Constitutional conflict is an immanent feature of EU law: from the limits to mutual trust, across the clash between data protection and national security, the meaning of the rule of law, to the definition of monetary policy, it seems ubiquitous. Under conditions of high judicialization, as is the case in the European Union, these conflicts are bound to materialise in judicial interactions between the Court of Justice and typically, although not exclusively, national courts with the power of constitutional review. Arguably as old as EU law itself, constitutional conflict consistently leaves unsettled any final interpretation of the principle of the primacy of EU law. At the same time, we can observe different dynamics taking shape over time. This chapter of “Les rapports entre les juges constitutionnels nationaux et la CJUE/National Constitutional Judges and the CJEU” is concerned with one such change: the defensive move of the Court of Justice towards using arguments based on constitutional identity, in response to the increased use of such claims by national constitutional courts. Ana Bobić posits that we may observe a new dynamic in the Court of Justice’s responses to constitutional conflict. The Court of Justice appears to be mimicking national dynamics in that it increasingly refers to the EU’s constitutional identity as a shield against both identity and ultra vires claims made by national courts. This, Bobić argues, grants the EU constitutional order a novel character of unamendability and changes the traditional meaning of the principle of conferral.
Bobić, A.: “Constitutional conflict and the EU ’s new constitutional identity” In: Anastasia Iliopoulou-Penot and Francesco Martucci (eds), Les rapports entre les juges constitutionnels nationaux et la CJUE/National Constitutional Judges and the CJEU (Bruylant 2025)