Taking Constitutional Identities Away from the Courts

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, this article compares judicial and nonjudicial means of accommodation of divergent constitutional values. In the category of nonjudicial means, political negotiated exemptions and opt-outs in favor of certain Member states have been considered. In the category of judicial means of accommodation, this article analyzes how the Courts approach the concept of constitutional identity. This article finds that nonjudicial means of accommodation of identity-related conflicts are a crucial complement to judicial ones and—under certain circumstances—a superior alternative.