European Constitutional Identity as a Normative Concept: Pointing to the Core of European Democracies

Whereas national identity has enjoyed considerable success in the debates on the Union and identitarian arguments are often deployed to limit the Union law’s applicative priority on national laws, a ‘European identity’ struggles to acquire relevance, let alone normative value, in either discourse. Nevertheless, arguments have been recently raised to back a non-limited Union law’s priority in the assumption of, or building on, a normative conception of European identity derived from sociology or political science. Pursuant to an examination thereof, this chapter argues that a European identity concept of that kind would pave the way for an overwhelming Union law’s primacy based on moral-rationalist arguments only, political conflicts then being silenced rather than resolved. Conversely, both a historical and a literalsystematic reading of the Treaties reveal that a European identity should rather defend a constitutional equilibrium between the Union and the States based on respect for national democratic self-government and on the protection of rights by equivalent standards. Such a concept would foster a European public sphere as the place for accountable decisions of supranational relevance and link the Union law’s applicative priority with a reinforced, actual consent of the (peoples of the) Member States.