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Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 Downloaded from https://academic.oup.com/icon/article/12/2/498/710430 by guest on 21 June 2021 498 12 (2014), 487–505 tion, as well as the extent to which religious identity is partly constituted by signifying one’s religious identity through wearing religious head cover (at 129–130).Moreover, when it comes to attire and hair, it is difcult to rely on law’s ability to rise beyond the particular and generalize: appearance preferences are often idiosyncratic and hard to articulate and put in a principled language of argument. It is often impossible to rationalize one’s hairstyle choice, or why one does not feel comfortable wearing makeup.Rights other than the right to choose one’s appearance do not require their claimers to provide a convincing reason for exercising them. Free speech protection does not depend on the content of the speech. Property rights, for example, trump almost any conicting interest, without requiring the desirability of the usage sought by the propertyowner.One could design an argument in the vein of the Critical Legal Studies approach, that doctrinal incoherence and indeterminacy is typical of law in general, and not specic to dress law. Yet Ibelieve that Robson, although her method is inuenced by critical legal studies, would reject this view and maintain that there is indeed something particular to the challenges dress presents to legal thinking.While the view that appearance is implicit in her choice to dedicate a whole book to dress and law, it is never made explicit. Perhaps it is the impressive scope of this project that, paradoxically, makes it harder to nd the common ways in which appearance cases in different legal elds challenge legal thinking in similar ways. The last chapter’s discussion of the commerce clause doctrine and cotton production, while fascinating, raises different questions from those raised by designing the scope of citizens’ freedom ofdress.The book manages to establish the claim that appearance and constitutional law are intertwined in multiple and unexpected ways, which have direct implications on hierarchical structure, sexual identity, and democracy. Yet, the even bolder claim made in the introduction, that “our attire reects the Constitution, including its text and controversial doctrine” (at 7), is left underdeveloped.Dressing Constitutionallyfor constitutional lawyers and scholars, as well as for feminist researchers, and sociologists of clothes and bodily practices. Legal historians and labor and trade experts will also nd it relevant and innovative.In her acknowledgments, Robson indicates that she left out of the book the personal experiences that shaped her understanding of this topic. Ihope that she nds a venue in which to publish these personal accounts, because if they are written nearly as compellingly as this book, we will surely learn much from then. To revisit this book’s theme might also provide a chance to develop an independent theory of dressing. The interrelations between dress and law, as Ihave suggested above, invite articulating what makes dress such a challenging and fascinating issue for legal thought. There is more to explore here, an

2 d Robson is the right person to embark o
d Robson is the right person to embark on this exploration and help us further understand the peculiar and central role of dress.Yo� TiroshThe Faculty of Law, Tel Aviv Universityytirosh@post.tau.ac.il Jespersen, 392 F.3d 1076 (nding that requiring that female employees wear facial makeup does not place an unequal burden on women).I discuss additional legal dichotomies that appearance practices challenge, such as the difference between chosen and unchosen appearance practices, and between poetic and argumentative language, in Tirosh, supraat 121–122.François-Xavier Millet. L’Union européenne et l’identité constitutionnelle des États membresvier Millet. constitutional identity of the Member States]. LGDJ, 2013. 365 pages. €48. Constitutional identity is one of the trendy and hot topics of the last decade for consti Book Reviewstutional scholars. Two important currents can be distilled in the context of the European rst, a legal-dogmatic one, advocated by EU scholars, and comprising analyses of the decisions of the Court of Justice of the European Union (CJEU) invoking article 4(2) of the Treaty on the European Union (TEU).Second, constitutional identity features in the work of constitutional scholars who argue in favor of qualifying the absolute EU principle of primacy. Here, constitutional identity plays a role in a counterlimits strategy,constitutional pluralism to varying extents.In the context of the composite European constitutional order, the debate on the ultimate locus of sovereignty has never been off the table.The book under review, which is based on the author’s doctoral thesis, tries to connect the latter two strands of scholarship that concentrate, on the one hand on article 4(2) TEU, doctrines