Use, misuse and abuse of constitutional identity in Europe

Constitutional identity became popular not only in the conference rooms of constitutional lawyers, but also in political kitchens where ideologies, discourses and metaphors are being made. At first sight national constitutional identity seems eligible as a counter-concept to the huge wave of global constitutionalism. However, the national movements for constitutional identity differ in democracies and countries following the new authoritarian urge. // After having shown how constitutional identity may be created and coded, the paper offers examples of the uses, misuses, and abuses of the concept by various EU Member States. Even though controversial, the French and German cases are discussed as legitimate uses of the concept, while the paper argues that the Bulgarian and Romanian apex courts misuse and the Hungarian and Polish ones straightforwardly abuse it. The 2022 European Court of Justice judgment on the Conditionality Regulation can be understood as a counterclaim, stating that EU identity trumps national identity if the latter goes against the common values such as the Rule of Law.