Issues of Constitutional Identity in a Candidate State: Bosnia and Herzegovina

Abstract

The concept of constitutional identity has been a focal point of extensive scholarly debate in legal and constitutional theory in recent decades. While elements of this concept can be traced back to antiquity, its more developed conceptualisation emerged in German legal thought during the Weimar Republic. In recent years, the notion of constitutional identity has gained prominence in the context of the relationship between the European Union (EU) and its Member States. The constitutional courts of EU Member States have increasingly invoked the concept of constitutional identity – whose protection is enshrined in the Lisbon Treaty, which “constitutionalized” national identity – as a means of delineating “red lines” against the implementation of certain EU measures and legal acts (such invocations have at times faced criticism, with opponents arguing that they reflect illiberal and undemocratic tendencies). Conversely, the European Court of Justice (ECJ) has progressively developed the concept of EU constitutional identity, using it to challenge specific legal provisions and measures adopted by Member States. Both interpretations of constitutional identity have the potential to play a significant role in the EU accession process. Pre-accession conditionality imposed on candidate states is often designed to safeguard values that are closely associated with EU constitutional identity. At the same time, invoking the constitutional identity of a candidate country may serve as a legal basis for resisting the implementation of these conditions. These dual dimensions are particularly significant in Bosnia and Herzegovina’s (BiH) EU accession process. The priorities outlined in the European Commission’s Opinion require amendments to the BiH constitution, which may be perceived as conflicting with the country’s constitutional identity. This paper examines the constitutional reforms that may be required for BiH’s EU accession, as articulated both explicitly and implicitly in the European Commission’s conditions, while analysing the legal and political controversies surrounding their implementation.