Who speaks on our behalf? National identity and constitutional adjudication in the European Union

With the growing influence of the Court of Justice of the European Union ("CJEU") in sectors traditionally seen as part of the core of Member States’ sovereignty, national constitutional courts have increasingly invoked national identity to justify deviations from the primacy of EU law. This tension is particularly pronounced in matters tied to the fundamental competencies of the state which are intrinsic to national identity and the constitutional legitimacy of member states. This paper explores how national identity is deployed by national constitutional courts to resist the primacy of EU law. We take the Portuguese experience as our starting point, examining the dissenting opinion of Justice Joana Fernandes Costa in the latest ruling of the Portuguese Constitutional Court on data retention, in which she raises concerns over the extent to which the CJEU case-law on the matter that allows EU law to override national security core concerns, such as ensuring security and peace. The main argument raised is that, while national identity claims could serve as a basis for national courts to resist the primacy of EU law, they must also take into consideration the agreement the peoples of Europe reached when joining the EU.