A principal-based EU challenge to East Central European judicial interpretation of constitutional identity

Project Information

Supra-Nat

Grant agreement ID: 794368

DOI

10.3030/794368

Project closed

EC signature date 19 March 2018

Start date 1 September 2019

End date 31 August 2021

Funded under

• EXCELLENT SCIENCE - Marie Skłodowska-Curie Actions

Total cost

€ 171 460,80

EU contribution

€ 171 460,80

Coordinated by

WISSENSCHAFTSZENTRUM BERLIN FUR SOZIALFORSCHUNG GGMBH
Germany

Periodic Reporting for period 1 - Supra-Nat (A principal-based EU challenge to East Central European judicial interpretation of constitutional identity)

Reporting period: 2019-09-01 to 2021-08-31

Summary of the context and overall objectives of the project

This Marie Skłodowska-Curie Action (MSCA) is titled “A principle-based EU challenge to East Central European judicial interpretation of constitutional identity”. This project looks at: (1) how East Central European constitutional courts, more specifically, the constitutional courts of the so-called Visegrád countries (V4) – Hungary, Poland, Slovakia and the Czech Republic – apply and interpret the concept of constitutional/national identity, and (2) how the European institutions, first and foremost the Court of Justice of the European Union should respond the judicial interpretations going against the underlying foundational values of the European Union.

These topics are important for society because recently, constitutional – or, in effect, national – identity has been rediscovered in common ancestry and cultural heritage, enabling the V4 governments to advance exclusivist agendas. Parallelly, constitutional courts have played a crucial role in invoking the concept of identity and have tended to accept their respective governments’ reasoning on the need to protect their countries’ distinctive identities. Unfortunately, the institutions of the European Union do not seem prepared to identify and address the anti-constitutional challenges posed by the judicial invocation of ethnocultural national identity. Thus, this MSCA offered a critical-analytical review of the judicial invocations of constitutional/national identity and a principle-based tool for a constitutional challenge to these judicial invocations.

Formal objectives of this MSCA have been to provide (a) a comparative-analytical description of the judicial interpretations of constitutional/national identity in the V4 countries and (b) a new theoretical basis for a principle-based EU challenge to the ethnocultural understanding of national identity. Another goal of the MSCA Individual Fellowship is to foster the development of the individual researcher. In this project, the objectives and goals have been addressed via four specific work packages: (1) development of a theoretical framework for the analysis of the concept of constitutional identity; (2) connecting the theoretical framework with the concept of identity under EU law; (3) applying the theoretical framework in four plus one case studies (4) overall analysis and conclusions of the entire project.

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

Although when implementing the project, the MSCA Research Fellow had to adapt to the exceptional circumstances due to Covid-19, the goals and objectives of the MSCA proposal have been fully met.

As the kick-off of the MSCA project, the Fellow organised a workshop on the occasion of the 30th anniversary of the 1989 round table discussions in East Central Europe, which yielded the Verfassungblog symposium 19 89 19: Thirty Years After the Round Tables.

The first part of the project dealt with the challenges to constitutionalism in the European Union and investigated both the meaning of constitutionalism and the nature of the anti-constitutional developments in the V4 countries. This research yielded two book chapters, a journal article and a couple of blog posts. Later, the Fellow examined how constitutionalism is protected on the European level (both within the framework of the European Convention on Human Rights and the Treaty on European Union) and studied how the concept of constitutional identity fit into the European constitutional project. A couple of journal articles resulted in English, German and Hungarian, and the Fellow delivered the main findings at leading conferences (Council of European Studies, ICON-S).

During the third part of the project, the Fellow learned about the concept of national identity applied by EU law. The Fellow wrote a journal article on the concept of identity under EU law, which argues that the concept of national identity in EU law is a constitutionalist one and demonstrates how an ethnocultural national identity claim runs counter to this constitutionalist concept.

The Fellow also conducted an in-depth analysis of 4 + 1 case studies: the Visegrád countries and Germany. The reason for including Germany was that this country and its constitutional jurisprudence on constitutional identity served as a reference for the V4 countries’ constitutional courts. The Fellow was supposed to gather data at the respective constitutional courts, but the courts suspended all research visits because of the pandemic. Therefore, the Fellow Zoom-interviewed constitutional judges and experts of the V4 constitutional courts.

In the last phase of the project, the Fellow has prepared a manuscript of an edited collection and submitted the manuscript to a major international publisher and as a special journal issue proposal.

The Fellow delivered a total of twenty-three publications. Furthermore, an additional journal article and two book chapters are underway. The Fellow has published the project results in English, German, Hungarian, Polish and Romanian. All publications are available either on the website of the respective journal as Open Access or on the Fellow’s Academia.edu website. The Fellow set up a special trilingual (English, German and Hungarian) website for the project where the research activities are made known to society. Both the Fellow’s home university and her host institution promoted the Fellow’s presentations and publications using their social media accounts. The research outcome is also communicated on the Academia.edu website of the Fellow. In 2018, the Fellow’s Academia.edu site had 2,061 views and 47 followers. In 2021, it had 6,735 views and 134 followers.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

This MSCA project has three key novel aspects. First, this is the first research project discussing particularism as a constitutional matter. It understands particularism as particularistic concretisations and judicial interpretations of universal constitutional principles (human rights, democracy, and the rule of law). The project is concerned with whether there is a legitimate space for particularism in a constitutional democracy and exploring the possible role of the national constitutional judiciary and the ECJ in determining this space.
The second novel aspect is the project’s geographical focus. Despite the existing research projects on constitutional identity and its role in EU law, little attention has been paid to recently emerging national identity claims in EU member states that are at odds with European constitutionalist principles. This project undertakes constitutional analyses of the V4 constitutional courts’ jurisprudence because they have played a determining role in promoting particularism. The V4 courts’ jurisprudence on identity is of utmost importance, yet it is less accessible to scholars from other countries. The project offers a comprehensive overview and a critical analysis of the relevant judgments and therefore fills a gap in the English-language academic literature in the field.
Third, the project establishes a principle-based tool for a constitutional challenge to the judicial invocation of national identity. It identifies and suggests European legal mechanisms that promise to be effective in encouraging states to fall in line with constitutional commitments.

Colourful and united