Wittgenstein.

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Zbornik znanstvenih razprav – V olume LXXIX, 2019
cases (Omega
36
, Sayn-Wittgenstein
37
, Runević-Vardyn
38
, Bogendorff von Wolffersdorff
 39
 and 
in M.A.S. and M.B.
40
) national constitutional identity was successfully invoked as an 
argument to modify (or derogate from) obligations under EU law.
In material terms, the CJEU considered national constitutional arguments under 
the identity clause when dealing with national cultural issues (language),
41
 fundamental 
state structures,
42
 fundamental rights and fundamental constitutional values.
43
 The un-
derstanding of national identity by the CJEU coincides with the understanding of con-
stitutional identity by national courts in the sense that (only) core constitutional values 
are protected by Article 4(2) TEU. Additionally, when the CJEU allowed for limitations, 
first, it determined whether these pursue goals corresponding to the goals of the EU.
44
It follows from the above discussion that national constitutional courts invoke cer-
tain core aspects of their constitutional order against the EU (including fundamental 
constitutional values and fundamental rights) and that the CJEU will consider these 
arguments in the context of the identity clause and, in cases of serious concerns, accom-
modate them within EU law.
4. The Operationalisation of Constitutional Identity through  
Article 4(2) TEU
After having identified the substance of constitutional identity, the next step is to an-
alyse the function of Article 4(2) TEU. The question here is: In what way does the CJEU 
accommodate national identity within EU law?
In the functional sense, a distinction has to be made between primary and secondary 
EU law. With regard to primary law, the identity clause can be used either as an inter-
pretation tool or as a separate base for derogation from primary law obligations.
45
 When 
36
 C-36/02 Omega.
37
 C-208/09 Sayn-Wittgenstein.
38
 C-391/09 Runevič-Vardyn.
39
 C-438/14 Bogendorff von Wolffersdorff.
40
 C-42/17 M.A.S. and M.B.
41
 C-391/09 Runevič-Vardyn; C-202/11 Anton Las; C-51/08 Commission v. Luxembourg.
42
 C-208/09 Sayn-Wittgenstein.
43
 C-208/09 Sayn-Wittgenstein; C-399/11 Melloni; C-42/17 M.A.S. and M.B.
44
 Konstadinides, The Constitutionalization of National Identity in EU Law and Its Implications 
(working draft), URL: https://ssrn.com/abstract=2318972, p. 5; Besselink, Case note: CJEU (Case 
C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien: respecting constitutional identity 
in the EU) (2012), p. 681. 
45
 Note that this does not mean an exception to the principle of primacy, rather than an accommodation 
of national considerations into EU law. Such a derogation is not contrary but in line with EU law.

49
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
it comes to secondary law, an excessive interference with constitutional identity may 
cause an annulment of an EU act or, more interestingly, a derogation from an obligation 
stemming from secondary law, which would cause the disapplication of the said act in 
the concrete case–and a possible exception to the principle of primacy.
46
 For a practical 
application of these possibilities, we must again look at the relevant national and the 
CJEU case law.
It is well established that for national apex courts, the core of national constitutions is 
the final limit to European integration. They reserve (as ultima ratio) the right to review 
EU law and its compatibility with the national constitution. This is an understandable 
position, as it can hardly be expected from the national courts to allow what they under-
stand to be a violation of their own constitutional provisions. In this regard, Article 4(2) 
TEU brings nothing new to the table, apart from its functionality mentioned above as a 
communication hub and a corresponding change in terminology.
The main area for debate is the case law of the CJEU.
47
 From a relatively limited 
number of cases, it can nevertheless be inferred that the CJEU seems to be responsive to 
national constitutional identity arguments. Therefore, at least a rough framework of the 
CJEU’s methodology can be distilled. Following from Sayn-Wittgenstein (reaffirmed in 
Bogendorff von Wolffersdorff and in Coman), national identity claims fall under the public 
policy exemption. They must be interpreted strictly, so that its scope cannot be deter-
mined unilaterally by each Member State without any control by the EU institutions. 
Furthermore, it may only be relied upon if there exists a genuine and sufficiently serious 
threat to a fundamental interest of society.
48
 Regarding specific circumstances of each 
case, the CJEU accords the national authorities a certain discretion within limits laid 
down in the Treaties.
49
 The CJEU will first consider, whether the proposed limitations 
on EU law can be deemed to pursue legitimate aims, and subsequently subject them to 
46
 On the debate around the principle of primacy, see: von Bogdandy, Schill, Overcoming Absolute 
Primacy: Respect for National Identity (2011), p. 1419; Kumm, The Jurisprudence of Constitutional 
Conflict (2005), p. 303; Kumm, Ferreres Comella, The Primacy Clause of the Constitutional T reaty 
and the Future of Constitutional Conflict in the EU (2005) 2–3, p. 479; Besselink, National and 
Constitutional Identity Before and After Lisbon (2010), pp. 47–48. There is no case yet where this 
would happen, however, von Bogdandy and Schill mention C-213/07 Michaniki and C-165/08 
Commission v. Poland as examples, where the CJEU left the door open.
47
 For a comprehensive overview of case law, see: Burgorgue-Larsen, A Huron at the Kirchberg Plateau 
or a Few Naïve Thoughts on Constitutional Identity in the Case-law of the Judge of the EU (2013), 
pp. 275–304.
48
 C-208/09 Sayn-Wittgenstein, para. 86; C-438/14 Bogendorff von Wolffersdorff, para. 67; C-673/16 
Coman, para. 44.
49
 C-36/02 Omega, para. 31; C-208/09 Sayn-Wittgenstein, para. 87; C-438/14 Bogendorff von 
Wolffersdorff, para. 68. 

