L'identità costituzionale nel diritto dell'Unione europea: un nuovo concetto giuridico?

The concept of "constitutional identity" has been developed by the Bundesverfassungsgericht and has been followed by other constitutional courts in order to protect the state from the threats posed by an "unlimited openness" to the european integration process. In this context it has performed three basic function: a) as a limitation to the absolute primacy of the EU law; b) as a limitation to the conferral of new powers to the European Union; c) as a doctrine legitimizing the constitutional courts of the Member States to reviewing the respect of the principle of conferral of competences by the institutions of the European Union. Once introduced into the Treaty on European Union by the Lisbon Treaty, the concept of constitutional identity does not seem appropriate to perform this defensive function. However, the concept cannot be brought back to other legal institutions and doctrinal constructions aimed at protecting the state's constitution from the external interference, such as the theory of the fundamental right of states to independence; the principle of non-intervention in internal affairs; and the principle of domestic jurisdiction. Following these premises, the functions that the constitutional identity concern three different plans: a) the political legitimation of the process of European integration; b) the review of the legality of the acts of the Institutions of the European Union; c) the interpretation of the law of the European Union, and particularly the primary norms.