THE PRINCIPLE OF RESPECT FOR THE MEMBER STATES’ NATIONAL IDENTITY WITH REGARD TO THE RIGHTS AND OBLIGATIONS OF MIGRANT CITIZENS OF THE EUROPEAN UNION
THE PRINCIPLE OF RESPECT FOR THE MEMBER STATES’ NATIONAL IDENTITY WITH REGARD TO THE RIGHTS AND OBLIGATIONS OF MIGRANT CITIZENS OF THE EUROPEAN UNION

Summary/Abstract: The principle of respect for the national identities of the Member States is directed principally at the Member States and defines the relationship between the Member States and the European Union. The conceptual scope of the principle itself includes two levels: ethical and institutional. The first covers such elements as history, culture, tradition, language and religion. The other is connected with the constitutional identity of a Member State. The principle of respect for national identity is first of all used in the context of restrictions on the effectiveness of EU law in the legal systems of the Member States. These States can invoke one of the elements shaping the national identity in order to,for example, limit the freedoms of the Internal Market. It should be emphasized that the limiting conditions include not only the ethical space, but also the institutional one, e.g.the protection of human rights or a threat to public order. Secondly, respect for national identity in the institutional space, as constitutional identity, is a basic argument in the discussion on the exclusive competences of Member States and the preservation of sovereignty by the Member States. In the context of the rights of migrant citizens of the European Union, it seems that the impact of the discussed principle is limited. The catalog of citizen rights does not refer directly to this principle. As has been shown above, the solution is to invoke the prohibition of discrimination based on origin, which can effectively protect the national language, religion or other elements shaping the national identity of the country of origin. However, this view is not entirely right. In the Avello case the Court of Justice referred to a problem that exceeded the competence of the European Union and ruled on matters falling within the exclusive competence of the Member States. The Court decided that attribution of family name to children with dual citizenship in accordance with the tradition and culture of the migrant’s country of origin has higher value than division of competences. The principle of respect for the national identity of the Member States indirectly affects the obligations of a migrant citizen to the host country. It is not possible to accept the thesis that it is a civic duty, but in certain areas it shapes indirectly the obligations of a migrant citizen to a Member State. The citizen is obligated to respect the order, security and public health of the host country. The consequence of violation of this obligation is expulsion from the host state’s territory or refusal to grant the right of residence.

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