The Persistence of a Contested Concept: Reflections on Ten Years Constitutional Identity in EU law

Abuse the concept of constitutional identity should not deter us from efforts
to make sense of it. Progress has been made in this endeavour in various respects, from the study of the origins of the Treaty provision to its application in the case law of the Court of Justice of the EU, and to the concept’s use in Member State courts. Still, points of controversy have not changed all that much over the last ten years.The lingering of these issues, and the sometimes perplexingly divergent views on them are remarkable and urge reflection.
In this essay I attempt to understand why these issues are so persistent and
why they are the object of so much controversy. In particular, I focus on the scope of the notion of constitutional identity under Article 4(2) TEU, as this determines the debates in the context of the relation between the notions of difference, similarity and identity more in general in the constitutional context of Europe. These reflections and ruminations start off from a brief discussion of ideas of identity and homogeny, on the non-identity of identities and the paradox of pluralism, to arrive at a discussion of the relation between national identity and constitutional structures, and of institutional and substantive notions of identity. Next we discuss to what extent fundamental rights concern political and constitutional structures, and finally we make some remarks on who decides about constitutional identity. These may go at least some way to explain the persistence of controversies in the present phase of European integration.