Der Schutz nationaler Identität in der Europäischen Union

With the Lisbon-Judgment of June 2009 the respect granted in Article 4 § 2 TEU, of the national identities of the Member States has become a crucial notion of European constitutional law. The German Federal Constitutional Court connotes the national identity of Germany with the »eternity-clause« in Article 79 § 3 of the German Constitution, so the basic values and principles laid down in Articles 1 (human dignity) and 20 (rule of law, democracy, social protection and cohesion) shall not be affected by any constitutional amendmend nor by any act related to European integration. The protection of national sovereignty including self-determination of the German people is suggested by the Court to be part of the principles covered by the »eternity-clause« and, thus, determining the constitutional identity of Germany. The present contribution argues that this approach misconstructs the notion of national identity in neglecting the fundamental decision taken by the German people in the wake of World War II not to repeat earlier errors and to follow, in giving itself the Grundgesetz, a new approach of open democratic statehood. This is what the Preamble of the Grundgesetz makes plain when conceptualizing the German people as equal partner in a united Europe determined to serve worldwide peace. The commitment to a united Europe must be understood, therefore, as a basic element of Germany's national constitutional identity. Concepts of state and sovereignty have changed. This has implications for the notion of national identity. Article 4 § 2 TEU and many provisions of the Treaties aiming at the preservation of a number of sensitive policy areas like security and the monopoly of physical coercion, culture and education, social assistance etc. for national autonomous ruling in turn ensure constitutional diversity and self-determination of the Member States as a fundamental value of the Union. The respect of their national identity can, therefore, be construed as a »federal fundamental right« of the Member States to be respected by all political institutions of the Union and to be protected by the European Court of Justice with due regard to how each Member State constructs its national identity in concreto. Yet, it remains a term of Union law, to be constructed with regard to the integration of the Member States in the Union and on the basis of the common values and principles referred to in Article 2 TEU. Discussing the concept of national identity of the Union Member States and the modes of its protection implies understanding what the European Union is constitutionally. The vision by its framers of creating a new kind of political organization beyond statehood has led to a non-hierarchical, pluralistic structure based upon the rule of law, on cooperation and mutual thoughtfulness. Neither can a national Court escape from the legal commitments undertaken through the European Treaties, nor can these treaties be constructed as a means of supranational command and dictatorship over the states, the citizens of the Union and their courts. National identity in the European Union rather expresses mutual respect and co-responsibility of both levels for the common values and principles including the diversity and democratic self-determination of the people(s) of the Union.