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The Shifting Battleground of Article 4(2) TEU: Evolving National Identities and the corresponding need for EU management?

Mary Dobbs [1]

Cite as Dobbs, M., "The Shifting Battleground of Article 4(2) TEU: Evolving National Identities and the corresponding need for EU management?", (2015) 21(2) EJoCLI.

Abstract

Article 4(2) TEU requires that the European Union (EU) respect the Member States' national identities, creating a legal obligation enforceable before the CJEU and valuable in political negotiations. However, the concept of national identities is unclear, leaving open questions about the scope or parameters of the provision and its applicability. The CJEU appears likely to take a relatively flexible approach in light of Article 4(2) TEU's relationship with national constitutional courts' reserves. This flexible approach would enable Member States to rely upon a range of aspects as part of their national identity, including ones that were previously unidentified. This is a crucial feature if one considers that national identities may evolve gradually or even dramatically, including where Member States purposefully attempt to develop their national identities further. This possibility of an evolved national identity is exemplified by the French Charte de l'Environnement. It may thereby be possible for Member States to stretch the scope and application of Article 4(2) TEU through reference to these evolving national identities. This potential raises significant challenges for the EU regarding the management of Article 4(2) TEU, which it will need to address if it wishes to ensure harmonisation and uniformity in the relevant areas.

1. Introduction

Article 4(2) TEU states that:

"[t]he Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State."

This is a bold, yet ambiguous, [2] statement that leaves much to be determined in relation to its force and scope.

Regarding the provision's role, it could indicate merely a tipping of the hat by the European Union (EU) to the Member States - a mere 'rhetorical signifier'. [3] However, there are strong signs that it imposes an enforceable legal obligation upon the EU to respect elements fundamental to the Member States, including 'their national identities'. [4] Thus, it appears that Article 4(2) TEU will at least be used to interpret existing derogations such as public policy broadly [5] and may act as a unilateral derogation, [6] as implicit in Runevič-Vardyn. [7] Further, although less likely, there is also the possibility that Article 4(2) TEU could be used to challenge directly the validity of EU law, [8] in particular for incorrect exercise of their competences and breach of subsidiarity and proportionality as "[s]uch an obligation must be observed by the EU when acting within its competences". [9] These options for judicial protection also strengthen the Member States' position in negotiating and developing the content of EU legislation [10] through reliance upon their national identities. Clearly this is not a carte blanche, [11] as the principle of proportionality applies [12] and the Member States owe obligations under the principle of sincere cooperation [13] as reflected in both the German Federal Constitutional Court's (BVerfG) Lisbon Decision [14] and Advocate General (AG) Villalón's recent Opinion in the Gauweiler case. [15] Nonetheless, the legal force demonstrates the significance of the provision in the on-going battle over authority between the Member States and the EU.

The legal force of Article 4(2) TEU also heightens the importance of clarifying the meaning of "national identities" in the context of the provision. This is as, in order for a Member State to rely effectively on Article 4(2) TEU, it will need to establish that the relevant aspect falls within the scope of the concept of national identities (looks to the parameters) and that it is part of that specific Member State's national identity (applicability). However, whilst Article 4(2) TEU and its predecessors have been examined to an extent within the literature [16] with some resulting clarity regarding its force, there is continuing ambiguity regarding the meaning of "national identities" as found within the provision. [17] This is as the concept itself is difficult to pin down, the provision only provides some limited guidance and the issue is complicated by consideration of the interlinked roles of the CJEU and the national constitutional courts.

The determination of the parameters of "national identities" in the context of Article 4(2) TEU and the question of whether a broad or restrictive approach is taken is already of great import for the relationship between the Member States and the EU. However, it becomes increasingly significant when one considers that national identities are not necessarily set in stone - they have the potential to evolve in a manner beyond their current incarnation. A flexible approach in particular would enable evolving national identities to impact upon both the general scope and specific application of the Article 4(2) TEU, stretching it in new directions with significant consequences for the Member States and the EU. Consequently, it is essential to explore this hidden potential of Article 4(2) TEU and examine whether it is capable of a sufficiently broad and malleable construction that could encompass evolving national identities. If it is, then it is crucial for the EU to consider how it can respond to this possibility and manage, or indeed avoid, the application of Article 4(2) TEU where it wishes to maintain or introduce harmonising measures and uniformity.

