A MEMBER STATE’S ‘NATIONAL IDENTITY’ PLEA AS A JUSTIFICATION FOR CIRCUMVENTING EU LAW

Abstract

This paper explores the European Union’s duty to respect the national identities of its Member States,
understood in its capacity as a justification that Member States can invoke to derogate from certain EU lawmandated obligations. Since it was originally inserted in the Maastricht Treaty, the ‘national identity’ clause
has undergone several modifications, the existing version having potentially far-reaching and unforeseeable
implications. The analysis focuses on how the ‘national identity’ clause has been employed by the Member
States in practice, spotlighting the current developments in Poland and Hungary as a fitting illustration.
Namely, the Polish and the Hungarian government have been known to play the ‘national identity’ card in
order to justify and legitimize the rule-of-law backsliding processes taking hold of their countries. In
addition, in October 2021, the Polish Constitutional Tribunal delivered a judgment which openly challenges
the principle of primacy of EU law over national law as a core principle of the EU legal order.
Lastly, the paper assesses the limits of the Member States’ discretion to use the ‘national identity’
justification as a means of evading the authority of EU law, addressing the ‘thin red line’ that exists between
using and abusing this justification, as well as the considerable anti-integration potential that the
justification’s misuse carries with it.