National identity versus European identity: from the acquis communautaire to the European Union’s Rule of law

by Ezio PERILLO (former Judge of the EU General Court)

The acquis is the EU identity, but not only

No longer in fashion, the principle of the acquis communautaire is still an essential part of the Union’s legal order. It encompasses the entire EU legal legacy on which this order has been formed since its creation, including the judgments of the Court. The acquis contains, above all, the five cardinal principles of the European legal order, those ruled by the Van Gend & Loos and Costa/Enel famous judgments. The autonomy, the direct effect and primacy of its law, its uniform interpretation and, finally, its direct and effective judicial protection.  It was ahead of its time in the ’60!

This arsenal of European principles, rules and jurisprudence, constitutes, nowadays, the very identity of the European Union.

Already provided by Article 3 of the Treaty of Amsterdam (1999), the acquis is at present inserted, although no longer with its concise French formula, in Article 13 TEU, which states: “the Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions“.  These same obligations are also incumbent on the Member States.  Article 2 of the last act of accession to the European Union, the Croatian one (2013), provides, along the same lines as the previous ones, that “from the date of accession, the provisions of the original Treaties and of the acts adopted by the institutions before accession [including the judgments of the Court of Justice] shall be binding on Croatia and shall apply in that State to the conditions laid down in those Treaties and in this Act”.

Therefore, in order to join and then legitimately stay in the Union, every Member State, old or new, must accept and comply with the binding nature of the acquis.

The acquis is also part of each Member State’s identity

Since its accession to the Union, each Member State has changed, treaty after treaty, its own legal profile, i.e. its constitutional identity, having unanimously assumed, in their legal order, the Treaties provisions, the principles and rules of the acquis communautaire.  Let’s consider, for instance, that national citizens are also, by law, European citizens. It follows that the national identity of each Member State is, nowadays, not only that inherent to their constitutional and political structures (see Art.4 TEU), but also, to a large extent, that deriving from their European affiliation.

Ultimately, the acquis communautaire constitutes, on the one hand, the identity of the European Union, and also, on the other hand, the identity of each Member State, although only in part.  After Lisbon, however, this famous French formula has disappeared from the Treaties provisions, even if it remains in those of the EU accession acts. I propose therefore to rename it here as the “European Rule of law” (or the “Rule of law of the European Union”).[1]

The European Rule of law

The reason of this name is quite simple. L’État de droit, das Rechtsstaat and the Rule of law, even if they are notions not exactly similar to one another, all refer to a national State dimension and not to a supranational or international dimension. Their main objectives are to guide every public authority towards a constitutional and correct exercise of their prerogatives and to prevent them from arbitrarily acting in the name of an alleged “sovereign” legal status.

Thus, when in a legal order, such as that of the European Union, its institutions have been charged, by the Masters of the Treaties, to “serve its interests, those of its citizens and those of the Member States”, this legal system must also have its own Rule of law, like any other legal order. In this perspective, what would have been called the acquis communautaire in the past, has now become the European Rule of law.

A principle or a value?

In a supranational order such as the European one, the values referred to in Article 2 TEU are not values belonging to the Union since its origin, simply because they have been “attributed” thereto, as a legal heritage, by the Masters of the Treaties.

Indeed, for the founding States of the Union, these values are irreplaceable, legal assets and guarantees too, strenuously acquired by their citizens through several, terrible wars. Values that are, today, solemnly engraved in their Constitutions or Fundamental Laws, also in those of the others Member States which joined the Union later. For these and other reasons, the Masters of the Treaties wanted the Union to be also founded on these values[2], which its institutions, like the national ones, must accept and promote (see Article 13 TEU, cited above).

That said, these universal values are not, legally speaking, the same thing as the principles of EU law, although the Masters of the Treaties use them without distinction, sometimes as values sometimes as principles (see, for instance, the second and forth whereas of the Preamble to the Treaties, or Article 21 TUE where it is stated that “ the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights …” ).

By the way, according to the first whereas of the preamble to the EU Charter, the Union is, on the one hand, “founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”, and is, on the other, “based on the principles of democracy and the rule of law”.

Therefore, values do found orders because they are fundamental legal assets that are not available to any public power, be it royal, republican, federal or European. Legal principles, instead, do ensure a legal basis to these orders, as they guide the public institutions’ actions and protect the citizens from any kind of arbitrary use of the State’s prerogatives.

But, above all, the difference between values and principles resides in how to legally control their compliance. As provided for in Article 7 TEU, breaches of the values referred to in Article 2 TEU can be determined only by the European Council, and the Council may, consequently, suspend certain of the European rights of the State concerned, including its voting rights. Therefore, the Court of Justice has no jurisdiction to review, on the merits, the legality of these decisions. Indeed, pursuant to Article 269 TFEU, the Court, in these cases, has jurisdiction solely to the extent that it shall check compliance with the procedural requirements provided for by the aforementioned Article 7 TFEU.  Ultimately, in the EU legal order, control over compliance with the founding values of the Union is a political prerogative, while supervising compliance with the EU legal principles is, needless to say, a jurisdictional remit.

Thus, in this legal frame, the ‘European Rule of law’ is, like its prior acquis communautaire, a binding principle of EU law, also for the Member States, and it is up to the Court of Justice to ensure its due and full legal control.  

National identity versus European identity: quid juris?

In its judgment of 22 February 2022, C-430/21 (Court of Appeal of Craiova, Rumania) the Court of justice ruled that if a Constitutional Court considers that an EU provision infringes its country’s national identity, it must stay the proceedings and make a preliminary reference to the Court of justice. Indeed, also in relation to article 4, §2, TUE, this Court has exclusive jurisdiction to declare an EU act invalid for non-compliance with one’s national identity. An EU act, by the way, that should be declared invalid only in the Member State concerned, in a sort of limited EU invalidity.

Still, in a National versus European identity case, the Court of Justice should be bound – I guess – by the description given by the referring Constitutional court as to the national identity at stake. The margins of appreciation become here very narrow.

Let’s then consider a different approach: in such cases, which of the two respective obligations comes first? Requiring the Union to comply with national identity or imposing to the country concerned to adhere to the EU’s identity?  

Well, could one argue that in order to claim the infringement of its own national identity, the country involved should first prove that it has fully respected EU’s identity, i.e. the European Rule of law, which has obviously priority over national law, i.e. over its internal Rule of law?  And if this is the case, shouldn’t the national jurisdiction, ruling on the dispute, disapply the internal provisions conflicting with the European Rule of law?

The answer? The answer is not blowing in the wind and can be given by the Court.


[1] In similar terms, see, Olivier Audéoud, “ L’acquis communautaire, du mythe à la pratique, in, Revue d’études comparatives Est-Ouest, 2002, n. 33-3,  pp. 67-77.

[2] Article 2 TEU so provides. “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights… These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.

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