In order to address these issues, it is important first to consider the interplay between the EU and national constitutional courts in determining the latter's influence (Section 2) and the resulting flexible parameters for the concept of 'national identity' (Section 3). The article continues by focusing on the potential evolution of national identities within the Member States, as exemplified by the French Charte de l'Environnement, and the consequences for the application of Article 4(2) TEU (Section 4). In light of this possibility, consideration is given to how the EU might avoid potential conflicts and manage Article 4(2) TEU in practice, thereby protecting the uniform application of EU law (Section 5).

2. Determining the scope of Article 4(2) TEU: input by the Member States?

The elements encompassed by national identity remain unclear, as does whether the Member States or the CJEU will in practice have the last word in relation to Article 4(2) TEU's application. [18] This is as the dilemma centres on the location of the term within EU law (the CJEU's jurisdiction) to denote something fundamental to the Member States (the national constitutional courts' jurisdiction). In theory therefore the CJEU should be responsible for determining the meaning and general scope of the concept itself, whilst the Member States should be responsible for the main part in identifying and determining the content of their individual national identities. However, the two aspects are closely interlinked and made more complex by the existence of related constitutional reserves. [19] As shall be seen, due to the relationship, Article 4(2) TEU has the potential to become the focal point of negotiations and dialogue between the courts or - if the national constitutional courts or the CJEU resist - the new battleground for the struggle over authority. [20] If the national courts and the CJEU are to avoid an outright rupture, then some form of cooperation and judicial dialogue will be required in relation to the scope of the provision, [21] as recently affirmed by AG Villalón in the Gauweiler case noted below. [22]

2.1 Consideration of national constitutional reserves and constitutional identity

Across the EU, a number of Member States have not accepted the absolute authority of EU law, but instead applied " constitutional tolerance". [23] Their constitutional courts therefore have imposed constitutional reserves in relation to some areas and fundamental principles/rights and have also maintained that they retain competence in relation to whether EU competence has been exceeded or not. [24] However, as Article 4(2) TEU reflects [25] and even mirrors some of the existing national constitutional reserves, [26] the two are growing increasingly intertwined.

Whilst some Member States maintain their constitutional reserves, changes are visible at a national level that reflect and demonstrate the influence of Article 4(2) TEU and the concept of national identity. [27] This is exemplified by France'sConseil Constitutionnel adapting their main constitutional reserve from consideration of express contrary provisions of the Constitution [28] to that of rules and principles inherent to the constitutional identity. [29] Further, the BVerfG's Lisbon Decision provides a clear example of national constitutional reserves considered in conjunction with Article 4(2) TEU. The BVerfG identifies the linked but distinct constitutional reserves ofultra vires review (i.e. the competence of the EU to act) [30] and constitutional identity. [31] The constitutional identity reserve was defended on a range of bases, including through reference to Article 4(2) TEU itself, which the BVerfG considered went hand-in-hand with the reserve of constitutional identity. [32] Consequently, although the BVerfG relied predominately on national law and values to justify the continuing constitutional reserve, it also availed of Article 4(2) TEU to support its position.

In cases before both the French Conseil Constitutionnel [33] and the German BVerfG, the national identity clause was seen as protecting the sovereignty of the Member States from the principle of primacy, leading to the possibility of ratification of the relevant Treaties without amendment of the national Constitutions. Simultaneously, the clause was seen as reflecting the existing national approaches, with the BVerfG expressly linking the two concepts of national and constitutional identity. Thus, for the BVerfG, EU measures that do not respect the constitutional identity will be invalid under both national constitutional and EU primary law via Article 4(2) TEU.

The result is one of measured and conditional trust. The national constitutional courts' approach overall is still challenging, but the convergence does reflect some degree of flexibility and willingness to allow Article 4(2) TEU to be the focus rather than the traditional reserves. Provided that the Member States' constitutional courts consider that Article 4(2) TEU offers adequate protection of fundamental values/their constitutional identity, then it is likely that they would adapt their own reserves to further reflect the provision [34] and indeed leave the matter with the CJEU as sufficiently protected by EU law, [35] as reflected in the decision of the French Conseil Constitutionnel regarding the Constitutional Treaty. [36] In doing so, the national constitutional courts are relying upon their interpretation of EU law, specifically Article 4(2) TEU, as reflecting their national constitutional reserves and the assumption that the CJEU will interpret the provision similarly.

