A Legal Obligation to Respect National Identity

One pivotal question any full-fledged theory of national identity adjudication needs to address is whether the Union is under a legal obligation to respect the Member States’ national identities. This chapter answers that question in the affirmative. In the first section, it demonstrates that the Treaties contain a clause requiring the Union to respect its Member States’ national identities and that this ‘identity clause’ has legal value. In the next section, the focus shifts to the relation of the European Court of Justice to the identity clause. It is argued that the identity clause impacts on the European Court of Justice in two ways. On the one hand, the clause empowers the Court, in that it mandates the Court to enforce the demand for respect for national identity against the other EU institutions. On the other hand, the provision constrains the Court, for it subjects the Court, too, to the duty of national identity respect.