We are pleased to share this review of Elke Cloots' book National Identity in EU Law, published earlier this year by Oxford University Press, from network member Pietro Faraguna (NYU & Trieste).
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In an era in which the dominant narrative is that of an increasingly interconnected
world, Europe seems to be in the grip of a strong counter-narrative, with a call for nations and nationalism growing steadily over the last twenty-five
years. After the fall of the Berlin Wall, Europe’s borders were redrawn along increasingly
ethnic lines, with the collapse of the last multinational States within the
core of Europe (Czech and Slovak Republics), at its borders (Yugoslavia) or beyond
(USSR). A massive amount of literature in historical, political and sociological
science has focused on this phenomenon in recent years, but it has been
relatively neglected in legal scholarship. In European Union (EU) scholarship in
particular, many authors have preferred to focus on the challenges of a
post-national order, including the implications of the Member States’ surrender
of sovereignty and the gradual erosion of distinctively national claims. Elke
Cloots’ book on “National Identity in EU law” aims to fill this gap in the EU
law literature.
Cloots’ book is divided into two main sections. The first section is
primarily concerned with a theoretical analysis of the notion of national
identity in EU law, and adopts an innovative perspective. The author devotes
her attention not only to the classic legal dimension of the obligations
deriving from Art. 4(2) of the Treaty on the European Union (TEU), but she investigates
also a moral dimension of the duty to respect Member States’ national
identities. On Cloots’ account, thus, the legal obligation to respect the
Member States’ national identities in Art. 4(2) not only serves valuable
purposes: it also reflects a moral claim to protection in a multinational
polity like the EU. Cloots convincingly demonstrates the compatibility of Art.
4(2) with both liberal nationalism and European cosmopolitanism.
In the second section, the author adopts a more traditional doctrinal
approach, investigating the approach of the Court of Justice of the European
Union (CJEU) to the legal duty to respect national identity and investigating
the trade-offs that this approach implies. Her view is that the CJEU should
attempt to reconcile the apparently incompatible Treaty approaches to national
plurality within the EU (integration v. accommodation), rather than preferring one
over the other. This part of the book highlights and explores the variety of
the decision-making methods that are available to address conflicts between
accommodation and integration, and identifies judicial doctrines that may help
the CJEU structure these trade-offs in the optimal way. She offers strong
grounds to prefer a rule-based style of decision-making to a standard-based one
in cases involving conflicts between Treaty provisions and claims based on
national identity.
The book’s core conclusion is that the CJEU lacks a principled and
coherent view of the position national identity should occupy in EU law. This
thesis is structured around five propositions: a lack of transparency of the CJEU
case-law; a limited volume of case law on Art. 4(2) TEU; the qualitatively underdevelopment
of the case law; significant inconsistencies, ambiguities, and contradictions
in the Court’s approach; and, finally, the absence of any reference to national
identity in cases where the notion could play a central role.
Overall, Cloots’ book offers a comprehensive overview of a complex and
obscure notion, drawing deeply upon the case law of the Member States’ supreme
and constitutional courts and offering a valuable and up-to-date account of the
CJEU’s case law. Her distinctive,
thoughtful conclusions and sustained analytical attention to the CJEU’s practice
make this book a valuable contribution to the effort to improve the legal
investigation of the recent resuscitation of national identity claims in the EU.
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