2.2 Adoption by the CJEU of the link between Article 4(2) TEU and national constitutional reserves?

If the CJEU is to avoid outright rupture or conflict, then it too will have to make its own concessions and engage in this dialogue also. If the CJEU limits itself to a narrow understanding of national identity that omits elements such as constitutional values and principles, then the difficulty is that national constitutional courts are likely to persist with their current approach in parallel. [37] This is supported by national constitutional courts essentially stating that ratification was constitutional provided that Article 4(2) TEU was interpreted flexibly. It also is reflected in the BVerfG's recent Outright Monetary Transactions (OMT) Decision, which seemingly is concerned that the CJEU's current interpretation of national identity may be insufficiently flexible to encompass German constitutional identity. [38]

The OMT Decision led to the BVerfG's first preliminary reference (Gauweiler) [39] to the CJEU. Although the reference could be considered to be a sign of deference and conciliation, it equally can be interpreted as a challenge to the CJEU by the BVerfG. [40] This is as the BVerfG effectively threatened that, depending on the CJEU's response, it would have to determine whether the German constitutional identity was endangered and therefore undertake its own identity review. [41] This threat was not appreciated by AG Villalón, who emphasized in his Opinion in January 2015 the dangers of constitutional courts interpreting constitutional identity as different from national identity in Article 4(2) TEU. [42] However, following the OMT Decision and prior to the AG's Opinion inGauweiler, the BVerfG's President, Prof. Andreas Vosskuhle, has spoken of the importance of judicial dialogue and cooperation between the courts [43] - a viewpoint confirmed by AG Villalón, noting the challenges posed by the claims for authority by both courts and the need for mutual loyalty and "trust" between them. [44]

The situation emphasizes the on-going tug of war that the national constitutional courts and CJEU are engaged in over sovereignty and questions relating to primacy and Kompetenz-Kompetenz. Although there is significant posturing surrounding the OMT/Gauweiler cases, the statements by Prof. Vosskuhle and AG Villalón indicate that both courts still seek to avoid outright conflicts and that a mutually respectful interpretation of national and constitutional identities has become central to achieving this goal. The statements thereby support the possibility of a flexible approach by the CJEU in determining the parameters of the concept of national identity. Yet, if the CJEU takes a flexible approach that encompasses much of the national approaches and specifically constitutional identity [45] within the ambit of Article 4(2) TEU, would this not merely just be conceding authority to the Member States?

Although as noted above, Article 4(2) TEU could be considered to mirror the national approaches, an important distinction exists in its source in EU law. [46] Whilst the national constitutional reserves are within the remit of national constitutional courts, the CJEU is ultimately responsible for Article 4(2) TEU. A flexible approach does not equate to a boundless one or necessitate that every aspect of a Member State will be part of its national identity. Nor does a flexible approach grant the Member States a carte blanche in protecting these national identities, as the CJEU will still retain its role in evaluating the proportionality of any measures - either in direct actions [47] before it or through preliminary rulings. [48] Thereby, the CJEU can maintain its control over Article 4(2) TEU's application via providing some guidance as to the general parameters, ensuring that the aspects truly are 'inherent' to the national identity (in light of some margin of appreciation), interpreting away breaches and in particular through assessing the proportionality of any measures.

Furthermore, whilst allowing the Member States some freedom, Article 4(2) TEU is a self-imposed restriction on EU action and the force of EU law where in conflict with national identities. This allows the EU and the CJEU to provide the Member States with some greater flexibility regarding fundamental elements whilst avoiding any outright conflicts or concessions over authority. Thus, it can be considered that the impact of Article 4(2) TEU is to impose limits on the principle of primacy's application in accordance with EU law, [49] rather than rupturing with the doctrine of primacy. [50] Thereby, the apparent breach of national constitutional law becomes a potential breach of Article 4(2) TEU instead and does not directly contradict the CJEU's statement in Internationale Handelsgesellschaft [51] that the validity of EU law "cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of national constitutional structure." Alternatively, it can be considered as a limitation on the exercise of competence, by ensuring that the EU acts within its competence in accordance with the principles of subsidiarity and proportionality - again according to EU law as adjudicated by the CJEU. This is a fundamental difference that enables the CJEU to maintain its own claims to ultimate authority, reconcile the approach with its acquis communautaire and yet engage in judicial dialogue with the national courts regarding elements previously protected predominately by national constitutional reserves. Considering that this specter of outright conflict is currently looming over Luxembourg in the form of the Gauweiler reference from the BVerfG, such an approach seems desirable from both the national and European sides.

