Respecting Constitutional Identity in the EU

Abstract

This essay discusses the Sayn-Wittgenstein judgment of the ECJ, in which for the first time an appeal to the constitutional identity of a member state in order to limit a right under EU law, under Article 4(2) TEU, i.e. the duty for the EU to respect the national identities of the Member States, was succesful. It tries to identify its meaning for the constitutional relations between the EU and the Member States constitutional orders as it is viewed by the ECJ. The careful conclusion is that these have reached a stage of greater maturity in comparison to the more formative period of EU primacy; it acknowledges that rights under EU law can be restricted on the basis of national constitutional law.