À la recherche d’une cohérence perdue – Possible Arguments for the Non-application of EU Law in Member States

The European Union is an international organization which has a broad scope of competences that have been transferred to it by its Member States in the founding Treaties. The object of this text is to identify arguments raised, or that potentially might be raised, by national Constitutional Courts (and in the future possibly by other actors as well) to exclude in certain instances the application of EU law or EU jurisprudence in the territory of a particular Member State. The three main reasons for such an exclusion might be: 1) that an action of the EU is perceived as being ultra vires; 2) that an action of the EU infringes on national identity; and 3) that an action of the EU infringes on constitutional identity. The ultra vires argument has only recently appeared in the jurisprudence of some constitutional courts, whereas the constitutional identity argument has been present since the 1970s. The national identity argument is based on a notion protected, since 1993, by the Treaty establishing the European Union. All three of these arguments are to a certain extent intermingled and their use by national actors for excluding the application of EU law is fraught with uncertainty.