Speech by the President of the Constitutional Court Aldis Laviņš “Constitutional Identities in the European Union: from Emancipation towards Convergence” at the international conference “EUnited in diversity II: The Rule of Law and Constitutional Diversity”
Speech by the President of the Constitutional Court Aldis Laviņš “Constitutional Identities in the European Union: from Emancipation towards Convergence” at the international conference “EUnited in diversity II: The Rule of Law and Constitutional Diversity”[1]
The Hague, 1 September 2023
Ou nous parvenons à forger une identité européenne, ou le vieux continent disparaît de la scène mondiale.[2]
1. Introduction
The aim of this contribution is to reflect on the ‘common values’ as they are mentioned in preamble of the Charter of the Fundamental Rights of the European Union.[3] The Constitutional court of Latvia is constantly applying an open approach to international and European law.[4] Our previous case-law clearly shows that the Constitutional court gives a full application to the principles of primacy and direct effect of the European Union law.[5] In our understanding, it is the EU legal order itself that also recognises the weight of national constitutional identity.[6] Moreover, the Court of Justice of the European Union has described the founding treaties as the ‘basic constitutional charter’;[7] thus, national constitutional identity is also recognised in the ‘constitutional charter’ of the Union. Curiously, instead of developing a single European constitutional identity the Member state courts have continued to rely on autonomous national constitutional identities.[8]
The previous does not answer the question how exactly the common values appear or interact, and whether ‘common’ means absolute analogy, as in the case of the prohibition of torture or death penalty; or it could be that the notion of ‘common’ also covers values that we can all understand but does not attribute them an equal gravity. This is often the case in areas of national language, State religion, status of nobility etc. Indeed, for a Member State with a relatively small population, it may be crucial to defend its national language by granting it constitutional protection.[9]
Since the end of the Cold War, which also allowed the full return of the Latvian legal system to the values of rule of law and protection of the fundamental rights, we have been going through a historical sequence that is likely to last. This sequence is ‘globalisation’,[10] and it has fulfilled the promises of free trade, free movement of persons, and mutual recognition of judgments, among other achievements. However, it has also brought sometimes excessive standardisation, with the risk of doing away with local cultural and historical particularities.[11] These circumstances, in our view, explain the gradual appearance of the constitutional identity as an independent legal notion. The logic of the European integration requires for national constitutional identities to converge. Therefore, recognising genuine[12] constitutional identities does not lead to a deferrence to populism and to the abandonment of the European project; on the contrary, it is a practical tool to safeguard the liberal values of free trade and free movement by balancing them with the local sensibilities, such as the use of national language.
First, we will address the notion of constitutional identity, as it has been recognised in the case-law of the Court of Justice of the European Union. Second, it will be shown how the national constitutional identity was applied in a case concerning the use of a Member State language. Finally, we will suggest a set of criteria which could help to identify valid cases of constitutional identity in the future.
2. Emancipation of the Constitutional identity
On the whole, the EU legal system and the national legal orders have been receptive to each other’s constraints, where the specific features intrinsic to Member States are recognised and taken into consideration.[13]
In a recent preliminary procedure,[14] the Latvian Constitutional court asked the Court of Justice of the European Union whether the protection of a Member State language – which, in Latvia, is understood as a manifestation of national identity – may justify the restriction on the freedom of establishment. The case concerned a very strict limitation upon the higher education institutions to offer courses of study in foreign languages. Needless to say, in Latvia, the question of the Latvian language is closely linked with the country’s recent past in the Soviet Union, where the use of Latvian, although formally allowed, led in practice to a serious deterioration of the prospects for this language in the future.[15] This case shows that it is possible to conciliate the national constitutional identity with the supranational requirements. The Italian Constitutional court in a seminal judgment described the relationship between the European and national legal orders as ‘two coordinated and yet separate systems’[16] – thus the principle of primacy of the Union law does not preclude coordination.
On the EU side, European law has shown itself to be conciliatory. In some of the landmark cases – such as the Omega[17] judgment – the Court was already discussing the notion of Constitutional identity without naming it textually, since it accepted that a fundamental value of the human dignity recognised in the Member State’s Constitution is a valid reason to restrict the EU rules on the freedom to provide services.
