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

J 2022

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

BOKOVÁ, Terezie

Basic information

Original name

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

Authors

BOKOVÁ, Terezie (203 Czech Republic, guarantor, belonging to the institution)

Edition

European Papers - A Journal on Law and Integration, European Paper, 2022, 2499-8249

Other information

Language

English

Type of outcome

Článek v odborném periodiku

Field of Study

50501 Law

Country of publisher

Italy

Confidentiality degree

není předmětem státního či obchodního tajemství

References:

Open access časopisu

RIV identification code

RIV/00216224:14220/22:00127356

Organization unit

Faculty of Law

DOI

http://dx.doi.org/10.15166/2499-8249/599

Keywords in English

essential state functions; national identity; art. 4(2) TEU; temporary relocation mechanism; migration crisis; Court of Justice of the European Union

Abstract

V originále

ABSTRACT: 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).

Links

MUNI/A/1257/2020, interní kód MU

Name: Národní a ústavní identity států EU

Investor: Masaryk University

Citovat

BOKOVÁ, Terezie. Exploring the Concept of Essential State Functions on the Basis of the CJEU’s Decision on the Temporary Relocation Mechanism. European Papers - A Journal on Law and Integration. European Paper, 2022, vol. 7, No 2, p. 773-797. ISSN 2499-8249. Available from: https://dx.doi.org/10.15166/2499-8249/599.

@article{2237469,
   author = {Boková, Terezie},
   article_number = {2},
   doi = {http://dx.doi.org/10.15166/2499-8249/599},
   keywords = {essential state functions; national identity; art. 4(2) TEU; temporary relocation mechanism; migration crisis; Court of Justice of the European Union},
   language = {eng},
   issn = {2499-8249},
   journal = {European Papers - A Journal on Law and Integration},
   title = {Exploring the Concept of Essential State Functions on the Basis of the CJEU’s Decision on the Temporary Relocation Mechanism},
   url = {https://www.europeanpapers.eu/en/system/files/pdf_version/EP_eJ_2022_2_3_Articles_Terezie_Bokova_00599.pdf},
   volume = {7},
   year = {2022}
}

TY  - JOUR
ID  - 2237469
AU  - Boková, Terezie
PY  - 2022
TI  - Exploring the Concept of Essential State Functions on the Basis of the CJEU’s Decision on the Temporary Relocation Mechanism
JF  - European Papers - A Journal on Law and Integration
VL  - 7
IS  - 2
SP  - 773-797
EP  - 773-797
PB  - European Paper
SN  - 24998249
KW  - essential state functions
KW  - national identity
KW  - art. 4(2) TEU
KW  - temporary relocation mechanism
KW  - migration crisis
KW  - Court of Justice of the European Union
UR  - https://www.europeanpapers.eu/en/system/files/pdf_version/EP_eJ_2022_2_3_Articles_Terezie_Bokova_00599.pdf
N2  - ABSTRACT: 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).
ER  -

BOKOVÁ, Terezie. Exploring the Concept of Essential State Functions on the Basis of the CJEU’s Decision on the Temporary Relocation Mechanism. \textit{European Papers - A Journal on Law and Integration}. European Paper, 2022, vol.~7, No~2, p.~773-797. ISSN~2499-8249. Available from: https://dx.doi.org/10.15166/2499-8249/599.

Detailed Information on Publication Record