4 - Constitutional Identity in Belgium

Summary

This chapter on Belgian constitutional identity consists of two parts. A first part explores the views of Belgium’s supreme judicial institutions on the relation between the Belgian Constitution – in particular its ‘identity’ – and EU law. It is shown that the courts’ views diverge. Whereas the Cour de Cassation fully complies with EU orthodoxy, the Constitutional Court’s acceptance of the primacy of EU law is based on a constitutional provision and is subject to the proviso that EU law comply with Belgium’s national identity and fundamental constitutional values. The Council of State, for its part, seems to vacillate between these two positions. In a second part, the focus shifts to the meaning of the twin concepts of national and constitutional identity in Belgian law. Those concepts being new to the Belgian legal order, their content is still shrouded in mystery. This contribution makes an attempt to lay bare their meaning by delving into Belgian constitutional history.