as developed by several constitutional courts. The term “counterlimits doctrine” denotes the various attempts and trends employed by constitutional or supreme courts to resist the primacy of EU law. The most notorious example is the German Bundesverfassungsgericht, whose case law evolved from a human rights proviso, to an ultra viresand, most recently, to a constitutional iden As Millet points out, the French Conseil constitutionnel was a precursor with respect to the last of these counterlimits (at The pluralism strand of constituOutside of this Euro-centric view, reference should be made to the general article on the subject by Michel Rosenfeld, O CMPARANALAW 756 (Michel Rosenfeld & András Sajo eds., 2012), and ARY JNAL ( 2010), the latter focus Case C-208/09 Sayn-Wittgenstein v.Landeshauptmann von Wien, 2010 E.C.R. I-13693, ¶ 92; Case C-391/09 Runevic-Vardyn, 2011 E.C.R. I-3787, ¶ 86; LKE COOTNALDENANDHEURPEAN CURUS (Ph.D.thesis, Catholic University Leuven, 2013); Gerhard van der Schyff, The Constitutional Relationship between the European Union and its Member States: the Role of National Identity in Article 4(2) TEU UR. .EV 563 (2012); Barbara Guastaferro, Beyond the Exceptionalism of Constitutional Con�icts: The Ordinary Functions of the Identity Clause, 31 XFRD. UR. Mattias Kumm & Victor Ferreres Comella, The primacy clause of the constitutional treaty and the future of constitutional con�ict in the European J.CNS. 473 (2005); Armin von Bogdandy & Stephan Schill, Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty MM.EV 1417 (2011). For an overview of the national constitutional courts’ positions on EU primacy, Franz Mayer, Multilevel Constitutional Jurisdiction RINIPLESURPEAN CNSNALAW 399 (Armin von Bogdandy & Jürgen Bast eds., 2009).On the strategies deployed by the national “Europe clauses” and the constitutional courts, Patricia Popelier, “Europe Clauses” and Constitutional Strategies in the Face of Multilevel Governance J.. & C (forthcoming July 2014).Mattias Kumm, The Jurisprudence of Constitutio

3 nal Con�ict: Constitutional S
nal Con�ict: Constitutional Supremacy in Europe before and after the Constitutional Treaty EUR . L.J. Joseph H.H. Weiler, Federalism without Constitutionalism: Europe’s Sonderweg THE FEDERAL VISI 54 (Kalypso Nicolaidis & Robert Howse eds., 2001). the overview by Mehrdad Payandeh, Constitutional Review of EU Law after Honeywell CO MK LREV. Tomuschat, The Defence of National Identity by the German Constitutional Court NALNAL 205 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Conseil constitutionnel, Decision nr. 2006/543, Considérant, en premier lieu, que la transposition d’une directive ne saurait aller à l’encontre d’une règle ou d’un principe inhérent à l’identité constitutionnelle de la France, sauf à ce que le Note that the constitutional identity control is limited to the transposition of directives, which is a national constitutional duty under art. 88-1 of the French Constitution. tional scholarship, taking their cue from the French and German constitutional jurisprudence, perceives the notion of constitutional identity akin to a communicative hubcomposite constitutional structure of the EU. Constitutional identity is thus construed in a dialogical sense, primarily aimed at emphasizing crucial elements of constitutional identity in relation to EU law (at 93). Expressions of national constitutional identity that the EU should respect can be subsumed in the legal logic of the EU, but can additionally serve to invoke a limit on the national application of EU law.Contra this strand, EU scholars argue that “national identity” as devised in article 4(2) TEU cannot be construed as a barrier to primacy, but that it merely adds another ingredient to the proportionality balancing undertaken by the CJEU in order to justify derogations of the fundamental EU freedoms. Millet makes a notable and substantial contribution to this growing body of scholarship on constitutional identity. The central tenet of his work aims at constructing a bridge between those insisting on the absolute primacy of Union law on the one hand, and the more pluralist scholarship on the other hand. Millet perceives constitutional identity as both a norm of resistance and a norm of convergence. This conception is grounded in the twin evolution of Europeanization of national constitutions and the constitutionalization of the EU Treaties (at 188).frames constitutional identity as a tool of two separate but coinciding strategies: the EU uses national identity to accommodate national interests without questioning the primacy of EU law, and some national constitutional courts articulate particular concerns based in abstract—the primacy of EU law.The thesis is written in the classical French tradition, rigidly structured in a twofold manner. The rst part treats constitutional identity as a norm of resistance. The rst of two sections in this part conducts a comparative study, covering the legal notion of constitutional identity as developed