National Identity Clause

National Identity Clause is a legal principle enshrined in article 4(2) of the Treaty on European Union. Its original purpose can be linked to the protection of cultural identity, apparently threatened by the free movement of services and goods in the cultural domain. It was supposed to prevent EU competence creep in the areas belonging to complementary competencies. Today it is most typically associated with limits to European integration and protection of core competences of the nation states within the EU.

The issue of national identity protection and article 4(2) TEU are highly contentious and debated both in legal scholarship, judicial practice, and political discourse. The most salient cleavages run across themes like: content and scope, implication for the principle of primacy of EU law and, since the second half of the 2010s - its potential to be abused in the context of the rule of law crisis.

Origins

The national identity clause first occurred in the Treaty of Maastricht in article F which stated that: “The Union shall respect; the national identities of its Member States, whose systems of government are founded on the principles of democracy”. It was slightly expanded in the Treaty of Amsterdam, in article 6. Many analysts agree that the inclusion of this clause was linked to the balance of power and skepticism that Treaty of Maastricht would eventually lead to the creation of the European Super-State. The inclusion of article F was supposed to guarantee that crucial state competences will remain intact. Initially, the national identity clause did not enjoy substantial scholarly nor juridical attention, with some even claiming that it was nothing more than a political statement.