Although not a panacea or resolving the power-struggle, Article 4(2) TEU does provide a new focus for both the CJEU and the Member States that may guide and tailor future debates - one that is acceptable to both the national constitutional courts and the CJEU without a need to capitulate entirely on the debate over sovereignty. Article 4(2) TEU could therefore be used to manage potential constitutional conflicts and represents a practical response to Maduro's concerns over "contrapunctual law" and constitutional pluralism. [52] However, for this to be achieved it is necessary for the CJEU not merely to allow the legal effects mentioned briefly above, but also a flexible understanding of national identity that bears in mind and is responsive to the Member States' understandings of their national or constitutional identities - if possible.

3. Flexible parameters of "national identities"

The provision itself is sparse and of little help in identifying the scope or parameters of national identity, which is understandable in light of its more aspirational roots. However, crucially the provision thereby does not necessarily impose a restrictive interpretation and the CJEU's and national constitutional courts judgments together can support a broad and flexible understanding of national identities.

Since the Lisbon Treaty, Article 4(2) TEU provides that the national identities to be respected are "inherent in [the Member States'] fundamental structures, political and constitutional, inclusive of regional and local self-government." This indicates that elements such as constitutional structures will inform the content of a Member State's national identity. [53] Indeed, as a minimum core, it is clear that the national identity includes the structural elements [54] such as whether a State is a republic or a monarchy, [55] and whether the State is federated or not. [56] However, it also raises serious questions as to whether national identities are limited to those structures, what these involve and also what exactly the relationship is with national conceptions of constitutional identities. [57]

The most obvious move beyond "structures" is the encompassing of language, which has long been considered as a legitimate objective and part of national identity. [58] In Case C-51/08 Commission v Luxembourg the CJEU recognised the national language as part of the national identity that was to be respected by Article 4(2) TEU. [59] This has been confirmed in Runevič-Vardyn and more recently in Las [60] in both the CJEU's Judgment [61] and the Opinion of AG Jååskinen. [62] Furthermore, Las related to Flemish as one of two official languages in Belgium, confirming that Article 4(2) TEU can encompass at least a multi-faceted national identity.

Whilst the CJEU has not expressly confirmed other elements within the Member States as being aspects of their national identities, [63] there are clear indications that a broader approach exists and may be developed further by the CJEU. [64] In contemplating the future parameters of national identities, consideration of the national constitutional courts' understanding of constitutional identities is helpful in light of the relationship between the courts and the terms. Indeed both AG Maduro in Michaniki and AG Bot in Melloni considered that constitutional identity was part of national identity. [65]

Although constitutional identity is another concept that is difficult to pin down, [66] aspects expressly encompassed so far include: the secular nature of the State or 'principe de laïcité'; [67] the social character of the State; [68] the fundamental right to security in old age, reflected in retirement pensions; [69] and budgetary controls. [70] The most detailed list is found in the BVerfG's Lisbon Decision, [71] which includes:

"decisions on substantive and formal criminal law (1), on the disposition of the monopoly on the use of force by the police within the state and by the military towards the exterior (2), fundamental fiscal decisions on public revenue and public expenditure, the latter being particularly motivated, inter alia, by social policy considerations (3), decisions on the shaping of living conditions in a social state (4) and decisions of particular cultural importance, for example on family law, the school and education system and on dealing with religious communities (5)." [72]

Although these examples were raised in relation to specific Member States, the elements could be used to inform the concept of constitutional or national identities more generally and thereby its scope. Furthermore, although not infinite, it may well be that a wide range of aspects exist within the Member States that are part of their constitutional or national identities and have yet to be identified before the courts. Crucially, whilst the aspects identified as part of national or constitutional identities are not self-evident from the wording of Article 4(2) TEU, neither are they necessarily excluded. Consequently, it is open to the CJEU to take a flexible interpretation of national identities that can encompass those aspects highlighted by the Member States - including those that may be identified in the future.

