Questioning ‘primacy’: A proposal for a systematic understanding of ‘identitarian arguments’ in national constitutional case-law

Abstract

Multiple national constitutional courts are raising ‘identitarian arguments’ to counter primacy as the ‘fundamental constitutional and political structure’ of the State concerned comes at stake. This work questions whether such arguments are acceptable, and to which extent, from the perspective of the evolution occurred in legal interpretation during the European integration process. It appears that their persuasiveness is the most intense if they are designed as rights to resist aiming to protect and restore the overall constitutional balance the Union has achieved. In this vein, violations of substantive rights and interests should be considered in relation with the respective procedural breaches to national sovereignty. As long as both such elements are involved, identitarian arguments, albeit preventing uniformity in the application of Union law, do not preclude further integration but keep it in line with the balance  that underpins the Union’s constitutional arrangements; therefore, they must be held consistent with the law governing the Union’s legal-political space.