Crafting Constitutional Identity in the Era of Migration and Financial Crises–The Case of Greece
Dimitra Gamba Dimosthenis Lentzis
Crafting Constitutional Identity in the Era of Migration and Financial Crises–The Case of Greece - Volume 18 Issue 7
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The debate on the exact meaning and content of their constitutional identity has a long history in many European countries, with national courts playing the leading role. Ten years ago, this debate was given a new boost by the Treaty on European Union (TEU), article 4 paragraph 2 of which urges the European Union to respect the constitutional identities of the Member States. The national courts in a number of Member States saw in this provision the recognition of their zealous efforts to control the ongoing expansion of EU competences and to overcome the absolute primacy of EU law over domestic constitutional law. In Greece, however, no debate on the possible use of constitutional identity as a limit to the European Union and its law had taken place—at least not until recently. Our main objective in this article is to try to explain why Greek courts, and especially the Symvoulion Epikrateias, the supreme administrative court, failed to develop and make recourse to a notion of constitutional identity, even in cases they had good reasons to do so, and to find out if—and, if yes, to what extent—the situation has changed after the outbreak of the financial and, soon after, the migration crises. The analysis of the relevant case-law will permit us to conclude that the Greek constitutional identity is currently still under construction and that it is constructed using elements from both the liberal and the exclusionist models.

10 Around the same time, Symvoylion Epikrateias was faced with a similar problem in another case. The case had to do with the ethnic origin of the students in military schools. There was a minority opinion which stated that Greek citizens who were not Greek by birth but by naturalization could not be accepted in military schools because the domain of national security and defense is a sensitive one and citizens who were not Greek by birth could constitute a possible threat to the territorial integrity and sovereignty of the state. There was, however, no reference to the national identity of Greece. See Symvoylion Epikrateias [Supreme administrative court] 3317/2014.Google Scholar

20 Article 3 paragraph 1 of the Greek Constitution which reads as follows: The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ. The Orthodox Church of Greece, acknowledging our Lord Jesus Christ as its head, is inseparably united in doctrine with the Great Church of Christ in Constantinople and with every other Church of Christ of the same doctrine, observing unwaveringly, as they do, the holy apostolic and synodal canons and sacred traditions. It is autocephalous and is administered by the Holy Synod of serving Bishops and the Permanent Holy Synod originating thereof and assembled as specified by the Statutory Charter of the Church in compliance with the provisions of the Patriarchal Tome of June 29, 1850 and the Synodal Act of September 4, 1928.Google Scholar

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39 The peculiarity of higher education in the Greek social context is also evident in a more recent case of Symvoylion Epikrateias concerning the cuts in university professors' salaries. In that case, the court ruled that the quality of services provided by university professors and their role in the education of the new generation deprives the government from the possibility of cutting their salaries over a certain amount due to the financial crisis and the need to reduce public spending. See Symvoulion Epikratias [Supreme administrative court] 4741/2014.Google Scholar

46 More specifically, part of the Greek legal scholarship has suggested that the conflicts between national constitutional and EU law could be resolved on the grounds of article 28 of the Greek Constitution, which has the function of a special amendment clause, rendering the constitution capable of accepting the integration process as a whole without being formally amended. See Julia Iliopoulos-Strangas, supra note 28, at 92–93; Lina Papadopoulou, I dimiourgiki autokatastrophi tou Syntagmatos I pos to Syntagma ypodehetai to koinotiko fainomeno [The Creative Self-distraction of the Constitution or How the Constitution Welcomes the Integration Process], in Enees, Eikosi Chronia Apo Tin Entaksi Tis Elladas Stin Eyropaiki Enosi: Apologismos Kai Prooptikes [Twenty Years Since the Accesion of Greece to the European Union: Aftermath and Prospects] 23 (2002).Google Scholar