Some years later, the notion was explained in a greater detail, where Advocate General Maduro recalled that ‘European Union is obliged to respect the constitutional identity of the Member States. That obligation has existed from the outset. It indeed forms part of the very essence of the European project initiated at the beginning of the 1950s, which consists of following the path of integration whilst maintaining the political existence of the States’.[18]
Altogether, we can identify three categories of cases where the constitutional identity has been used as legal ground justifying the restrictions on EU law. First, it has been invoked in judgments related to State language. For example, Luxembourg invoked the preservation of national identity in a demographic situation as specific as that prevailing in the [Member state] already in the mid-nineties.[19] The Court of Justice of the European Union acknowledged the constitutional concerns related to national language also in the Runevic-Wardyn[20] judgment and recently in the already-mentioned Cilēvičs e.a. judgment. In the same line of judgments, the Court of Justice of the European Union examined cases on the constitutional status abolishing the nobility such as Sayn-Witgenstein;[21] the constitutional identity was also invoked in relation to difference of treatment on grounds of religion or belief.[22]
Thus, from the perspective of the Court of Justice of the European Union, the Constitutional identity may be summarised as a legitimate concern which may justify restrictions on the fundamental freedoms. In practical terms, this shows that the Court of Justice of the European Union has been willing to reconcile market principles and freedoms with the constitutional identity.
3. Constitutional identity open to international and European law ‑ approach of the Constitutional court of Latvia
So far, the absolute majority of cases regarding the constitutional identity were not demanding unreasonable exceptions that would put the EU legal order at peril. Indeed, the Latvian legal system is guided by the principle of ‘open statehood’, characterised by the willingness to engage in international cooperation and to adopt supranational and international law. In Latvia, this principle is enshrined under Article 68 of the Constitution, which states the following: ‘with the purpose of strengthening democracy, [Latvia] may delegate a part of its State institution competencies to international institutions’.
The Constitutional court of Latvia interprets the principle of openness in the following way:
‘[the legislator] when adopting and applying national legal norms, is reminded of the supremacy of European Union law. There’s an obligation to ensure the application of European Union law in such a way as to strengthen Latvia as a democratic, law-abiding country based on the inherent dignity and freedom of every human being’.[23]
Thus, in principle, the Latvian Constitutional Court recognises the precedence of the application of European Union law over domestic law, even over national constitutional law that is contrary to EU law.
It is true that openness is not without boundaries. The precedence of EU law over any national law only applies to the extent that the Constitution transfers sovereign powers to the European Union and, to the extent that they were allowed to transfer them.[24] The Constitutional court of Latvia invoked this limit to openness and EU law precedence in our Lisbon case[25] – the Constitutional court indicated that openness may not conflict with democratic decision-making and democratic responsibility. This approach is followed by numerous Constitutional courts, as remarked in a decision of the German Bundesverfassungsgericht in a decision on the European arrest warrant, where it indicated that ‘provisions for the protection of the constitutional identity and the limits of the transfer of sovereignty rights to the European Union can […] be found in the constitutional law of numerous Member States of the European Union’.[26]
As mentioned before, protection of the Latvian language as a constitutional identity is one of the core elements of the Latvian legal order. After legislators passed a law that restricted the use of foreign languages in the higher education institutions, the Constitutional court received an application submitted by twenty members of the Parliament. In the application it was argued that the contested provisions restrict the fundamental rights to private property – as they entail restrictions on the freedom of establishment of citizens and companies originating from Member States of the European Union. They also alleged that the restriction is disproportionate, since the legitimate aim – i.e. promotion of use of the official language and preservation of national identity – can be achieved by less-restrictive means, which would allow for wider use of foreign languages. Before reaching the final decision, the Constitutional court decided to stay the proceedings and to refer two questions to the Court of Justice of the European Union for a preliminary ruling.
