Shaping the Doctrine of European and Constitutional Identity into the Context of the European Integration of Ukraine

Abstract

The concept of constitutional identity is a fundamental idea that was developed into the jurisprudence of the Federal Constitutional Court of Germany and other European constitutional courts. It reflects the trends that have developed into the national constitutional law of the EU Member States as a result of determining the role and significance of national constitutions in the process of European integration. As a rule, national constitutions have the highest legal force within national legal systems, which in turn is closely related to the principle of state sovereignty and the priority of the constituent power of the people. The modern concept of constitutional identity defines the boundaries of state sovereignty and the need for national constitutional control over the state powers delegated to European institutions. In addition, national European constitutions have their own special nature, core and eternal values that cannot be replaced or abolished even in the process of constitutional changes. Fundamental rights and freedoms also retain their identity, their essential content, which must be protected from laws, politicians and European institutions by CJEU and national judiciary (constitutional courts). Ukraine not only announced its desire to join the EU, but also established in the Preamble to the Constitution its European geopolitical choice and the European identity of the Ukrainian people. Negotiations on joining the EU will soon begin, thus the issue of the exact meaning of both the conceptions of constitutional and European identities for the doctrinal and practical needs will soon surface. This paper aims to analyse constitutional changes to the Constitution of Ukraine on the European and Euro-Atlantic choice of Ukraine from the perspective of European and comparative constitutional law, the meaning and content of the concepts of European and constitutional identity as developed in the European primary legal act and rich constitutional jurisprudence of the national constitutional courts, in particular the German FCC (German Federal Constitutional Court), developed from the application of national constitutions, the role of the Preamble and its normative content, and the way the constitutional identity can be protected within the process of constitutional changes. This paper provides a deep research of the various scholarly opinions on the constitutional identity. It comprises seven sections, each addressing some facets of the European and constitutional identity including an introduction and a conclusion: (1) Constitutional changes regarding Ukraine’s European choice and the European identity of the Ukrainian people (2) An idea and concept of constitutional and European identity (3) Constitutional identity concept in the Ukrainian and foreign literature (4) the German concept of constitutional identity as developed by the Federal Constitutional Court of Germany (5) Constitutional identity in the jurisprudence of other European constitutional courts (6) Preamble to the Constitution – the core of constitutional identity (7) Protection of constitutional identity in the process of amending the Constitution.