4. Conclusion on the general scope of national identities

In light of the CJEU's willingness to move beyond structures, the statements by various AGs and the relationship between the national constitutional reserves and Article 4(2) TEU, the CJEU is likely to take a flexible approach to the parameters of the concept of national identities and be informed by the national constitutional courts in this regard. What manifests as a result is a relatively broad understanding of national identities that can adapt where appropriate, with important consequences for the provision's application.

A broad interpretation of national identities is of significance in both the short and long term. It acknowledges the importance of those elements considered by the Member States to be central to their national identities, reassuring them that continued expansion and harmonisation will not railroad their core identities. It does this for those Member States who go before the CJEU, but also more generally, as it would be extremely difficult for the CJEU to deny an individual Member State that their language, political structures or budgetary controls were part of their national identity having just acknowledged it for another Member State. Furthermore, by demonstrating the flexible nature of the concept of national identities, it leaves the door open for other aspects to be identified and encompassed within the scope of the concept and thereby Article 4(2) TEU. This is of particular importance in light of the increased heterogeneity across the Member States following accessions, e.g. regarding social and economic principles.

These are important elements on their own, but the applicability of the provision is widened once more if one considers the possibility for specific national identities to evolve or develop without obviously breaching EU law, in a manner that allows the Member States to rely upon these to justify national measures that later conflict with EU law or indeed to prevent future harmonisation.

5. The Potential Evolution of National Identities - France's Charte de l'Environnement

As noted above, Member States already influence the general scope of national identities, but their primary role will be to identify the content of their own specific national identities [73] or indeed in rejecting some aspects as with Spain in the case of Melloni. [74] Given some flexibility, there is significant potential for a Member State to identify a range of elements that are fundamental to it. Even the fact that the CJEU has considered regional languages as part of the national identity demonstrates a willingness to at least consider multifaceted national identities. This is also reflected in the national courts identifying elements that they consider to be part of their national identities, but importantly, non-exhaustively. Therefore, it is crucial here to consider the possibility of later identification of elements of national identities - ones that do not come to mind at the time as not contextually relevant [75] or, more significantly, ones that evolve.

Concepts of 'sameness' and 'selfhood' have been suggested as core elements of identity, applicable to the individual and the State. [76] Sameness focuses on stability - core aspects of the State that remain constant over time, perhaps reflected in constitutional entrenchment. [77] This reflects the Lisbon Decision considering that Article 79.3 of the Grundgesetz reflected German national identity, as unchangeable and everlasting - hence the 'Eternity Clause'. Yet, selfhood is also part of identity, but in contrast is linked to initiative and developing oneself. Paralleling an individual's development over their lifetime, national identity does not necessitate something stagnant or crystallised. [78] Instead it can evolve and be developed through various mechanisms, e.g. through societal shifts, secondary legislation, jurisprudence and constitutional amendments. Thus Jacobsohn considers that "constitutional assertions of self-definition are part of an ongoing process entailing adaptation and adjustment as circumstances dictate." [79] Consequently, new aspects may arise that should or could be construed as part of constitutional and national identities, thereby broadening the scope of Article 4(2) TEU and changing its application to the specific Member State.

A relatively dramatic example would be a change from a monarchy to a republic, or vice versa. Indeed, if Scotland's referendum to leave the UK had passed, there would have been a clear impact upon the UK's structures but also broader aspects such as their culture and language. A much more halting and fluctuating change is visible in Ireland, which has gradually seen the Catholic church's place eroded in the legal context at least, legal rights spreading beyond the traditional understanding of marriage and consideration given to developing exceptions to the prohibition on abortion. Few would consider the identity of Ireland to be the same as it was when the Constitution was written in 1937 or that it is at a standstill. [80] Indeed, the constitutional referendum in May 2015 to facilitate same-sex marriage would have been unthinkable in Ireland until recent decades and, although still somewhat contentious, now has significant public support. [81] Seismic shifts of national identities are clearly unlikely, especially as the main obvious mechanism is through constitutional amendment. [82] Nonetheless, the possibility exists for their evolution and, consequently, this potential must be borne in mind when considering the application of Article 4(2) TEU.