Regarding the nature of the restriction of fundamental rights, Advocate General Emiliou in his Opinion indicated that the contested provisions make it more difficult for certain undertakings established abroad to relocate to Latvia or to open some other places of business in Latvia. As the applicants in the main proceedings correctly point out, in so far as educational courses have to be provided (almost exclusively) in Latvian, many foreign higher education institutions will be unable to use a (probably significant) part of their administrative and teaching staff in Latvia. In addition, foreign higher education institutions are precluded from offering a more diversified and competitive range of services, such as courses taught in other languages, despite the significant demand for these.[27] The Court of Justice of the European Union added that the restriction exists also in respect of nationals of other Member States who exercised that freedom, before the adoption of the law on higher education institutions.[28] This precision was important since fundamental rights to property, in the sense of the Constitution of Latvia, do not protect businesses which have not yet obtained a licence to carry out their activities, which is necessary in the area of higher education.[29]
The Court of Justice of the European Union further acknowledged that policy of protecting the official language constitutes a manifestation of national identity for the purposes of Article 4(2) TEU. The Court confirmed, however, the broad discretion to adopt a policy of protecting the official language cannot justify a serious undermining of the rights which individuals derive from the provisions of the Treaties enshrining their fundamental freedoms.[30] It also hinted at what would be found disproportionate – legislation of a Member State which would require, with no exceptions, that higher education courses of study provided in the official language of that Member State exceed what is necessary and proportionate for attaining the objective pursued by that legislation, namely the defence and promotion of that language.[31]
After receiving the judgment of the Court of Justice of the European Union, the Constitutional court adopted the final judgment in the case. First of all, the Constitutional court interpreted the rights to property, as provided in the Constitution, together with the freedom of establishment as it is enshrined in the TFEU. Thus, the Constitutional court remained faithful to the principle of openness even in cases regarding constitutional identity.
In the judgment, the Constitutional court made a distinction between the use of European Union languages and other foreign languages in the institutions of higher education. It acknowledged that, regarding the European Union languages, it is important to strengthen the knowledge of those languages to reaffirm the integration of Latvia into Europe. Thus, the Constitutional court observed that the legislator should have taken into account that there existed a less restrictive measure, which would be more consistent with economic freedoms and the right to property.[32] As a consequence, this judgment shows that national and supranational courts may review a legal disposition that can be concretely applied to national constitutional identity. This is why, in the remaining text, we wish to suggest some criteria on how to evaluate and distinguish a genuine constitutional identity from rules which are a formal part of the national constitution, rather than related to the core values in the society. In any case, a valid norm of constitutional identity may not contradict the main principles of the European Union law.
4. Convergence of the constitutional identities – Establishing common criteria
As Constitutional identity need not be a factious notion, it seems that there is a reasonable consensus over the existence and gradual expansion of the principle. In the remaining part, we address the convergence of constitutional identities – not in the sense of conflating them, but by establishing a clear and foreseeable set of criteria. In our opinion, there are three such criteria. First, the Constitutional identity has to be established in the Constitution of a State; second, it must also reflect important values at stake in the Member state; and finally, third, it should be open to the scrutiny of the national and supranational courts – for example, there should be a remedy such as the preliminary ruling procedure.
First, if we take the notion of Constitutional identity seriously, it may not simply overlap with the public order considerations. Therefore, the national constitutional identity must derive from a legal source of a constitutional rank. It should be provided in the national constitution, or derive from the constitutional practice of the Member State. Also, it is usually complicated to change the Constitution, which will normally preclude an increase of cases of constitutional identity.
Second, constitutional identity must also reflect important values at stake in the Member State and not reflect the political expediency of the moment. The originality of the European project derives from the fact that each Member State is entitled not only to safeguard but also to develop its constitutional identity. For instance, in the last decade, there have been extensive discussions in Latvia about the core of the Constitution. In doctrine, it is recognised that there are constitutional values, firstly, existing in the consciousness of the people and, secondly, values that unite the nation.[33] Thus, it is recognised in Latvia that there are general constitutional values, such as the rule of law, protection of the national language, protection of the fundamental rights etc. These values allow the Republic of Latvia to exist as a nation. Thus, not everything provided under the Constitution would automatically or instantly become the national constitutional identity.
