THE NATIONAL IDENTITY NARRATIVE IN THE RELATIONSHIP BETWEEN THE MEMBER STATES FROM CENTRAL AND EASTERN EUROPE AND THE EUROPEAN UNION: A RECENT CASE LAW ANALYSIS

Abstract

This paper explores the argument surrounding protection of national identity which
in recent years has underpinned the relationship between the European Union and some of
the Member States from the region of Central and Eastern Europe, particularly Hungary,
Poland and the Czech Republic. It relates to cases where national governments (as well as
other institutions at the national level such as national courts) invoke the ‘national identity’
clause of Article 4(2) of the Treaty on European Union, concerning the EU’s duty to respect
the national identities of its Member States, in order to derogate from rules and principles
of EU law and justify actions at the national level that run counter to them (most notably,
those related to compromising judicial independence, the rule of law, and democratic
values).
The analysis in the paper centers on Poland and the developments in this country
as a pertinent case in point through which the practical applications of the ‘national
identity’ clause are analysed, bringing into focus some more recent cases before the EU
Court of Justice and the Polish Constitutional Tribunal. Equally, the paper reflects on the
scope and breadth of the ‘national identity’ plea, inspecting the limits of a Member State’s
discretion to employ national identity arguments in order to derogate from the primacy of
EU legal rules and principles. Lastly, the paper also addresses the existence of a sometimesfluid
dividing line between legitimate use and misuse (or abuse) of ‘national identity’
claims by Member States, whereby the ‘national identity’ arguments are being used as a
pretext rather than an actual justification for contravening actions and practices.