Article 4(2) of the Treaty on European Union creates a legal sanctuary for “national identities,” allowing member state courts to shield their constitutional cores from the primacy of EU law.
The Sovereignty Friction
The tension within the European project is a structural conflict of architecture. For the Union to function as a sovereign entity, it requires a political identity—a shared recognition of the EU as the ultimate source of legitimacy. Instead, the current system relies on an “administrative identity,” where the EU is viewed as a high-efficiency service provider for standards, trade, and grants.
This utility-based bond is fragile. As noted in The Federalist, the Union is attempting to build a political house without the identity that makes it inhabitable. This manifests as “sovereignty friction,” most visible in the legal traditions of the core powers. In Germany, Verfassungspatriotismus ties identity to the Basic Law, leading the Federal Constitutional Court to view certain EU acts as ultra vires. In France, a tradition of dirigisme ensures that federal expansion occurs only when it aligns with national strategic interests.
The result is a legal stalemate. While the European Court of Justice asserts the primacy of Union law, national courts use “constitutional identity” as a firewall. This gap persists not because the legislation is absent, but because the political will to transition from a union of states to a union of citizens remains locked within national frameworks. The architecture is ready. The permission is not.
The Constitutional Firewall
The structural block to a shared political identity is codified in Article 4(2) of the Treaty on European Union (TEU). This provision requires the Union to respect the “national identities” of its Member States, creating a legal sanctuary that national courts use to protect their constitutional cores from the primacy of EU law. According to analysis from the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, this notion of constitutional identity has become a central point of contention in the relationship between the European Court of Justice and national judiciaries.
The friction manifests as a conflict between two interpretations of legitimacy. The ECJ asserts a hierarchical primacy of Union law, while national courts maintain a right to review that primacy against their own fundamental principles. This is not a mere legal technicality; it is a structural barrier to federal expansion. The legal architecture is in place, but the constitutional permission is missing.
The Divergence of Core Powers
The resistance to a unified political identity varies according to the specific constitutional traditions of the EU’s primary drivers. In Germany, the concept of Verfassungspatriotismus—constitutional patriotism—ties national identity to the Basic Law. As detailed in Politics and Governance, this leads to a legalistic framework where EU acts perceived as contradicting the Basic Law are dismissed as ultra vires.
France operates from a different structural logic. Its tradition of dirigisme and strong national sovereignty leads to a “variable geometry” approach, where competencies are expanded only when they align with French strategic interests. This ensures that integration survives only as long as it serves the state. Between the German legal shield and the French strategic filter, the path to a shared sovereign identity is constricted. The states are coordinating, but they are not yet federating.
The Legacy of Historical Trauma
The identity divide is further complicated by the distinct historical trajectories of Central and Eastern Europe (CEE). For many CEE states, national identity is not an abstract preference but a hard-won achievement following liberation from Soviet-era domination. As noted by Global Politics, proponents of national priority argue that European identity is a secondary construct that cannot replace deep-rooted historical ties.
This creates a structural paradox: federalist pushes for a shared identity can be perceived in the East as a new form of external erasure or a “Brussels-led” imposition. This is exacerbated by an institutional failure to create a pluralistic political identity that incorporates these specific traumas. Instead, the Union has largely asked the East to assimilate into a Western-centric mold. The result is a Union that functions as a transactional arrangement rather than a political community. The trauma persists. The institutional response has been insufficient.
The Bottom-Up Transition
The legal stalemate over constitutional identity cannot be resolved by further treaty amendments alone, as such a path requires the very political consensus that the current friction prevents. Instead, the shift toward a sovereign European identity is emerging through practice. Youth-led initiatives and pan-European academic networks are normalizing a primary identity tied to shared values and lived experience, effectively bypassing national constitutional shields.
This represents a transition from a union of states to a union of citizens in practice, if not yet in law. The structural question is whether the institutional architecture can evolve fast enough to house this organic identity. If the Union cannot bridge the gap between the administrative reality of its citizens and the constitutional rigidity of its member states, it risks remaining a permanent assembly of interests rather than a sovereign political body. The choice is between a legalistic stalemate and a functional federation.