The third criteria requires that there exists a remedy in courts – national and supranational – to review the legality and the proportionality of the concrete measures implementing the constitutionally-recognised values. After all, the Court of Justice of the European Union has been very flexible towards recognising the concerns of constitutional identity in cases concerning economic freedoms. The Court of Justice of the European Union, examining the proportionality in Omega case, stated that ‘the provisions adopted are not excluded merely because one Member state has chosen a system of protection different from that adopted by another State’.[34] Although it was not stated in identical terms, it is undeniable that the Court of Justice of the European Union in principle accepted that the protection of the national language in the Cilēvičs e.a. judgment may be based on a system of protection which is different from that adopted by other Member States.[35]
This approach requires, however, that to some extent, the values protected by the national constitutional identity may be recognised as common values. In the Coman[36] judgment, the Court of Justice of the European Union recalled that the alleged constitutional identity ‘may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter [of Fundamental Rights of the European Union]’.[37] Moreover, the intensity of the scrutiny may be tighter in cases concerning equal treatment – such as difference of treatment on grounds of religion or belief.[38]
These criteria present several advantages. First of all, they allow each Member State to engage in a democratic debate and to choose the adequate level of protection for the most important values in a given society. Second, they also allow a degree of flexibility in the courts. The case-law of the Court of Justice of the European Union seems to indicate that the judicial scrutiny will be more permissive regarding economic freedoms, especially if the exercise of economic freedom is encroaching upon other fundamental rights. The control becomes tighter if the constitutional identity is at odds with the principle of equality; and finally, an alleged constitutional identity that is inconsistent with the fundamental rights may not be recognised. Last but not least, this approach allows the maintenance and development of the cooperation and the dialogue between the national and supranational courts.
[1] With the contribution of Mr Uldis Krastiņš, legal adviser of the Constitutional court and Mr Andrejs Stupins adviser of the President of the Constitutional court.
[2] Habermas, J., Sur l’Europe, Paris, Bayard, 2006.
[3] The first indent of the Charter of Fundamental Rights of the European Union’s preamble reads as follows: ‘The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values’.
[4] Constitutional identity should not inevitably be associated with so-called “Illiberal constitutionalism”, i.e., the construction of a particular constitutional identity, legally obstructing the implementation of EU obligations, see Drinóczi, T., Faraguna, P., “The Constitutional Identity of the EU as a Counterbalance for Unconstitutional Constitutional Identities of the Member States”, European Yearbook of Constitutional Law, 2022, available at: https://ssrn.com/abstract=4287559.
[5] So far, the Constitutional Court of Latvia has submitted preliminary questions and received the answer from the Court of Justice of the European Union in five unique cases.
[6] Article 4(2) TEU: ‘The Union shall respect [..] [the] national identities [of Member States]’; and Article 6(3) of the Treaty on European Union: ‘constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’.
[7] Judgment of 23 April 1986, Les Verts v Parliament, C-294/83, EU:C:1986:166, paragraph 23.
[8] It seems that the dynamics behind the goals of the European integration have always been blurred. See, for example, this confession by one of the founding fathers: ‘Vers quel aboutissement nous conduit cette nécessité, vers quel type d’Europe, je ne saurais le dire, car il n’est pas possible d’imaginer aujourd’hui les décisions qui pourront être prises dans le contexte de demain. […] Je n’ai jamais douté que ce processus nous mène un jour à des États-Unis d’Europe, mais je ne cherche pas à en imaginer aujourd’hui le cadre politique, si imprécis sont les mots à propos desquels on se dispute : confédération ou fédération. Ce que nous préparons, à travers l’action de la Communauté, n’a probablement pas de précédent.’ – Monnet, J., Mémoires, Paris, Fayard, 1976, pp. 615-616.
[9] Constitution of the Republic of Latvia, 15 February 1922, Article 4, first sentence: ‘The Latvian language is the official language in the Republic of Latvia’; and Article 104: ‘Everyone has the right to address submissions to State or local government institutions and to receive a materially responsive reply. Everyone has the right to receive a reply in the Latvian language’.
[10] See, “The Role of Constitutional Courts in the Globalised World of the 21st Century”, Proceedings of the 2018 Conference of the Constitutional Court of the Republic of Latvia – Riga: Constitutional Court of the Republic of Latvia, 2019, available at https://www.satv.tiesa.gov.lv/other/2019-ST-Referati-2018-atverumos.pdf
[11] Mounk, Y., The People vs Democracy, Harvard University Press, Harvard, 2019.
[12] For distinction between national constitutional identities and national unconstitutional identities, see once again Drinóczi, T., Faraguna, P., “The Constitutional Identity of the EU as a Counterbalance for Unconstitutional Constitutional Identities of the Member States”, European Yearbook of Constitutional Law, 2022, available at: https://ssrn.com/abstract=4287559.
[13] Martin, S., “L’identité de l’Etat dans l’Union européenne : entre ‘identité nationale’ et ‘identité constitutionnelle’”, Revue française de droit constitutionnel, Vol. 91, 2012/3, pp. 13-44.