One such area that could evolve as part of a national identity and thereby pose significant challenges for the EU relates to environmental values and principles. Firstly, the area is one of shared competence within the EU, [83] thereby allowing Member States some flexibility in taking their own approaches. This is exemplified by Article 193 TFEU providing for Member States to take "more stringent protective measures". Secondly, the growing focus upon environmental protection internationally increases the likelihood of the constitutionalisation of elements such as environmental principles, rights or obligations. This is reflected by the Single European Act's introduction of the Environmental Title and the CJEU's development of the environmental principles. It is also exemplified by the French Environmental Charter (Charte de l'Environnement), which arguably reflects an evolving French national identity.

5.1 Charte de l'Environnement

Within France, from the national viewpoint, the 'bloc de Constitutionalité' rests at the summit of the hierarchy of norms. It comprises of the entirety of constitutional norms within France and includes the 1958 Constitution (the current Constitution establishing the 5^th Republic), the Preamble of the 1946 Constitution, the fundamental principles of law recognised by the French Republic as referred to within the Preamble of the 1946 Constitution (generally seen as those recognised by the laws of the 3^rd Republic) and the Declaration of Rights of Men and Citizens of 1789. [84]

Although it could be argued that much of this bloc is inherent to the French national identity, [85] as reflected within its constitutional law, the aspect of relevance to us is the Charte. The legacy of President Jacque Chirac, this was incorporated into the Constitution in 2005 via the sole amendment to the Preamble of the French Constitution since its creation in 1958. Although not heavy in detail, the substantive nature of the document was recognised within France at the time, where it was hotly contested up to and including its incorporation within the Constitution. [86]

The Charte comprises of a Preamble and 10 Articles. Its raison d'être, reflected within the Preamble, is that the environment is a resource and the common heritage of mankind requiring its preservation to protect the needs of future generations. Within the Articles one can identify versions of core environmental principles, including prevention, [87] precaution, [88] polluter pays [89] and the concept of sustainable development. [90] Interestingly Article 1 expressly states that each person has the right to live in a stable environment that respects health and is supported by the corollary in Article 2 that everyone has a duty to contribute to the preservation and improvement of the environment, which is developed and clarified to an extent by the following Articles. [91] The remainder of the Charte addresses research, education and access to information on the environment.

For the main part, the content reflects or even parallels much of the content of environmental law within EU law, especially due to the sparse statements in relation to most of the principles and the fact that these principles are similarly found within Article 191 TFEU. However, three aspects in particular can be identified within the Charte that may lead to future conflicts, which are the individual's right to a stable environment respectful of health, the obligation upon the individual to prevent or minimise environmental harm and the provision regarding the precautionary principle. Unlike the other principles within the Charte, Article 5 provides for a limited definition of the precautionary principle. It is similar but distinct from the various statements [92] of the principle developed by the CJEU. [93] Article 5 focuses on damage that "could affect the environment in a serious and irreversible manner" (emphasis added) and although the terms 'serious' and 'irreversible' have been used by AG Léger [94] they have never been imposed as a cumulative requirement by the CJEU itself. Furthermore, Article 5 imposes an obligation upon the public authorities to ensure the implementation of risk evaluation procedures and the adoption of temporary and proportionate measures where the principle applies, without being conditional upon the procedures or details being legislated for first. [95] Although considered a general principle of EU law, [96] under EU law there is no general obligation to take measures, as the appropriate response in light of proportionality may be to take no action. Furthermore, the application of proportionality depends on the level of protection chosen and the weighting given to conflicting interests, leaving the possibility that France could determine that the Charte reflects a very high level of protection of the environment to be attained that might be greater than that aimed for by the EU.

Without entering into a detailed examination of the exact consequences of these provisions, it suffices for the purposes here to note that there are substantive differences between the content of the Charte and EU environmental law. Thereby, there is potential for conflict between EU law and either the content of the Charte itself or the measures that are taken as a result of its provisions. [97]

5.2 Respecting the Charte

In the case of conflict between ordinary French law and EU law, the approach by the national courts reflects the principle of primacy as established by the CJEU, with the result that national law would be set aside where necessary due to Articles 55 and 88 of the French Constitution. [98] However, the inclusion of the Charte within thebloc de constitutionalité raises questions as to how this would impact upon any potential conflict. Traditionally, under EU law, the Charte or any measures resulting from it that conflicted with EU law would be required to be set aside, identically to how ordinary national law should be treated. However, the French courts have not treated constitutional law identically, but instead have created constitutional reserves. [99] As noted above, the latest articulation of this by the Conseil Constitutionnel considers that EU law cannot interfere with, or have primacy over, rules and principles inherent to the French constitutional identity. [100] Further, Article 4(2) TEU could now apply to matters relating to the Charte.