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Zbornik znanstvenih razprav – V olume LXXIX, 2019
a proportionality analysis.
50
 Relating to the question of legitimacy, the importance of the 
requirement that the invoked constitutional value must, to be deemed legitimate, “be 
compatible with EU law”
51
, can hardly be overstated. Although the CJEU never directly 
stated that the Member States arguments must comply with Article 2 TEU values (or 
Article 6 TEU guarantees), this requirement carries the message that national constitu-
tional arguments, aimed at a deviation from the core constitutional values of the EU, will 
not be accepted as valid grounds for derogation.
When the CJEU acknowledges the national constitutional value as a legitimate aim 
for interference with EU law, it has three options. It may decide to carry out the pro-
portionality analysis by itself and confirm
52
 or reject
53
 the national argument, thereby 
making the final decision, or (in a preliminary ruling procedure) it can leave the final de-
cision to the national court.
54
 It is already implicit in this that the CJEU does not accept 
the absolute nature of constitutional identity. Although a specific value or right belongs 
to the core of a Member State’s constitution, it will still be subjected to a proportionality 
analysis to determine if it warrants a derogation from EU law.
55
 Such an analysis will also 
include an allocation of the weight to the national argument of constitutional identity 
and in that sense, the CJEU will evaluate whether the invoked value is actually a part 
of the constitutional identity of the Member State.
56
 Seemingly, the CJEU may here be 
stepping on thin ice as to the respective competences of the CJEU and national courts, 
however, this approach shows its value in the wake of recent attempts of instrumentali-
sation of the mechanism. Therefore, the CJEU’s proportionality analysis will include the 
consideration of the relevance of the national constitutional provision,
57
 as well as the 
importance of the EU provision and the level of unification in the respective field.
58
 The 
50
 Von Bogdandy, Schill, Overcoming Absolute Primacy: Respect for National Identity (2011), pp. 
1441–1446; van der Schyff, The Constitutional Relationship Between the European Union and Its 
Member States (2012), p. 579; Rodin, National Identity and Market Freedoms After the T reaty of 
Lisbon (2011), pp. 29–34.
51
 C-438/14 Bogendorff von Wolffersdorff, para. 71. See also: C-208/09 Sayn-Wittgenstein, para. 91.
52
 C-36/02 Omega; C-208/09 Sayn-Wittgenstein.
53
 C-51/08 Commission v. Luxembourg; C-202/11 Anton Las.
54
 C- 391/09 Runevič-Vardyn; C-42/17 M.A.S. and M.B.
55
 Although his may at first seem a provocative standpoint, it is predominantly accepted, as Article 
4(2) TEU would otherwise give a carte blanche to national courts to tailor the application of EU 
law according to their preferences.
56
 In C-213/07 Michaniki and in C-393/10 O’Brien CJEU rejected constitutional arguments as part 
of the Member State’s constitutional and national identity.
57
 Examples of this are C-208/09 Sayn-Wittgenstein, where it applied a very deferential proportional-
ity analysis, and C-202/11 Anton Las, where it rejected the Member State’s arguments.
58
 Van der Schyff, The Constitutional Relationship Between the European Union and Its Member 
States (2012), pp. 580–582.

51
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
result is that in certain well-founded cases, the CJEU allows for a differentiated applica-
tion of EU law between the Member States. This is confirmed by the abovementioned 
condition that constitutional identity may only be validly relied on if there is a genuine 
and sufficiently serious threat to a fundamental interest of society.
59
As noted above, although the CJEU has yet to state that in a case, the result of the 
described process cannot be in contradiction with the fundamental values of the EU, 
set out in Article 2 TEU.
60
 The Member States are also bound by the EU Charter when 
implementing EU law, which means that the human rights standards set by the CJEU 
and, taking note of Article 6 TEU and Article 51 of the EU Charter, ECtHR, form the 
“final frontier”.
61
5. The Oscillatory Nature of Constitutional Identity
To show the possible Janus-faced nature of the identity clause and its potential im-
plications for the protection of human rights, I look at two recent CJEU cases, which 
hallmark judicial cooperation at the highest level.
62
5.1. Constitutional Identity as a Positive Force in Protecting Individual Rights
The T aricco cases show the possible use of constitutional identity as an argument to 
raise the level of human rights protection. In the “Taricco I” case
63
 the Grand Chamber 
held that Italian courts were to disapply the provisions of the Italian Penal Code, regulat-
ing the statute of limitation on fraud affecting the EU, thus enabling them to complete 
their (otherwise lengthy and complicated) trials. They had to do this in cases where the 
national provisions would “prevent the imposition of effective and deterring punish-
ments in a significant number of cases of serious fraud, affecting the financial interests 
59
 C-208/09 Sayn-Wittgenstein, C-673/16 Coman.
60
 This is also the position of the European Parliament. See: Situation of fundamental rights: standards 
and practices in Hungary. European Parliament resolution of 3 July 2013 on the situation of funda-
mental rights: standards and practices in Hungary (pursuant to the European Parliament resolution 
of 16 February 2012) (2012/2130(INI)), statements K, M.
61
 C-673/16 Coman, para. 47. This does not mean human rights will always trump constitutional 
identity claims. This follows from C-391/09 Runevič-Vardyn (where minority language rights and 
rights to private life were affected by national identity claims) and C-208/09 Sayn-Wittgenstein, re -
affirmed in C-438/14 Bogendorff von Wolffersdorff (where the principle of equality took precedence 
over the right to private life). See: van den Brink, What’s in a Name? Some Lessons for the Debate 
Over the Free Movement of Same-Sex Couples Within the EU, (2016), pp. 441–443.
62
 Both cases were decided within the preliminary ruling procedure by the Grand Chamber and both 
procedures were initiated by national constitutional courts.
63
 C-105/14 T aricco.

52
Zbornik znanstvenih razprav – V olume LXXIX, 2019
of the EU” (the so-called T aricco rule),
64
 based on Article 325(1) of the Treaty on the 
Functioning of the European Union (TFEU).
The Italian Supreme Court and the Milan Court of Appeals were unimpressed by this 
interpretation and referred the trials under their jurisdiction to the ICC. The main con-
cern was that rules on the statute of limitation in the Italian legal system fall within the 
substantive limb of criminal law and are thus covered by the principle of legality. They 
especially highlighted the principle of non-retroactivity and the demand for the certainty 
of criminal law. The ICC referred the case to the CJEU, highlighting that the T aricco rule 
could violate Arts. 25(2) and 101(2) of the Italian Constitution.
65
 It proposed an inter-
pretation of the ruling as allowing the national courts to exclude its application in cases, 
where it would violate the constitutional identity of the Member States.
66
 It sought con-
firmation for its view
67
 that EU law should, according to Article 53 of the EU Charter 
and Article 4(2) TEU, allow a higher level of protection than granted by Article 49 of the 
EU Charter and Article 7 of the European Convention on Human Rights (ECHR), ex-
pressly pointing out that this interpretation does not question the principle of primacy.
68
In its second ruling M.A.S. and M.B. (“Taricco II”),
69
 the CJEU followed the ICC’s 
lead. It recognised that national courts should not follow the first ruling if that would 
lead to a violation of the principle of certainty of offences and punishments or of the 
prohibition of retroactivity.
70
 It left it to the national courts to decide whether the T aricco 
rule was incompatible with these supreme principles of the Italian Constitution.
71
In its judgment, the ICC held that the references by the two Italian courts were un-
founded since the T aricco rule cannot be applied retroactively.
72
 Regardless, it went on to 
hold that in any case Article 325(1) TFEU and the corresponding T aricco rule evidently 
lacked legal certainty. Moreover, it is not for the courts to pursue a criminal policy inde-
pendently of the law they are bound to respect.
73
Regarding the role of constitutional identity in the field of human rights, the Taricco 
saga represents a welcome development, which anyone familiar with the Melloni
74
 case 
64
 Ibid., para. 52.
65
 Order No. 24, Year 2017, para. 2.
66
 Ibid., para. 6.
67
 Ibid., para. 7.
68
 Ibid., para. 8.
69
 C-42/17 M.A.S. and M.B.
70
 Ibid., para. 47.
71
 Ibid., para. 59. 
72
 This meaning to cases in which the facts had occurred prior to the publishing of Taricco I on 8 
September 2015.
73
 Judgment No. 115, Year 2018, para. 11.
74
 Sarmiento, To bow at the rhythm of an Italian tune, URL: https://despiteourdifferencesblog.word 
press.com/2017/12/05/to-bow-at-the-rhythm-of-an-italian-tune/.

