<abstract xmlns="http://www.w3.org/1999/xhtml">

<p>Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is still missing. On the contrary, the reasoning employed in the Court’s case-law leaves a lot to be desired. This article explores the reasons that lead the Court to underarticulating its decisions in identity cases. I argue that the Court’s minimalism in adjudicating national identity is rooted not only in reasons driving the Court’s general minimalist approach, but also in considerations specific to identity cases. These reasons include the national identity’s inherent potential to hinder European integration, the sensitivity of determining the content of Member States’ national identities by a supranational court, the attempts to obscure the Court’s receptivity of identity arguments, and the potential to widen the applicability of its identity rulings.</p>
</abstract>

Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is still missing. On the contrary, the reasoning employed in the Court’s case-law leaves a lot to be desired. This article explores the reasons that lead the Court to underarticulating its decisions in identity cases. I argue that the Court’s minimalism in adjudicating national identity is rooted not only in reasons driving the Court’s general minimalist approach, but also in considerations specific to identity cases. These reasons include the national identity’s inherent potential to hinder European integration, the sensitivity of determining the content of Member States’ national identities by a supranational court, the attempts to obscure the Court’s receptivity of identity arguments, and the potential to widen the applicability of its identity rulings.

National Identity and Judicial Minimalism: Exploring The Cjeu’s Restraint in Adjudicating National Identity

International and Comparative Law Review

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is...

National Identity and Judicial Minimalism: Exploring The Cjeu’s Restraint in Adjudicating National Identity

Publié en ligne: 29 mars 2022

Pages: 68 - 95

DOI: https://doi.org/10.2478/iclr-2021-0014

Mots clés
National Identity, Constitutional Identity, Court of Justice, Minimalism, Judicial Reasoning

© 2021 Jan Burda, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

National Identity and Judicial Minimalism: Exploring The Cjeu’s Restraint in Adjudicating National Identity

Publié en ligne: 29 mars 2022

Pages: 68 - 95

DOI: https://doi.org/10.2478/iclr-2021-0014

Mots clésNational Identity, Constitutional Identity, Court of Justice, Minimalism, Judicial Reasoning

© 2021 Jan Burda, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Mots clés
National Identity, Constitutional Identity, Court of Justice, Minimalism, Judicial Reasoning