Exploring the Concept of Essential State Functions on the Basis of the CJEU’s Decision on the Temporary Relocation Mechanism

• Terezie Boková ^[1]
  1. [1] Masaryk University

     Masaryk University

     Chequia

     
• Localización: European papers: a journal on law and integration, ISSN-e 2499-8249, Vol. 7, Nº. 2, 2022, págs. 773-797
• Idioma: inglés
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• Resumen

  • Art. 4(2) TEU stipulating the EU’s respect to Member States’ national identities seems to be the topic of the day in EU law discussions. However, another part of the provision, obliging the EU to respect the Member States’ essential state functions, has received less attention due to which it lacks clarity and is treated ambiguously. This Article attempts to address that gap. It suggests that while the essential state function clause is textually separate from the national identity clause, the aim and function of the clause, as well as the way in which some constitutional courts treat it, evidences that essential state functions are not strictly separated from national identity. Using the examples of the CJEU’s judgment on the temporary relocation mechanism, the Article argues that some Member States’ concerns vis-à-vis the EU could be based on either essential state functions or national identity. In such a situation, essential state functions might seem attractive because of their perceived more objective appearance than national identity. However, the given example also shows that even essential state functions could cover arguments problematic from the perspective of common EU values (art. 2 TEU).