53
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
can appreciate. It follows from Taricco II that the CJEU will allow a certain degree of 
constitutional exceptionalism in the sense that EU law will be interpreted to accom-
modate core constitutional values of the Member States. This will be granted when the 
Member States are left some discretion in the field of application of the relevant rule. In 
the present case, if the CJEU decided to disregard the national constitutional concerns, 
it would mean a lowering of the standard of human rights protection in Italy. However, 
the CJEU accepted Italian arguments, and eventually even seemed to find that EU law 
warrants the same level of protection.
75
The result leaves the door open to a differentiated application of EU law among the 
Member States, so that national law, granting more rights to individuals, may be allowed 
to override EU law. Although the practical implications are limited when the EU Charter 
demands the same level of protection, the case shows that constitutional identity may 
counteract EU law obligations.
5.2. Constitutional Identity as a Negative Force in Protecting Individual Rights
Conversely, the Coman case
76
 reveals that national identity could also be employed as 
a justification for the lowering of the standard of rights protection.
77
 Although the case 
does not directly deal with a fundamental human right, the human rights overtone is 
clear.
78
Mr. Coman, a Romanian and an American citizen, and Mr. Hamilton, an American 
citizen, married in Brussels. In December 2012 they inquired with the Romanian au-
thorities about the possibilities of Mr. Hamilton obtaining the right to reside lawfully 
in Romania for more than three months as Mr. Coman’s family member. Romanian 
authorities took the view that since marriage between people of the same sex was prohib-
ited, he could only reside in Romania for three months and would not be granted family 
reunification rights. The applicants argued before the courts that the Romanian Civil 
Code was unconstitutional and the Constitutional Court referred to the CJEU regarding 
the interpretation of the Citizens’ Rights Directive.
79
75
 ICC interpreted it in this way as well. See: Judgment No. 115, Year 2018, para. 14.
76
 C-673/16 Coman.
77
 Van den Brink shows how this may not be a new development, since already in C-391/09 Runevič-
Vardyn and in C-208/09 Sayn-Wittgenstein, the CJEU, by granting deference to Member States 
based on national identity claims, indirectly enabled them to use it to the detriment human rights. 
See: van den Brink, What’s in a Name? Some Lessons for the Debate Over the Free Movement of 
Same-Sex Couples Within the EU, (2016), pp. 441–443.
78
 For a detailed analysis, see: Dunne, Coman: vindicating the residence rights of same-sex “spouses” 
in the EU (2018), pp. 383–389.
79
 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the 
right of citizens of the Union and their family members to move and reside freely within the terri-

54
Zbornik znanstvenih razprav – V olume LXXIX, 2019
The question was whether Article 21(1) TEU precludes the Member States to refuse 
to grant Mr. Hamilton a right of residence, based on the ground that national law does 
not recognise marriage between persons of the opposite sex. The CJEU decided that the 
term “spouse”
80
 is gender-neutral, covering same-sex marriages as well.
81
 Furthermore, a 
Member State cannot rely on its national law as justification for refusing to recognise in 
its territory, for the sole purpose of granting a derived right of residence to a third-coun-
try national, a marriage concluded by that national with a Union citizen of the same sex 
in another Member State.
82
 The refusal to recognise such a marriage may interfere with 
the exercise of the right to move and reside freely in the territory of the Member States.
83
 
Such a restriction could only be justified if it was based on objective public-interest con-
siderations and if it was proportionate to the legitimate objective pursued.
84
Public interest considerations raised by several Governments were considered un-
founded. The Latvian government, intervening in the case, argued that such an inter-
pretation of the term spouse is in conflict with Article 4(2) TEU, as it violates Latvian 
constitutional identity.
85
 The CJEU, recalling that public policy may be relied on only 
if there is a genuine and sufficiently serious threat to a fundamental interest of society,
86
 
stated that the recognition of same-sex marriage, for the sole purpose of granting a de-
rived right of residence to a third-country national, does not interfere with the consti-
tutional identity of the Member States, since it does not require of a Member State to 
provide for the institution of such marriage in national law.
87
This conclusion, which I am in full support of, nevertheless raises some questions. It 
seems that the CJEU decided here that the constitutional arguments presented by the 
Latvian government did not qualify to be considered under Article 4(2). The conclusion 
is based on the fact that the CJEU expressly limits the scope of the consequences of this 
case to a demand for recognition of a same-sex marriage “for the sole purpose of granting a 
derived right of residence”. First, it is questionable whether the effects of such a ruling will 
remain so constrained in the future.
88
 Regardless, the brief rejection of national constitu-
tory of the Member States, OJ L 158 30.4.2004, p. 77.
80
 Citizens’ Rights Directive, Article 2(2)(a).
81
 C-673/16 Coman, para. 35.
82
 Ibid., para. 36.
83
 Ibid., para. 40.
84
 Ibid., para. 41. Also see: C-208/09 Sayn-Wittgenstein, para. 86.
85
 C-673/16 Coman, para. 42. It is noteworthy that Latvia has an explicit constitutional provision 
specifying marriage as a partnership between a man and a woman.
86
 Ibid., para. 44.
87
 Ibid., paras. 45, 46.
88
 Although the CJEU uses the phrase “for the sole purpose of granting a derived right of residence” 
several times in its judgment, the underline reasoning of the Court regarding Article 21 TEU may 
leave the door open to granting all rights following from Article 21(1) TFEU or at least those 

