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National Identity in EU Law$
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Elke Cloots

Print publication date: 2015

Print ISBN-13: 9780198733768

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198733768.001.0001

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National Identity and Secondary EU Law

National Identity and Secondary EU Law

(p.318) 10 National Identity and Secondary EU Law
National Identity in EU Law


Oxford University Press

States invoke their national identities not only against Treaty provisions, but also against EU legislation. The European Court of Justice then needs to assess whether identity respect warrants a distinct domestic interpretation of the EU Act, or even a national limitation of the requirements it imposes. This type of case is discussed in the final chapter. It deserves to be treated separately, as it raises questions not only about the optimal mix of accommodation and integration, but also about the proper relationship between the European Court of Justice and the EU legislature. By analogy with the scheme advanced in Chapters 6 to 9, the premise underlying this chapter is that there are good reasons for constraining the Court’s discretion in construing EU legislation and monitoring domestic interpretations of EU legislation. Drawing on insights from US legal scholarship, it is argued that canons of statutory interpretation, such as deference canons, could fulfil such a discretion-constraining role.

Keywords:   national identity, EU legislation, separation of powers, rule-like decision-making, canons of interpretation, deference, judicial discretion

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