The identification of national identity in EU law: A Venn diagramming exercise

Abstract

The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. While the Treaty on the Functioning of the European Union contains several grounds, such as public policy and public morality, to justify restrictions to free movement, over the years national identity has been occasionally invoked by Member States as (part of) an overriding reason relating to the public interest capable of justifying a restriction on the principle of non-discrimination on grounds of nationality. In recent years, national identity has occasionally been invoked in front of the Court of Justice outside the classical area of the internal market. By studying the concept of national identity in and outside a free movement setting and by Venn diagramming the case law of the Court of Justice in which the national identity was explicitly at stake, including the most recent cases up until 14 December 2023, and by building upon existing scholarly work, this article aims to answer the question whether national identity is (still) 'one' concept in EU law or whether its meaning and scope can vary depending upon the context.