55
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
tional arguments, in this case, may not be the best way to go. First, it is not completely 
clear from the judgment, whether the argument is refused because the invoked value 
is not considered to form a part of the national identity of a Member State, or because 
the interference is considered marginal. Since no proportionality analysis is mentioned, 
the answer seems to be the former. However, it is hard to imagine how an obligation 
to recognise same-sex marriages, if only to award a derived right to residence, does not 
interfere with the Member States understanding of the institution of marriage, which is 
founded on a constitutional provision that directly prohibits the marriage of persons of 
the same sex.
89
 It could probably be assumed that such prohibition is intended to pro-
tect the institution of marriage on the substantive level, the rationale being that rights, 
awarded to married couples of different sexes, should not be granted to couples of the 
same sex.
The CJEU would perhaps have done better if it conceded that its interpretation of 
the term spouse and the ensuing award of a derived right to residence interfere with the 
constitutional identity of the states
90
 with explicit constitutional provisions in the sense 
that Latvia does
91
 and then consider the interests at stake by performing a proportion-
ality analysis. This way, a certain degree of deference would be shown to what are prob-
ably legitimate national constitutional considerations. Following the above theoretical 
constructions behind Article 4(2) TEU, the result would be in all likelihood the same, 
presuming that the court would accept that the outcome of the weighing could not 
result in the lowering of standards of human rights protection below the ECHR thresh-
stated in the Citizens’ Rights Directive, considering especially the principle of non-discrimination. 
Anything less would still interfere with the right to move and reside in the EU, since denying some 
rights to same-sex couples in some of the Member States would dissuade them from enjoying their 
rights.
89
 Article 110 of the Latvian Constitution, as modified in 2006, URL: https://likumi.lv/ta/en/en/
id/57980. During the amendment procedure, MPs were reported saying that the constitutional 
change was needed, as they “were concerned that since Latvia has joined the European Union, EU 
laws will enable gay people to gain rights including the right to marry.” Sheeter, Latvia cements gay 
marriage ban (2005), URL: http://news.bbc.co.uk/2/hi/europe/4531560.stm.
90
 These go to the core of how Member States define themselves and therefore present legitimate 
arguments to interfere with the freedom of movement. Van den Brink, What’s in a Name? Some 
Lessons for the Debate Over the Free Movement of Same-Sex Couples Within the EU, (2016), pp. 
440–441.
91
 Currently: Bulgaria, Latvia, Lithuania, Poland, Hungary and Croatia. In Romania, a referendum to 
change the constitution and define marriage as an institution between a man and a woman failed, 
since the turnout did not reach the 30 % threshold. Illie, Romanian constitutional ban on same sex 
marriage fails on low voter turnout, URL: https://www.reuters.com/article/us-romania-referendum 
/romanian-constitutional-ban-on-same-sex-marriage-fails-on-low-vote-turnout-idUSKCN1MH 
0XI?il=0; T ryfonidou, Awaiting the ECJ Judgment in Coman, URL: http://eulawanalysis.blogspot.
com/2017/03/awaiting-ecj-judgment-in-coman-towards.html?m=0.

56
Zbornik znanstvenih razprav – V olume LXXIX, 2019
old.
92
 The CJEU actually seems to have recognised this as a supporting argument in its 
judgment, stating that a national measure, liable to obstruct the exercise of freedom of 
movement for persons, may be justified only where such a measure is consistent with the 
fundamental rights guaranteed by the Charter.
93
 It pointed out the right to family and 
private life as a fundamental right,
94
 highlighting that same-sex partnerships fall within 
the notion of private and family life. In doing this, the CJEU might have already implied 
that the Member States arguments would not survive the proportionality analysis. This 
approach was followed by the Romanian Constitutional Court, which in the interpreta-
tion of the Civil Code followed the CJEU’s ruling, adding that homosexual couples have 
equal rights to a private and family life as heterosexual couples under Article 26 of the 
Romanian Constitution.
95
In any case, the lesson is that the Member States will argue in cases that affording 
certain rights to individuals might interfere with their constitutional identity, thereby 
trying to lower the standards of rights protection. This was rejected by the CJEU, obiter 
dicta maintaining the existing level of human rights protection as a limit to national 
arguments.
6. The Curious Case of Hungary
The pertinence of the above discussion is exemplified by the significant political and 
constitutional changes, taking place in several Member States. Hungary seems to be 
offering itself for discussion, as the recent political and constitutional developments,
96
 
encroaching upon fundamental rights, judicial independence and fair elections,
97
 have 
prompted the European Parliament to adopt a Resolution regarding the initiation of 
the Article 7(1) TEU procedure.
98
 The case is especially relevant since Hungary openly 
92
 EU Charter, Article 53.
93
 C-673/16 Coman, para. 47.
94
 Ibid., paras. 48–50.
95
 Decision No. 534 of 18 July 2018, paras. 40.–42. See: Hein, A Constitutional Ban on Same-sex 
Marriage, URL: https://constitutional-change.com/a-constitutional-ban-on-same-sex-marriage-ro-
mania-is-about-to-entrench-its-homophobic-worldview/.
96
 For an overview of the recent constitutional developments in Hungary, see: Sólyom, The Rise and 
Decline of Constitutional Culture in Hungary (2015), pp. 16–29.
97
 López Garrido, López Castillo, The EU framework for enforcing the respect of the rule of law and 
the Union’s fundamental principles and values, URL: http://www.europarl.europa.eu/thinktank/
en/document.html?reference=IPOL_STU(2019)608856, p. 31.
98
 The situation in Hungary. European Parliament resolution of 12 September 2018 on a proposal 
calling on the Council to determine, pursuant to Article 7(1) of the T reaty on European Union, the 
existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded 
(2017/2131(INL)).