[14] Judgment of 7 September 2022, Boriss Cilevičs and Others, C-391/20, EU:C:2022:638. See also, Judgment of the Latvian Constitutional Court of 9 February 2023, 2020-33-01.
[15] Kreindler, I.T., “Baltic area languages in the Soviet Union: a sociolinguistic perspective”, Journal of Baltic Studies, Vol. 19, No 1 (Spring 1988), p. 5.
[16] Judgment of the Italian Constitutional Court of 8 June 1984, 170/1984, ECLI:IT:COST:1984:170. In this decision the Court defined the relationship between the national and the EU legal orders as follows: ‘diritto comunitario e diritto interno: i due sistemi sono configurati come autonomi e distinti, ancorché coordinati, secondo la ripartizione di competenza stabilita e garantita dal Trattato’.
[17] Judgment of 14 October 2004, Omega, C-36/02, EU:C:2004:614, paragraph 33 et seq.
[18] Opinion of Advocate General Poiares Maduro, 8 October 2008, Michaniki, C-213/07, EU:C:2008:544, paragraphs 31 to 33.
[19] Judgment of 2 July 1996, Commission v Luxembourg, C-473/93, EU:C:1996:263, paragraph 35.
[20] Judgment of 12 May 2011, Runevič-Vardyn and Wardyn, C-391/09, EU:C:2011:291.
[21] Judgment of 22 December 2010, Sayn-Wittgenstein, C-208/09, EU:C:2010:806.
[22] Judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257.
[23] Judgment of the Latvian Constitutional Court of 17 January 2008, 2007-11-03, paragraph 24.2; Judgment of the Latvian Constitutional Court of 13 November 2018, 2018-18-01; paragraph 15.2.
[24] König, D., “The role of the German Federal Constitutional Court in dealing with cases of a supra or international nature”, “The Role of Constitutional Courts in the Globalised World of the 21st Century”, Proceedings of the 2018 Conference of the Constitutional Court of the Republic of Latvia – Riga: Constitutional Court of the Republic of Latvia, 2019, p. 164, available at https://www.satv.tiesa.gov.lv/other/2019-ST-Referati-2018-atverumos.pdf.
[25] Judgment of the Latvian Constitutional Court of 7 April 2009, 2008-35-01.
[26] Judgment of the German Federal Constitutional Court of 15 December 2015, 2 BvR 2735/14, ECLI:DE:BVerfG:2015:rs20151215.2bvr273514.
[27] Opinion of Advocate General Emiliou of 8 March 2022, Cilevičs e.a., C-391/20, EU:C:2022:166, point 75.
[28] Judgment of 7 September 2022, Cilevičs e.a., C-391/20, EU:C:2022:638.
[29] On this distinction see: Judgment of the Latvian Constitutional Court of 9 February 2023, 2020-33-01, paragraph 27.
[30] Judgment of 7 September 2022, Cilevičs e.a., C-391/20, EU:C:2022:638, paragraph 83; and Judgment of 12 May 2011, Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 78.
[31] Judgment of 7 September 2022, Cilevičs e.a., C-391/20, EU:C:2022:638, paragraph 84.
[32] Judgment of the Latvian Constitutional Court of 9 February 2023, 2020-33-01, paragraph 33.
[33] Opinion of Constitutional Law Commission convened by the President of Latvia, On the Constitutional Foundations and Inviolable Core of the State of Latvia, 2012, available at http://www.president.lv/images/modules/items/PDF/17092012_Viedoklis_2.pdf.
[34] Judgment of 14 October 2004, Omega, C-36/02, EU:C:2004:614, paragraph 38.
[35] Judgment of 7 September 2022, Boriss Cilevičs and Others, C-391/20, EU:C:2022:638, paragraph 82.
[36] Judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385.
[37] Ibid., paragraph 47. The Latvian Government made a statement in this case that on the assumption that a refusal to recognise marriages between persons of the same sex concluded in another Member state constitutes a restriction of Article 21 TFEU, such a restriction is justified on grounds of national identity, as referred to in Article 4(2) TEU. For the purposes of this article, the Coman case illustrates an example whereby the alleged constitutional identity did not meet the necessary criteria and thus was correctly dismissed.
[38] Judgment of 17 April 2018, Egenberger, C-414/16, EU:C:2018:257.