Equality and Non-Discrimination as an Integral Part of the EU Constitutional Identity

Abstract

The purpose of this article is to discuss whether equality and non-discrimination form part of the EU constitutional identity. After noting that the point of departure of the article is the theory of constitutionalism beyond the State, as well as the assumption that the EU and EU law are constitutional in nature, the author proceeds with the debate on the antecedents of the EU constitutional identity. After inquiring whether a Member State constitutional identity is the same as national identity, the author argues that, independently of the response to this question, both concepts perform the function of a brake on the absolute primacy of EU law over domestic law, as well as on the transfer of powers, which calls into question the very statehood of the Member State. This article argues that, the EU constitutional identity, in spite of its indeterminacy, vagueness and complexity, comprises common origins, common values, a common destiny and common features that differentiate the EU from other entities. Although the common origins mainly emerged from the negation of Nazism and Soviet communism, and its common destiny is rather uncertain, there is no doubt that the EU has an axiological basis and that it has certain characteristics that differentiate it from the rest of the world. One of these features concerns the respect for equality and non-discrimination as well as the respect and promotion of fundamental rights. The article concludes that equality and non-discrimination are an integral part of the EU’s constitutional identity to the precise extent they are simultaneously values and objectives of the EU.

I would like to thank Prof. Thomas Giegerich, Jean Monnet Chair, and his team for having invited me to the symposium on the European Union as Protector and Promoter of Equality.