57
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
adopted a strategy of instrumentalisation of constitutional identity in an attempt to 
avoid obligations under EU law.
99
On 20 June 2018, the 7
th
 amendment
100
 to the Fundamental Law of Hungary
101
 
was adopted to protect Hungarian constitutional identity against the EU.
102
 One of 
the latter’s provisions now states, that “The protection of Hungary’s self-identity and 
its Christian Culture is the duty of all state institutions.” As pointed out by Halmai, 
this amendment could be used as a basis for the review of constitutionality of any legal 
norm, violating the Hungarian Christian culture and is an overt attempt to bypass any 
EU attempts at resolving the refugee crisis, which would not suit Hungary’s current 
government.
103
 The amendment was preceded by the HCC’s decision from 2016,
104
 in 
which (indirectly dealing with the EU asylum seeker’s quota system) it already developed 
competence to review EU law because of Hungarian constitutional identity, understood 
in a similar way that is now inscribed in the constitution.
105
 The change follows a pop-
99
 This is probably best exemplified by the 2016 quote from Viktor Orbán 2016: »I threw my hat 
in the air when the Constitutional Court ruled that the government has the right and obligation 
to stand up for Hungary’s constitutional identity. This means that the cabinet cannot support a 
decision made in Brussels that violates Hungary’s sovereignty.« Translation by: Halmai, Abuse of 
Constitutional Identity (2018), p. 36. Also see: The chief goal of the seventh amendment to the 
Constitution is the protection of national sovereignty, URL: https://www.kormany.hu/en/minis-
try-of-justice/news/the-chief-goal-of-the-seventh-amendment-to-the-constitution-is-the-protec-
tion-of-national-sovereignty.
100
 This was the second attempt to adopt the amendment, the first failing in 2016. See: Halmai, 
Abuse of Constitutional Identity (2018), pp. 28–29; Kelemen, Pech, Why autocrats love consti-
tutional identity and constitutional pluralism: Lessons from Hungary and Poland, Working Paper 
No. 2 – September 2018, URL: https://reconnect-europe.eu/wp-content/uploads/2018/10/RECO 
NNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf , pp. 13–14.
101
 Bill T/332, Seventh Amendment of the Basic Law of Hungary (unofficial translation), URL: https:// 
www.helsinki.hu/wp-content/uploads/T332-Constitution-Amendment-29-May-2018-ENG.pdf.
102
 Ibid., Detailed reasoning, Article 2.
103
 Halmai, Fidesz and Faith: Ethno-Nationalism in Hungary, URL: https://blogs.eui.eu/constitutional 
ism-politics-working-group/founding-members/descriprion/. For a genesis of this newly found 
tool for the government’s anti-migration policy, see: Halmai, Abuse of Constitutional Identity 
(2018), pp. 26–29; Halmai, From a Pariah to a Model? Hungary’s Rise as an Illiberal Member State 
of the EU (2017), pp. 36–38. For an in-depth analysis of the recent developments in Hungary, see: 
Körtvélyesi, Majtényi, Game of Values: The Threat of Exclusive Constitutional Identity, the EU 
and Hungary (2017), pp. 1733–1743.
104
 Decision 22/2016. (XII. 5.) AB.
105
 Halmai, National(ist) Constitutional Identity?, URL: https://ssrn.com/abstract=2962969, pp. 
12–14; Halmai Abuse of Constitutional Identity (2018), pp. 29–36; Kovács, The Rise of an 
Ethnocultural Constitutional Identity in the Jurisprudence of the East Central European Courts 
(2017), pp. 1712–1716; Kelemen, The Hungarian Constitutional Court and the Concept of 
National Constitutional Identity (2017), pp. 23–33.

58
Zbornik znanstvenih razprav – V olume LXXIX, 2019
ulist agenda, in line with which, according to Halmai, “immigrants, refugees and mi-
norities are perceived as threats to constitutional identity of the people” and a danger to 
political unity.
106
 It could also be expected that in line with their coordinated response 
to the refugee crisis,
107
 (at least) the other three countries of the Visegrád group, also 
redefining their constitutional identity along ethnocultural (stressing religion, culture 
and language) lines,
108
 could invoke similar arguments as Hungary.
109
 It may prove that 
when illiberal governments dislike the scolding by the EU, be it in the field of asylum 
or judicial reforms, they would attempt to take refuge under the coat of Article 4(2) 
TEU.
110
 After having established the contours of the identity clause, we should now be 
able to evaluate whether such attempts could fall on fertile ground. It should, of course, 
be emphasised that the analysis is hypothetical, and any concrete conclusions will only 
be possible when a case comes before the CJEU.
It can first be established that constitutional identity is now firmly rooted in the text 
of the Hungarian constitution. Nominally, Hungarian ethnocultural Christian tradition 
is part of the country’s constitutional identity which, following the HCC’s reasoning,
111
 
can be invoked as an argument to deflect EU law obligations. The intention of Hungary, 
therefore, seems to be to reinforce the arguments against the application of EU law it 
might consider politically inopportune. As established, the CJEU will consider such 
arguments as national identity claims under Article 4(2) TEU. First, it will have to es-
tablish, whether the arguments are legitimate and compatible with EU law. Generally, 
cultural considerations may be considered as part of a Member State’s national iden-
tity.
112
 However, as pointed out above, the demand for respect of core constitutional 
values from Article 2 TEU could already be included at this point, dismissing argu-
ments aimed at weakening the rule of law or human rights. Furthermore, constitutional 
106
 Halmai, Conclusive Remarks (2018), p. 483.
107
 Joint Statement by the Prime Ministers of V4 Countries on migration (19 July 2017), Budapest; 
see: Kovács, The Rise of an Ethnocultural Constitutional Identity in the Jurisprudence of the East 
Central European Courts (2017), p. 1704.
108
 Kovacs, The Rise of an Ethnocultural Constitutional Identity in the Jurisprudence of the East 
Central European Courts (2017), p. 1706.
109
 For an overview of the problem, including the Polish case, see: Kelemen, Pech, Why autocrats love 
constitutional identity and constitutional pluralism: Lessons from Hungary and Poland, Working 
Paper No. 2 – September 2018, URL: https://reconnect-europe.eu/wp-content/uploads/2018/10/
RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf , pp. 11–21.
110
 Kelemen, Pech, Why autocrats love constitutional identity and constitutional pluralism: Lessons from 
Hungary and Poland, Working Paper No. 2 – September 2018, URL: https://reconnect-europe.eu 
/wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf, p. 6.
111
 Decision 22/2016. (XII. 5.) AB. paras. 54, 69.
112
 For a critical view on the HCC judgment on “Migrant Quotes” in this respect, see: Halmai, Abuse 
of Constitutional Identity (2018), p. 40, asking what “fundamental interests of society” can legiti-
mately trump the requirement of sincere cooperation in this case.

