UDC 323.1:340.134(4-672EU)
Biblid: 1451-3188, 17 (2018)
Vol. 18, No 66, pp. 47-69

Оriginal article
Received: 01 Jan 1970
Accepted: 01 Jan 1970


Vlajković Marija (Докторанд и сарадник у настави на Катедри за међународно право и међународне односе, Правни факултет Универзитета у Београду), marija.vlajkovic@ius.bg.ac.rs

The evolution of the European identity in the EU does not exclude but implies respect and protection of the national identities. Through а detailed analysis of the national identity and its development through the Treaties and enhanced cooperation of national constitutional courts and the European Court of Justice, we come to the conclusion that the Member States tend to take the lead when it comes to the interpretation of the content and importance of their national identities in the EU legal system. In the ECJ case law, the most frequent questions were related to the interpretation of the protection of the national identity with a special emphasis on the constitutional identity as a counterbalance to the EU principle of primacy. Protection of the national identity encompasses the adequate application of the proportionality test by the ECJ from one side, and from the other the margin of discretion and appreciation that is left to the Member States. The European Court of Justice has developed a flexible approach, building it on the opinions of Advocates General and following national tendencies regarding the protection of their national and constitutional values. Bearing in mind the evolution of the content of the national identity and its interpretation in terms of the EU legal system, the ECJ also delivered judgments that do not aim at interpreting the national identity but rather give guidelines to the Member States when it comes to the protection of the national identity.

Keywords: national identity, constitutional identity, the principle of primacy, proportionality test, the European Court of Justice