Table of Contents: I. The grey zone of art. 4(2) TEU. – II. Highlighting art. 4(2) TEU variability: the CJEU’s case-law on the temporary relocation mechanism. – III. Exploring the concept of essential state functions. – III.1 Art. 4(2) TEU, national identities and essential state functions: two clauses, two separate concepts? – III.2. Essential state functions as a part of constitutional identity. – III.3. The CJEU’s approach to essential state functions. – IV. Essential state functions: pushing the concept further – IV.1. Understanding national identity. – IV.2. Essential state functions: wider scope brings risks. – IV.3. Lessons learnt from Commission v Poland, Hungary and Czech Republic. – V. Conclusion.
Abstract: Art. 4(2) TEU stipulating the EU’s respect to Member States’ national identities seems to be the topic of the day in EU law discussions. However, another part of the provision, obliging the EU to respect the Member States’ essential state functions, has received less attention due to which it lacks clarity and is treated ambiguously. This Article attempts to address that gap. It suggests that while the essential state function clause is textually separate from the national identity clause, the aim and function of the clause, as well as the way in which some constitutional courts treat it, evidences that essential state functions are not strictly separated from national identity. Using the examples of the CJEU’s judgment on the temporary relocation mechanism, the Article argues that some Member States’ concerns vis-à-vis the EU could be based on either essential state functions or national identity. In such a situation, essential state functions might seem attractive because of their perceived more objective appearance than national identity. However, the given example also shows that even essential state functions could cover arguments problematic from the perspective of common EU values (art. 2 TEU).
Keywords: essential state functions – national identity – art. 4(2) TEU – temporary relocation mechanism – migration crisis – Court of Justice of the European Union.
* PhD student, Masaryk University, firstname.lastname@example.org.