Clearly not all constitutional components are protected by either the French constitutional reserves or Article 4(2) TEU. However, it is a reasonable and logical argument that the content of the Charte or at least much of it has become part of the constitutional identity, and thereby the national identity, of France. In particular, the Charte's inclusion within the bloc de constitutionalité through express reference within the Constitution's Preamble is significant, as the sole change to the Preamble since its creation in 1958 - it demonstrates France's recognition of the importance of environmental protection at the most fundamental level within the State. [101] It would be difficult to counter a claim that environmental protection as found within the Charte was part of France's evolving national identity, unless France's own actions and statements contradicted such a claim. [102]

Consequently, it would be open for the Conseil Constitutionnel to conclude that aspects relating to the Charte were inherent to the constitutional identity and therefore should be protected regardless of the principle of primacy and conflicting EU law. [103] In parallel, it would also be open to the national courts and in particular the CJEU to consider that France's national identity was at stake and therefore should be respected, through interpreting any existing derogation in light of the national identity, granting an independent derogation or even finding EU law in breach of Article 4(2) TEU as noted above. Therefore, if accepted as part of the constitutional identity and thereby the national identity, proportionate measures resulting from the Charte that conflicted with EU law could now be protected legitimately even in the eyes of the CJEU.

6. Conclusions on the evolution of national identities

The Charte de l'Environnement is merely one example of the potential evolution of a national identity. Environmental values and principles have been adopted into constitutional law elsewhere within the Member States, e.g. in Germany [104] which also has been a leader in the green economy. Beyond the environment, amendments to core aspects of Member States whether constitutional or not occur on occasion even if not regularly, e.g. in altering the powers between bodies, regarding the role of religion or different groups to be given special protection. These will not always relate to the national identity [105] or may reflect the national identity as it already exists. However, at least some amendments may affect the national identity, thereby impacting upon the scope and application of Article 4(2) TEU.

If the nature and extent of the national identities evolve, this logically can expand the scope and application of Article 4(2) TEU, generally and vis-à-vis individual Member States. This strengthens the position of the Member States relative to the EU, with protection not merely via the national constitutional reserves but also in accordance with EU law itself. Consequently, it is clearly advantageous for Member States to develop their national identities if feasible and desired. However, it is equally important for the EU to consider the potential impact of such developments and how it might negotiate, manage or indeed avoid the application of Article 4(2) TEU in areas where it might wish to act and specifically to harmonise.

7. EU Management of Article 4(2) TEU and National Identities?

The goal here is not to prevent the Member States from protecting their existing national identities, or indeed to backtrack and avoid acknowledging the legal scope or force of Article 4(2) TEU. Article 4(2) TEU represents an important card in the Member States' hands in the delicate balancing act between the effectiveness of the EU on the one hand and the Member States' sovereignty in essential or fundamental areas on the other. It is capable of facilitating judicial dialogue and supporting constitutional pluralism, whilst an overly restrictive approach might encourage outright conflict. Consequently, it is important to maintain flexibility and respect these identities, tempered by some judicial control such as through ensuring that the aspects are part of the national identity (with some margin of appreciation in light of the national prerogative to determine their own identity) and that the relevant measures are proportional, in order to avoid abuse or just excessive reliance upon Article 4(2) TEU. However, this does not lessen the impact upon the EU and the significance of considering how generally to maintain harmonisation and achieve the EU's objectives in conjunction with upholding Article 4(2) TEU.

Where the national identities are clear prior to the creation of the EU harmonising measure, this may be achieved via express derogations or leaving sufficient flexibility that enables harmonious interpretation, which indicates an important role for Member States in highlighting potential conflicts with their national identities and negotiating mechanisms for the EU to respect these. Although these mechanisms would impact on the nature of the harmonising measure contrary to the EU's original intentions, the compromise would facilitate some harmonisation. [106] Alternatively the clear conflict with national identities may indicate that issues of competence, subsidiarity and proportionality arise, in particular where the conflict arises with the national identities of numerous Member States. In this case, it may not be appropriate for the EU to act, or at least not to harmonise the area to the extent initially intended. [107] However, a significant challenge posed in the long-term by Article 4(2) TEU for the EU is that the conflict will not necessarily be clear initially and that, as demonstrated, the national identities may evolve to lead to future conflicts.

