Article 4(2) TEU: A Blow to the Supremacy of Union Law?

Author:Neil Murphy
Position:BA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of King's Inns
© 2017 Neil Murphy and Dublin University Law Society
In his 1996 article on the limits of European Community powers,
Dashwood considered why the European Union was not seeing the levels
of integration some had hoped would occur. Dashwood reasoned as
follows: ‘[T]here are too many people who suspect the [Union] of being a
Triffid, quietly gaining strength in order to gobble up everything that
gives substance to our sense of having separate national identities’.
statement is as true today as it was in 1996.
The European Union is at a
crossroads in terms of its legal, political, and economic structures, not to
mention the fact that a Member State has voted to leave the Union.
Although the reasons for ‘Brexit’ lie beyond the scope of this piece, it can
be agreed that a number of the concerns raised by the ‘Leave’ campaign
centred on what Dashwood described in his article. The fear that the UK
had no control over its borders, that as a State it was being ruled and
controlled by supranational bodies in Brussels and, critically, that the UK
was becoming less like the UK and more like a federal state of Europe, all
played on the minds of voters as they went to the ballot boxes in late
June of 2016.
On the face of it, Article 4(2) TEU provides scope to get around
these problems. It is an express provision within an EU Treaty that
ensures national identity is to be respected as a matter of EU law. It is, as
was its predecessor, the pre-Lisbon Article 6(3) TEU, a vital component of
* BA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of
King’s Inns. The author would like to thank Dr Tobias Lock, University of Edinburgh Law
School, and Mr Paul McDonagh-Forde, Sch., for their comments on earlier drafts of this
article. Any errors or omissions are the author’s own.
Alan Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 113, 113.
Nigel Farage MEP, the main protagonist of the leave campaign, cited wanting to ‘take back
control’ as a reason for voting to leave the European Union. See also Nigel Farage, ‘Why
you should vote for Brexit this Thursday’ The Independent (London, June 2016).
The United Kingdom has not yet triggered Article 50 TEU, which is required to formally
exit the European Union. When the UK government will trigger Article 50 TEU is still
largely unknown.
2017] Article 4(2) TEU
EU law, as it serves to demonstrate that the EU is not interested in
‘Europeanising’ the Member States. The differences between the Member
States, despite their cooperation over the years, is what some argue has
made the EU a great success story.
There are still grave concerns from
some quarters, however, about the role of the EU, and whether the EU
has the best interests of all Member States at heart, as opposed to the
interests of a certain few.
The purpose of this article is to examine
whether Article 4(2) TEU can, in some instances, ensure that EU law is
not the supreme law in the jurisdiction, whether the provision is a red
herring designed to allay the fears of Member States with no real
meaning attached to it, or if it is actually something else entirely.
The article is set out in three distinct parts. Firstly, the historical
background to Article 4(2) TEU will be outlined and discussed. It is of
significance to detail how Article 4(2) TEU came into existence, and what
considerations were discussed at the time of its introduction. Secondly,
the case law relating to Article 4(2) TEU and its predecessors will be
critiqued. Thirdly, in order to conclusively answer the question asked by
this article, the future of Article 4(2) TEU, the effect it could have on
integration and dialogue between Member States of the EU, and the
potential effect on the Union generally, will be discussed.
I. Article 4(2) TEU: The Historical Background
Article 4(2) was introduced as a replacement to the pre-Lisbon Article
6(3), and was based on a provision in the EU Constitutional Treaty that
was rejected by the Dutch and French electorates.
It is generally
acknowledged that the EU is under an obligation to respect the identities
of the Member States, both political and constitutional.
The various
approaches to European integration are ‘identity centric’. This means
that EU law demonstrates grounds of contestability on constitutional
issues, whilst also offering the capability to narrow the scope of the
application of EU secondary legislation, as well as the focus of Treaty
Giuseppe Mancini, ‘Europe: The case for statehood’ (1998) 4 ELJ 35.
Jo Eric Khushal Murkens, ‘”We want our Identity Back”: The Revival of National
Sovereignty in the German Federal Constitutional Court’s Decision on the Lisbon Treaty’
(2010) PL 530, 535.
Article 6(3) TEU (pre-Lisbon) read ‘The Union shall respect the national identities of its
Member States, whose systems of government are founded on the principles of democracy.’
The express provision can be found in Article 4(2) TEU.

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