59
Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
identity claims are not absolutely protected. The CJEU would apply a proportionality 
analysis of the interference, which, considering the goals of recent constitutional reform 
in Hungary, probably would be a strict one. The CJEU’s first consideration would then 
be whether national constitutional arguments can genuinely be considered as part of the 
Member State’s constitutional identity. Because of express constitutional provisions, the 
answer is probably in the affirmative, although, if in a bold mood, and taking into ac-
count the evolution of the identity narrative in Hungary, the CJEU should probably also 
address the question of the abuse of the process. Even if accepted, the next step would be 
to evaluate the relevance of conflicting interests, put forward by the government. Since 
exceptions to EU law obligations will only be granted if there is a genuine and sufficient-
ly serious threat to a fundamental interest of society, it could reasonably be assumed that 
cultural (or other constitutional) arguments, when put in the broader context, would be 
unsuccessful.
Regardless of the methodological approach, the CJEU would take in such a situation, 
the final result will have to comply with the fundamental values, enshrined in Article 2 
TEU. Additionally, Article 6 TEU, coupled with Article 53 of the EU Charter, should 
present a second hurdle specifically related to the human rights dimension. Since the 
aim of Hungary’s current government is precisely to evade obligations, following from 
these principles, I would argue that such attempts would be of a short breath. There 
are mechanisms put in place, most following directly from the CJEU case law, that are 
sufficient to tackle attempts of instrumentalisation of the identity clause. Solely because 
the concept of national or constitutional identity seems to be very inviting for abuse,
113
 
this is not yet reason enough for the abolishment of the dialogue. What follows from this 
is that even employing the existing mechanisms from the CJEU’s case law, illegitimate 
constitutional identity claims will not be accommodated by the CJEU, in the sense that 
it would allow Hungary (or any other country, mimicking a similar path) to deviate from 
its primary or secondary EU law obligations. This is legally (and politically) sound as any 
country that wishes to form a part of the EU community has to respect the fundamental 
principles, the community is based upon. A contrario, there is no place to be held for a 
country, which does not.
Apart from what has already been discussed, several additional general concerns arise 
about this newly found approach to European constitutional exceptionalism. First, it 
may come to the CJEU deciding on what are essentially politically rooted issues. The 
battlefield of further EU cooperation, seemingly at a crossroads, might move, as it ap-
113
 Kelemen, Pech, Why autocrats love constitutional identity and constitutional pluralism: Lessons from 
Hungary and Poland, Working Paper No. 2 – September 2018, URL: https://reconnect-europe.eu/ 
wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf, pp. 9–11.

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Zbornik znanstvenih razprav – V olume LXXIX, 2019
pears, to courtrooms.
114
 Judging by what was explained above the arguments will not 
succeed before the CJEU, which makes this approach all the more questionable. It is 
implausible that the government is unaware of this fact, and therefore it seems that the 
whole process is being instrumentalised to strengthen a political position. On top of that, 
taking note of HCC’s newly formed case law, that would not be the end of the problem. 
The court would namely be under the (self-inflicted) obligation to protect Hungary’s 
constitutional identity (understood in an ethnocultural sense, encompassing religion), 
meaning it would adopt the identity review and probably disapply relevant EU law.
115
 
The consequences following from this are unpredictable.
On a more theoretical note, it is most problematic that this approach undermines the 
moral foundation of the demand for respect of national identity.
116
 The latter was found-
ed in recognition of the importance of accommodation of diversity to promote unity 
and, as was rightfully pointed out by Kelemen and Pech, is based on the premise of sincere 
cooperation.
117
 However, when a Member State (or several Member States) decides to 
use the identity argument with an already established (publicly proclaimed) intention of 
disapplication of EU law, even changing its constitution for this purpose, it undermines 
the basic intention of the clause and goes most clearly against the principle of loyal co-
operation.
118
 Instead of promoting cooperation between legal orders, this would push for 
exceptionalism, promoting dis-unity and further mistrust.
119
A venue of constitutional dialogue is suddenly transformed into a venue of politicisa-
tion and abuse of constitutional law. Consequently, the approach of the CJEU to nation-
114
 On 11 July 2019, a Hungarian judge stayed criminal proceedings to pose a preliminary question to the 
CJEU about the independence of the state’ s judiciary . See: Szabó, A Hungarian Judge Seeks Protection 
from the CJEU – Part, URL: https://verfassungsblog.de/a-hungarian-judge-seeks-protection-from 
-the-cjeu-part-i/.
 The Commission also decided to initiate an infringement procedure against Hungary regarding its 
treatment of asylum seekers. See: Commission takes Hungary to Court for criminalising activities 
in support of asylum seekers and opens new infringement for non-provision of food in transit 
zones, URL: https://europa.eu/rapid/press-release_IP-19-4260_en.pdf.
115
 In doing so, the court would promote an “unconstitutional national constitutional identity”. Halmai, 
Constitutional Court Decision on the H ungarian Government’ s Constitutional Identity Defence, URL: 
https://blogs.eui.eu/constitutionalism-politics-working-group/constitutional-court-decison-hun 
garian-governments-constitutional-identity-defense/.
116
 On the moral underpinnings of national identity, see: Cloots, National Identity, Constitutional 
Identity, and Sovereignty in the EU (2016), pp. 86–94.
117
 Kelemen, Pech, Why autocrats love constitutional identity and constitutional pluralism: Lessons 
from Hungary and Poland, Working Paper No. 2 – September 2018, URL: https://reconnect-europe 
.eu/wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LP-KO.pdf, p. 8.
118
 Halmai, Conclusive Remarks (2018), p. 483; Halmai, Abuse of Constitutional Identity (2018), pp. 
14–16.
119
 For a similar conclusion, see: Halmai, Abuse of Constitutional Identity (2018), pp. 41–42.

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Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
al constitutional considerations will become more reserved, resulting in a negative im-
pact on genuine and legitimate constitutional identity claims by other Member States.
120
7. Conclusion
The aim of this paper was to present the concept of national identity and the role it 
may play in constitutional disputes, provoked by recent Hungarian Government’s at-
tempts to use the concept to evade EU law obligations. Although the concept is quite 
ambiguous, at least some clarity regarding the substance and functionality may be 
brought about by studying the current set of national and especially the CJEU case law. 
The findings concerning the CJEU’s methodology in identity-oriented disputes show 
that although the idea behind national identity may prove by itself prone to abuse, there 
are seemingly sufficient safeguards put in place in the existing case law of the CJEU. The 
last and perhaps vital step would be for the CJEU to formally recognise that national 
constitutional arguments can never cause the sliding of fundamental values from Article 
2 TEU, including fundamental human rights, below the levels, set by EU law.
As long as we do not have a concrete case before the CJEU, it is hard to make defi-
nite conclusions. However especially considering the political context, surrounding the 
endeavours of Hungary and other countries, which may soon follow, attempts of instru-
mentalisation of the identity clause in judicial proceedings are likely to fail. In any case, 
the usually calm summer months nevertheless brought two new cases to Kirchberg’s 
courtrooms, where it seems that both Hungary and the CJEU will have to reveal their 
cards and eventually determine the validity of this paper’s conclusions. Regardless of the 
outcome, attempts of abuse are problematic both in terms of the political roots of the 
problem, since the courts are probably not the forum for resolving disputes such as these, 
as well as because they undermine the moral foundations of the demand for respect for 
national identity. In that way, the EU’s commitment to respect and protect the Member 
States’ national identities could, as recent developments sadly show, become an instru-
ment of alienation instead of unification of the nations of Europe, which is the opposite 
of the initial intentions and certainly goes counter to the idea of European integration.
120
 Halmai, Conclusive Remarks (2018).

