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Belgian Constitutional Court Adopts National Identity Discourse

In its judgment no. 62/2016, the Belgian Constitutional Court, widely regarded as one of the most Europhile constitutional courts in the EU, has unexpectedly added itself to the list of constitutional courts which do not fully accept the European Court of Justice’s point of view concerning the primacy of EU law over national constitutions. In the present case note, we aim to contextualise this judgment and to indicate its consequences for the full effect of EU law within the Belgian legal order. This judgment seems to follow the Bundesverfassungsgericht’s example by setting some limits to the primacy of EU law over the Constitution. As the limit related to the Belgian national identity was articulated more explicitly than the one related to ultra vires review, and as it is not clear whether the limit concerning the basic values of constitutional rights protection can stand on its own or whether it is a part of identity review, we will mainly focus on the former limit. In the first section, we depict the judgment itself, which stands out both because it denied standing to a wide range of petitioners, and because it developed criteria limiting the primacy of EU law over the Belgian Constitution. As the judgment itself is very succinct on this important novelty, the subsequent sections aim to provide some context and suggest answers to several questions left open by the Court. The second section explains the Constitutional Court’s case law applying EU law, indicating that the Court understands its role very well in a