Sameness and selfhood: The efficiency of constitutional identities in EU law

This article enquires into the formal dimension of constitutional identity by focusing not on what it consists of but on how it is expressed in the different discursive practices developed by constitutional courts. Contrasting constitutional identity as sameness and constitutional identity as selfhood shows that domestic courts can favour either a substantive determination of core constitutional features or a performative approach where the reflexive ability to define oneself prevails. Such a choice conditions the judicial strategies developed in the interactions with the Court of Justice, and their effectiveness. From this perspective, the accommodation in EU law, in light of the respect for Member States' national identity affirmed in Article 4(2) TEU, of these domestic identity claims rooted in the supremacy of the Constitution, depends less on what is asked for than on how it is asked for.