62
Zbornik znanstvenih razprav – V olume LXXIX, 2019
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Pomen nacionalne identitete v pravu Evropske unije in njen potencial  
za instrumentalizacijo
(povzetek)
Namen prispevka je v predstavitvi potencialne zlorabe identitetne klavzule iz dru-
gega odstavka 4. člena PEU s poudarkom na varstvu človekovih pravic. Z namenom 
vzpostavitve okvirja za osrednji del razprave prvi del prispevka obravnava konceptualna 
vprašanja, povezana z nacionalno identiteto. Kljub nejasnostim, ki pojem zaznamujejo 
tako na ravni akademskih razprav kot tudi v sodni praksi, je mogoče vzpostaviti vsaj 
osnovni pojmovni okvir in metodološki pristop k reševanju sodnih sporov, povezanih z 
ustavno identiteto.
Nacionalna identiteta in ustavna identiteta sta ločena, toda medsebojno tesno preple-
tena pojma. V skladu s prevladujočim stališčem teorije in sodno prakso pa ne glede na 
to ni dvoma, da je ustavna identiteta del nacionalne identitete, kot je ta opredeljena v 
drugem odstavku 4. členua PEU. Ta se namreč neposredno sklicuje na temeljne ustavne 
strukture držav članic EU. Pojem ustavne identitete kot del nacionalne identitete obsega 
temeljne (jedrne) dele ustavnih redov držav članic in je prek drugega odstavka 4. člena 
PEU postal del prava EU in v tem okvirju veljaven pravni argument. Koncepta naci-
onalne oziroma ustavne identitete za namene prispevka uporabljam kot soznačnici, ki 
označujeta jedro ustavnega reda posameznih držav članic.
Pri določitvi vsebine in funkcije koncepta nacionalne identitete v povezavi s pravom 
EU je nujno upoštevati tako pogled držav članic kot tudi pogled EU. V prispevku se 
pri tem osredotočam na vsebino in funkcijo, ki jo konceptu pripisujejo pristojna na-
cionalna sodišča in Sodišče Evropske unije, torej sodni koncept ustavne identitete. Z 
vidika držav članic je prvi korak preučevanje nacionalnih ustavnih besedil in pripadajoče 
sodne prakse najvišjih nacionalnih sodišč. Pri analizi se pokaže določena stopnja konver-
gence pri vsebinskem razumevanju ustavne identitete. Najvišja nacionalna sodišča držav 
članic namreč v povezavi z ustavno identiteto poudarjajo podobne ustavne vrednote. 
Najpogosteje se ta povezuje s suverenostjo in neodvisnostjo, temeljnimi organizacijskimi 
elementi države, demokratičnostjo, človekovimi pravicami in načelom pravne države. 
Tudi v razumevanju funkcionalnega vidika ustavne identitete se stališča pretežno pokri-
vajo, saj je ta razumljena kot omejitev prava EU, ki mu ni dovoljeno poseganje v temelj-
ne nacionalne ustavne vrednote. Z vidika EU je po drugi strani ključna sodna praksa 
Sodišča EU. Kljub nejasnostim, povezanim z nacionalno identiteto, je mogoče na njeni 
podlagi vzpostaviti vsaj grob oris metodološkega pristopa Sodišča EU pri reševanju zadev, 
ki se nanašajo na spoštovanje temeljnih ustavnih struktur držav članic. Analiza pokaže, 
da je Sodišče EU sledilo nacionalnim pogledom na materialni vidik ustavne identitete ter 
da je sprejelo nacionalne pomisleke kot del tega pojma na področjih kulture (predvsem 
jezika), temeljnih državnih struktur ter temeljnih ustavnih vrednot, vključno s pravica-

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Zbornik znanstvenih razprav – V olume LXXIX, 2019
mi. V funkcionalnem smislu Sodišče EU nacionalno identiteto iz drugega odstavka 4. 
člena PEU razume kot upošteven argument za omejitev obveznosti, ki izhajajo iz prava 
EU. Pri tem argumente ustavne identitete običajno uvrsti med izjeme javnega reda. Te 
razlaga ozko, tako da njihovega obsega ne more enostransko določiti država članica, na-
nje pa se je mogoče sklicevati le, če obstaja resnična in dovolj resna grožnja temeljnemu 
interesu družbe. Sodišče EU najprej oceni legitimnost cilja, ki ga država članica z ome-
jitvijo prava EU zasleduje, pri čemer mora biti ta cilj v skladu s pravom EU. Nadalje 
izvede analizo sorazmernosti posega, pri čemer o sorazmernosti odloči samo in argument 
države sprejme ali zavrne ali pa končno odločitev prepusti nacionalnemu sodišču. V 
okviru ocene o sorazmernosti Sodišče EU odloča tudi o upoštevnosti argumenta ustavne 
identitete in njegovi teži v primerjavi s prizadeto vrednoto, iz česar seveda izhaja, da ne 
priznava absolutne narave ustavne identitete posamezne države članice. Čeprav v sodni 
praksi Sodišče EU tega še ni ugotovilo, se zavzemam, da bi skrajne meje upoštevnim ar-
gumentom ustavne identitete predstavljale temeljne vrednote iz 2. člena PEU in določba 
6. člena PEU.
Pokaže se, da lahko argument ustavne identitete služi različnim ciljem. Temu je na-
menjen drugi del prispevka, ki se osredotoča na dve aktualni zadevi pred Sodiščem EU, 
ki zadevata vprašanje varstva človekovih pravic in to načelo ponazarjata. Prva je zadeva 
T aricco, pri kateri je prišlo do nenavadne situacije, ko je Sodišče EU v svoji prvi odločbi, 
povezani s to zadevo, odločilo, da morajo italijanska kazenska sodišča, če je to potrebno, 
zaradi zagotavljanja učinkovitosti prava EU prezreti nacionalne določbe o zastaralnih 
rokih. Italijansko ustavno sodišče se je še drugič obrnilo na Sodišče EU in ga, z ar-
gumentom, da bi sicer prišlo do kršitve načela zakonitosti kot dela ustavne identitete 
Italije, prepričalo. Sodišče EU je tako sprejelo nacionalni argument ustavne identitete 
kot razlog za odstop od zahtev primarnega prava EU, kar je vodilo k ohranitvi višje ravni 
varstva pravic v Italiji. Po drugi strani zadeva Coman kaže na obraten poskus. Latvija je 
namreč kot intervenientka v zadevi, ki je sicer povezana s priznavanjem istospolnih po-
rok v Romuniji, ugovarjala stališču Sodišča EU, da morajo države članice zgolj za namen 
podelitve izvedene pravice do prebivanja priznati veljavnost v tujini veljavno sklenjene 
zakonske zveze dveh oseb istega spola, z argumentom, da krši njeno ustavno identiteto. 
S sklicevanjem na lastno ustavo je želela doseči, da bi te osebe na ozemlju Latvije uživale 
manj pravic kot v preostalih državah članicah EU. Sodišče EU je ta argument zavrnilo, 
saj da ne gre za poseg v ustavno identiteto, pri čemer je obiter dictum omenilo, da mora 
tudi sicer vsaka omejitev svoboščin po pravu EU spoštovati standarde varstva človekovih 
pravic po Listini EU o temeljnih pravicah.
Opirajoč se predvsem na poskus v zadevi Coman in predhodne ugotovitve v zve-
zi s konceptom ustavne identitete v pravu EU, v zadnjem delu obravnavam primer 
Madžarske. Ta je leta 2018 sprejela ustavni amandma, s katerim je med drugim izrecno 
zapovedala zaščito ustavne identitete vsem državnim organom. Sprejetje amandmaja je 

