Title: National Identity and the European Court of Justice.
Other Titles: Nationale identiteit en het Europees Hof van Justitie.
Authors: Cloots, Elke
Issue Date: 31-May-2013
Abstract: The central aim of this PhD thesis is to provide the Court of Justice of the European Union with a principled and coherent scheme for the adjudication of disputes involving claims based on national identity. The scheme developed in this study attempts, in essence, to answer two fundamental questions: (1) how is the Court of Justice to determine whether arguments pertaining to national identity should be of relevance, and (2) what is the best way for the Court to actually show respect for the identity concerns at issue? Part I of the dissertation addresses the first of the two aforementioned questions. It seeks to provide the Court of Justice with the tools for ascertaining whether a domestic norm that allegedly gives expression to a facet of a Member State’s national identity deserves the Union’s respect. Part I unfolds in four chapters. A first chapter demonstrates that the EU Treaty imposes a legal obligation on the Union institutions, including the judicial branch, to pay heed to national identity. In a second chapter, the argument is posited that that legal obligation is undergirded by moral concerns, and that those concerns should guide the Court’s reading of the relevant Treaty article. A third chapter reveals that these moral concerns are reflected in more Treaty provisions than just the so-called “identity clause”, while at the same time being in tension with Treaty precepts which are more integration-oriented. The view is submitted that, in a multinational polity like the EU, trade-offs are necessary between respect for national identity, on the one hand, and political and legal integration, on the other hand. Drawing on the theoretical basis laid down in the three foundational chapters, a fourth chapter sets forth recommendations on how the Court should interpret the terms of the identity clause. More precisely, it clarifies how the Court is to know whether a particular national norm falls within the ambit of the identity clause and, if so, what it means to say that the Court must pay it ‘respect’.In Part II, the attention shifts to the second pivotal question covered in this PhD thesis: in what way should the Court of Justice respect domestic norms expressive of national identity? Part II puts forward a series of decision-making methods that may help the Court of Justice find the optimal trade-off between European integration and accommodation of national identity. Perhaps counter-intuitively, an open-ended balancing exercise, which allows the Court to take into consideration the totality of the circumstances of the case presented to it, is not among the proposed methods of adjudication. Instead, this dissertation takes the view that more formalised and discretion-constraining decision-making techniques, such as categorisation, structured proportionality analysis and canons of statutory interpretation, offer a better prospect for a truly balanced outcome. The ramifications of this theoretical claim become more tangible in the extensive case study undertaken in Part II. Significantly, the casesselected for this study are distinguished on the basis of whether or not the EU legislature has intervened in the subject matter area. It seemed desirable to treat legal proceedings in which a Member State’s national identity is invoked against a norm of secondary (rather than primary) EU law separately, as their analysis should include not only an inquiry about the optimal mix of accommodation and integration, but also an assessment of the proper relationship between the Court of Justice and the EU legislature.
Publication status: published
KU Leuven publication type: TH
Appears in Collections:Institute for Constitutional Law
Institute for European Law

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