Where there is no clear existing conflict with national identities in advance, the 'simple' solution for the EU is to develop and harmonise those areas first. Whether this will be feasible or not will depend on a number of factors, including competence, subsidiarity and the necessary political will. Provided that the EU is able to do so, the Member States then will be curtailed in their actions to the extent that they have been pre-empted by the EU, [108] as they must not conflict with existing EU law. [109] Therefore, national legislation or legislative proposals that might lead to developing the national identity must be set aside if there is a breach. As not yet part of the national/constitutional identity, it cannot be saved by either Article 4(2) TEU or national constitutional reserves. Hence, the development of EU law and consequently harmonisation creates a legal obstacle to the potential evolution of a Member State's conflicting national identity within the area.

Furthermore, France's approach to the precautionary principle demonstrates the practical role that developing EU law may play in forestalling or guiding national action, through contrasting the approach within environmental law and food law. Although the precautionary principle is relevant to both environmental and health protection, the principle and its definition have only been developed within French environmental law. In the context of environmental protection where only bare statements existed within EU primary and secondary legislation, France incorporated the precautionary principle via the loi Barnier [110] into the Rural and Environmental Codes [111] initially and later created the Charte de l'Environnement containing a further definition of the precautionary principle, [112] which then gained constitutional status via its incorporation into the Preamble of the French Constitution in 2005. In contrast, France's National Food Council (NFC) considered that any potential national definition should take into account the EU's more detailed statement of the principle within the proposed regulation on the general principles in food law [113] that shortly thereafter led to the General Food Law. [114] Although the General Food Law had yet to be finalised when the NFC's report was created, substantial agreement had been reached upon the content therein and it clearly influenced the NFC in considering whether and how to develop a definition of the precautionary principle in the regime.

However, the EU will not be able to avoid all conflicts, nor prevent all changes to national identity, especially as some occur without an obvious and direct action by the Member State that can be challenged or prevented or the proposed change may actually already reflect the existing national identity. Alternatively, the changes may occur in areas of exclusive competence of the Member States and, even where the EU does have competence, EU action frequently does not lead to 'field pre-emption' covering the entire area. [115] Instead Member States are merely pre-empted to the extent that the EU has acted. If the Member States retain full or shared competence in the area, then typically they may act provided that they do not conflict with EU law [116] or pose obstacles to the objectives of the EU. [117] Furthermore, even the right to change a national identity in the relevant manner might be so inherent to the existing national identity that to prevent it would be in itself contradicting Article 4(2) TEU! [118] Nonetheless, the theoretical scope of Article 4(2) TEU and the challenges that it poses in particular for further harmonisation highlight the need for the EU to consider how it might be able to limit the possible application of the provision and avoid Member State reliance upon evolving national identities.

Consequently, if one returns to the example of environmental values and principles, if the EU is to have its own definition and understanding of environmental principles across all relevant regimes, or even within individual regimes, then it is of importance for the EU to develop these promptly. By doing so, the EU would avoid being excessively influenced by national understandings in a manner that may not be desired and which becomes more difficult to overrule at a later stage, either before the CJEU or in legislating. It could also circumvent conflicts over constitutionality and sovereignty, through pre-empting any attempts to incorporate and define environmental principles at a constitutional level within the Member States, thereby facilitating some stability and harmonisation. In contrast, from the Member States' point of view, the lack of full harmonisation allows for development of a national identity in this area, which then could be protected either in line with Article 4(2) TEU or, if a narrow approach were taken by the CJEU, in line with their own national reserves.

7. Conclusion

Overall, Article 4(2) TEU is not revolutionary in itself, but it does facilitate Member States in justifying their own measures or even in challenging EU law on the basis that the EU must respect their national identities. The background presence of national constitutional reserves makes it self-defeating for the CJEU to take a narrow approach in relation to Article 4(2) TEU, especially in light of the acknowledged links. Furthermore, the possibility of encompassing evolving national identities widens the scope of the provision and subsequent application significantly. It is consequently not merely important for the CJEU to provide some general, flexible guidelines on the scope of the provision when given the opportunity, but also highlights the significance for the EU legislative and executive bodies to address this issue and decide at an early stage whether to harmonise relevant areas before Member States evolve in a way that prevents such measures in the future.