According to Article 4 paragraph 2 of the Treaty on the European Union ‘[t]he Union shall respect the equality of Member States before the Treaties as well as their national identities (-).’ In recent years this EU provision has been exploited by authoritarian populists to question supranational loyalty. As Giuseppe Martinico has explained populists are convinced that they hold a superior vision of what it means to be a true citizen of their nation. They frequently play with identity politics to fuel populist sentiments. National identity is now being used as a shield to keep away ‘foreign law’ from the courts, and as a sword to mute the judiciary. 

A sad reality is that Polish judges at this moment are being suspended by the new Disciplinary Chamber of the Polish Supreme Court for applying international and European law. No need to say that case-law from both European courts (ECtHR and ECJ) touching on traditional family values are looked on with suspicion by the Polish government. The Disciplinary Chamber, directly answering to the nationalist PiS party, was set up to discipline Polish judges. In Poland a mere reference for a preliminary ruling to the ECJ can now be considered collaboration with the enemy. This is a situation the framers of the EU may never thought possible. 

I had the pleasure to take part in the Conference: “Tradition, Constitution and European Integration”, organized by the Institute for Legal Studies in Budapest from 23-24 September. Earlier that week I happened to join the 30th anniversary of the Polish judge’s association IUSTITIA in Gdansk. My ‘rule of law-backsliding’-tour gave me the opportunity to observe both judges and constitutional law academics debating identity politics.

The Hungarian conference was a thorough debate on constitutional identity, both from some Member States past and present and the future of Europe. It confronted very different identity concepts between national constitutional courts and between the national level and the European Court of Justice. Also the danger of Member States taking refuge in national identity concepts was pointed out. Armin von Bogdandy reminded the audience that Augusto Pinochet’s authoritarian regime in the 1970s began with the General’s writings on national identity.

As the week progressed it occurred to me that Kaciensky’s brutal attempts to mute Polish judges – in flagrant violation of human rights and deliberately visible to the world – seem different from the Orbán style of populism, that rather seeks to reach its goals within a framework of legal provisions, making it appear a civilised debate within the boundaries of the rule of law. Which is very effective since no sensible person would oppose to a reasonable debate based on arguments. 

Populism 2.0 is smarter than its previous version and maybe more vicious. Could scholars get trapped in a nationalist paradigm and unintendedly and unwantedly help legitimize the legalisingof a concept (‘national identity’) for which there should maybe be no place in law? I may also have been lured in this trap by accommodating arguments for an orderly and fruitful debate between national courts and the European Court of Justice on identity issues. I argued at the conference that the European Court of Justice should take up its role as leader of the European judicial community and provide national judges with better reasoned judgments that take the wind out of the sails of populism. Should my first message not have been that the last thing we want in the EU is ‘an orderly debate’ about identity politics between courts, because it makes national identity ideas salonfähig?

Although I am still convinced that I have some point here (insert smiley) I obviously lost this battle from the legal experts present in Budapest. One way or the other academia have a role to play. Whether it is in guiding legal development by providing society and the courts with theoretical insights or by exposing false nationalist claims. 

Thanks to the European Court of Justice the identity clause in Article 4(2) EU is still living a marginal life in the periphery of EU law. Successful claims must be distinctive, substantive and fundamentally entrenched in a Member States history. More importantly national identity claims can never outweigh fundamental rights of individuals in the EU. So Article 4(2) will not come to the rescue of the Polish government, claiming that LGBT free zones are crucial to protect traditional Polish values. 

Probably Article 4(2) serves at best as an instrument to measure populist temperature in the member states. But will populists 2.0 buy this? I think not, which is why in my opinion the concept of national identity (inserted by the Maastricht Treaty) should not have been introduced in the first place. 

My roundtrip left me with a distinct feeling of uneasiness. Which is good because that’s what education and travelling must do. The backsliding of the rule of law in Europe has many faces. It calls on all of us to stay vigilant and closely scrutinise further developments.


Marc de Werd is senior justice at the Amsterdam Court of Appeal, professor of European court administration at the University of Amsterdam (ACLPA) and the Dutch representative to the Consultative Council of European Judges (CCJE) at the Council of Europe.