Corona, Constitution en Constitutional Identity. The (potential) Impact of a European Legal Concept in the Domestic Legal Order

This paper examines the notion of constitutional identity and its implications within the Belgian legal framework. It explores a significant case where the Council of State suspended a COVID-19 measure, highlighting the right to freedom of religion as a value belonging to the core of the Belgian Constitution and its constitutional identity. The concept of constitutional identity was introduced in Belgian law under the influence of European Union law, particularly in the "Stability Treaty"-judgement of the Constitutional Court. By referencing the Constitutional Court's reasoning in the assessment of COVID- 19 measures, the Council of State implies that constitutional identity holds both European and domestic legal significance. However, the application of the concept of national or constitutional identity within the domestic constitutional context raises fundamental questions. This paper aims to address potential issues arising from the utilisation of constitutional identity in national constitutional law. Key questions include the impact on other constitutional or public law concepts, the relationship between constitutional identity and provisions/values not currently considered as elements of Belgium s constitutional identity, whether or not designating core values implies the creation of a hierarchical order among constitutional norms when, and how different aspects of constitutional identity interact with one another. Additionally, the implications of constitutional identity for the power to amend the constitution is assessed. This paper adopts an exploratory approach rather than advocating for specific consequences of an internal constitutional identity test. By examining the logical implications of designating constitutional provisions as part of the Belgian constitutional identity, the paper aims to shed light on potential outcomes if the theory were to be developed further in future case law. The paper begins with an analysis of constitutional identity in European and national constitutional law, followed by an overview of elements of the Belgian constitutional identity, as identified by legal doctrine. Finally, the paper examines the potential consequences of an internal constitutional identity test.