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Marjan Kos – The Relevance of National Identity in European Union Law and Its 
Potential for Instrumentalisation
sledilo odločbi madžarskega ustavnega sodišča, ki je že pred tem vzpostavilo pristojnost 
presoje skladnosti prava EU z madžarsko ustavno identiteto. Madžarska vlada je pri spre-
jemanju amandmaja povsem odkrito pojasnila, da je njegov namen zavarovanje pred pra-
vom EU. Upoštevaje politični kontekst zadeve, gre v tem primeru za jasen poskus instru-
mentalizacije ustavne identitete za doseganje političnih ciljev. Ob upoštevanju okoliščin 
sprejetja ustavnega amandmaja in predstavljenih izhodišč v zvezi s konceptom ustavne 
identitete ugotavljam, da taka zloraba koncepta ustavne identitete pred Sodiščem EU ne 
bo uspešna. Sodišče EU je namreč že vzpostavilo mehanizme, s katerimi bi kakršenkoli 
poskus sklicevanja na ustavno identiteto z namenom izigravanja prava EU lahko prepre-
čilo. To še zlasti velja v primerih, ko bi bile posledice sklicevanja na ustavno identiteto 
znižanje ravni zaščite temeljnih ustavnih vrednot EU, vključno z ravnjo varstva človeko-
vih pravic, kot jo zagotavlja Listina EU o temeljnih pravicah. Vse ugotovitve v zvezi s 
situacijo na Madžarskem so seveda, vsaj do odločitve v dveh novih zadevah, ki sta se v po-
vezavi z obravnavanimi vprašanji nedavno pojavili pred Sodiščem EU, zgolj hipotetične.
Ne glede na končni rezultat takega sodnega spora ima poskus instrumentalizacije 
ustavne identitete tudi druge škodljive posledice. Sodišča namreč niso najprimernejši 
forum za reševanje problemov, ki izvirajo iz političnih nesoglasij. Poleg tega taki poskusi 
spodkopavajo moralne temelje ideje o obveznosti spoštovanja nacionalnih identitet držav 
članic, ki je bila namenjena krepitvi ideje o združevanju evropskih narodov ob spoštova-
nju njihove različnosti. Taki poskusi so v nasprotju z načelom lojalnega sodelovanja in bi 
lahko negativno vplivali na prihodnje utemeljene poskuse držav članic, da zaščitijo svojo 
ustavno identiteto pred posegi EU.

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UDK: 342:347.9:061.1EU
Zbornik znanstvenih razprav 
LXXIX. letnik, 2019, strani 41–69
Marko Kos
Pomembnost nacionalne identitete v pravu Evropske unije in možnost njene 
instrumentalizacije
Namen prispevka je predstaviti koncept ustavne identitete in njegovo vlogo v ustavnih 
sporih. Kljub nejasnostim, povezanim s tem pojmom, je mogoče na podlagi sodne prakse 
nacionalnih ustavnih sodišč in Sodišča EU vzpostaviti vsaj splošni okvir vsebine in funk-
cije nacionalne identitete v okviru prava EU. Pokaže se, da kljub navidezni dovzetnosti 
koncepta nacionalne identitete iz drugega odstavka 4. člena PEU za zlorabe v praksi 
Sodišča EU obstajajo ustrezne varovalke, ki lahko preprečijo njegovo instrumentalizacijo. 
Trenutni poskusi, kot so na primer na Madžarskem, da bi koncept zlorabili z namen-
om izogibanja obveznostim po pravu EU imajo zato zelo malo možnosti za uspeh pred 
Sodiščem EU.
Ključne besede: Evropska unija, nacionalna identiteta, ustavna identiteta, drugi 
odstavek 4. člena PEU, človekove pravice, sorazmernost, Madžarska, Sodišče Evropske 
unije, Coman, T aricco.

77
Sinopsisi / SynopSeS
UDC: 342:347.9:061.1EU
Zbornik znanstvenih razprav 
V olume LXXIX, 2019, pp. 41–69
Marko Kos
The Relevance of National Identity in European Union Law and Its Potential for 
Instrumentalisation
The aim of the paper is to present the concept of national identity and its role in con-
stitutional disputes. Despite its ambiguity, based on national constitutional courts’ and 
the CJEU’s case law, at least a general framework concerning its substance and function 
in EU law can be established. It demonstrates that although the concept of national 
identity from Article 4(2) TEU may be prone to abuse, sufficient safeguards exist to 
prevent the instrumentalisation of the concept. Current attempts, particularly in the case 
of Hungary, to (ab)use the concept in order to evade EU law obligations are, therefore, 
highly unlikely to succeed before the CJEU.
Keywords: European Union, National identity, constitutional identity, Article 4(2) 
TEU, human rights, proportionality, Hungary, Court of Justice of the European Union, 
Coman, T aricco.