Federal Identities in European Union Law

European Union law obliges the European Union to respect Member States national identity. This national identity is constituted by a Member States fundamental political and constitutional structures. The respect for their national identity enables Member States to assert some national specificities vis-à-vis the EU institutions, for instance when it comes to the question of whether national law is compatible with the fundamental freedoms of the EU. This book examines the extent to which the federal organization of some member states - Belgium, Austria, Germany - can be classified as such a national specificity and what consequences this entails. To this end, the book first analyzes in detail what standards Union law sets for the recognition of national particularities as protected national identities. The three selected federal legal systems are then examined on the basis of this standard. This requires a detailed analysis of the respective constitutional law. Through this examination, the book offers a variety of new insights into constitutional aspects of federal organisation. For Austria, for example, the book examines in depth which constitutional elements of the federal state can be classified as fundamental principles of the Austrian Constitution and thus may only be amended after a referendum has been held. The findings obtained on the three federal legal systems are then connected to Union law. A particularly relevant topic is that of federal diversity. Federal states are characterized by the fact that they do not have one single legislator, but a plurality of lawmakers. In Austria, these include the federal legislator (Nationalrat and Bundesrat) and the nine state legislators (Landtage). This can lead to very similar matters being regulated differently within the federal state: What is permitted in one state is prohibited in the neighboring state. Because federalism is one of the basic constitutional decisions, this is not considered to violate the constitutional principle of equality. From the perspective of Union law, this diversity of legislation in federal states is interesting because, despite its internal structuring into Länder, the federal state is regularly treated as a unitary subject by the institutions of the EU. The Republic of Austria must therefore answer to the European Court of Justice, even if the legality of a state law is in question. However, the various guarantees of equality in Union law must also be understood as permitting different regulations of the same matter in a federal state, due to the obligation to respect national peculiarities that qualify as national identity.

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