National identity in European Union law: between the member states\\

Vlajković Marija (Pravni fakultet Univerziteta u Beogradu), marija.vlajkovic@ius.bg.ac.rs

This paper analyses the role and scope of the national identity clause enshrined in Article 4(2) of the Treaty on European Union within the contemporary legal order of the European Union, with particular emphasis on the latest developments in the case law of the Court of Justice of the European Union. Starting from the premise that national identity does not operate as an absolute limit to the application of European Union law but rather as a legally relevant argument that must form part of a functional judicial dialogue, the paper examines the relationship between the autonomy of the legal orders of the Member States and the requirements stemming from European Union law, particularly in the context of free movement, EU citizenship, and the protection of fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. The first part of the paper analyses the position of the national identity clause and its normative evolution, as well as the principal doctrinal understandings of national identity as a constitutive element of the European legal order. Particular attention is devoted to the preliminary ruling procedure and the shaping of constitutional dialogue between national legal orders and the legal order of the European Union. The central part of the analysis focuses on the case law of the Court of Justice of the European Union concerning the crossborder recognition of personal and family status, particularly in cases arising from preliminary references submitted by courts in Eastern Europe. This contribution demonstrates that, in its more recent jurisprudence, the Court of Justice increasingly prioritises the effective enjoyment of rights deriving from Union citizenship and the rights guaranteed by the Charter. The national identity argument retains only a limited autonomous scope. At the same time, it is argued that, although the Court formally recognises the importance of Article 4(2) TEU, it has not developed a sufficiently clear methodology for balancing the protection of national identity against the requirements stemming from European Union law. The conclusion argues that the future development of the relationship between national identity and European Union law will largely depend on the further evolution of cooperative judicial dialogue between national courts and the Court of Justice of the European Union. The paper advances the view that Article 4(2) TEU should not be perceived as a “shield” against European Union law but rather as a mechanism of cooperative constitutional dialogue capable of preserving the cohesion of the European legal space while respecting the constitutional specificities of the Member States.

Keywords: national identity, Charter of Fundamental Rights, Court of Justice of the European Union, free movement, Union citizenship, family status, judicial dialogue