Biblioteca PGR


PP315
Analítico de Periódico



SMERDEL, Branko
In quest of a doctrine : Croatian Constitutional identity in the European Union / Branko Smerdel
Zbornik, Zagreb, v.64 n.4 (2014), p.513-533


DIREITO COMUNITÁRIO, UNIÃO EUROPEIA, FEDERALISMO

On the instance of theoretical dilemmas, which have been opened in the Croatian legal community by its entrance into the European legal system, the issues of a constitutional identity have been treated in the paper. There still exist tendencies of equalizing the federal principle with a federative state, and consequently rejecting federalism as a viable principle. In a combination with the two erroneous ideological interpretations of the European Union, whether as a system dominated by a self-serving bureaucracy, or opposite, as a community founded on a faith and altruism, they emphasize the importance of a proper understanding the notion of constitutional identity. Among other meanings of constitutional identity, there is the one of a ‘remnant sovereignty’ in a compound community of states. To that purpose it is important, though neglected, to construe a new legal theory with an aim to strengthen the rule of law, as well as to delineate realistic principles of primacy of European law over the national constitution. Such a theory cannot be established upon a pure legalism, but only on an interdisciplinary approach, which would take into account a whole array of extrajudicial factors which determinate dynamics of relationships within a complex system of plural constitutionality of the Union. There must not be forgotten the achievements of the federalist theory, which had permeated the ideas of the founders of the European integrations. The erroneous actions of the Croatian government and the dispute with the European Commission at the very beginning of the membership have demonstrated the necessity of such a realistic theory of constitutional identity. Since there exists a lot of confusion on the matter in other countries as well, the problems of the newest member state might be of significance for furthest clarifications to other members.