The Elusive Contours of Constitutional Identity: 'Taricco' as a Missed Opportunity

Abstract

The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German 'Bundesverfassungsgericht' (BVerfG) and the 'controlimiti' doctrine of the Italian 'Corte Costituzionale'. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in 'Taricco II'. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the 'Corte Costituzionale', the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.

Keywords

• primacy of eu law
• constitutional identity of the member states
• court of justice of the european union
• italian constitutional court
• fundamental rights
• judicial dialogue
• rule of law