in France and Germany, two contrasting examples. In France, constitutional identity serves a cooperative Communicative hubs bring about a structural between the various levels of government in a multi-tiered system such as the EU. They allow for the rendition of interests or val other levels or actors. By connecting art. 4(2) TEU to national constitutional identity, the member states can express particular points of their identity which the EU is bound to acknowledge and respect. On this notion of communicative hubs, Werner Vandenbruwaene, Multilevel Governance Through a Constitutional J.. & C (forthcoming July 2014).Opinion of A-G Maduro in Case C-53/04 Marrosu and Sardino, 2006 E.C.R. I-7213, ¶¶ The Italian Government and the court making the reference . . . justify that difference in treatment by the need to comply with constitutional requirements, namely the conditions ensuring the impa

4 rtiality and efciency of the author
rtiality and efciency of the authorities. What is the value of that justication? Doubtless the national authorities, in particular the constitutional courts, should be given the responsibility to dene the nature of the specic national features that could justify such a difference in treatment. Those authorities are best placed to dene the constitutional identity of the Member States which the European Union has undertaken to respect.von Bogdandy & Schill, supra note 3, at 1434.edited by Monica Claes with Hart Publishing: “European and National Constitutional Law.”The one case where an ultra vires decision was actually rendered, by the Czech Constitutional Court in the Slovak Pensions case, is highly exceptional, and probably will remain so, Robert Zbiral, Case Note: Czech Constitutional Court, Judgment of 31 January 2012 CO MK EV The German Federal Constitutional Court, for one, deploys constitutional identity both to resist primacy, as for instance in the data retention case (BVerfG, 1 BvR 256/08, Mar. 2, 2010, ¶ 218)and as a limit on the transfer of competences in the so-called Lissabon-Urteil (BVerfG, 2 BvE 2/08, June 30, 2009, ¶ 226). Millet treats this “confusion” at 75. Book Reviews objective the EU (at 67), whereas in Germany, Millet nds a more “solitary” approach, although not derived from any “spirit of reconciliation” (at 70). In the second section of the rst part, he sets out to describe different models of constitutional identity, by comparing the sources of the norm of national constitutional identity in France, Ireland, Germany, Hungary, and Poland. This section offers a structured analysis of constitutional identity as it gures as a legal concept in these countries. The different national conceptions of constitutional identity illustrate the inherent and double tension in the denition of constitutional identity: a tension between rigidity and exibility (at 99)and between idiosyncrasy and commonality (at et seq.). Overall, the author defends an interpretation of constitutional identity that goes beyond mere positivism (at 97). Constitutional identity hence does not solely express a universalist set of ideals as expressed through a constitutional text, but incorporates particular elements connected to the cultural and historical background of the state in question. Millet conceives constitutional identity as embodying three sets of particular and crucial norms, i.e., one set relating to the form of the state and the specic institutional and political rules; a second set constituting of national values; and a third set of norms comprising espective state in their existence or interpretation (at 118–119). Because of their particular and crucial nature, embodying the core of the national constitution, these norms might prevail over EU law in national adjudication (at119).Meticulously, the author conceptualizes the temporal dimensions of constitutional identity. While rooted in the historical tradition of the state, this identity can also contain forward-looking elements that express a commitment towards future generations.for France, the republican tradition gave birth to the fundamental principles of equality, , and double jurisdiction (at 120–134); social and environmental rights that supersede EU obligations (at 139–141). Moreover, principles that inhere in the concept of constitutional identity are not set in stone, but evolve. The strong republican formal interpretation of equality was challenged by a progressive interpretation—reminiscent of the legal realist approach of Brandeis who argued for informing formal doctrinal interpretation with socio-economic data.Jumping forward to the national identity provision in the Treaty on the European Union, a textual reading of the TEU can raise problems: Leonard Besselink has argued that cultural

5 identity is not the primary target of th
identity is not the primary target of the national identity clause of article 4(2) because the TEU covers cultural identity in other provisions, such as article 3(3) TEU.Keeping in mind the elaboration of the clause following Lisbon, he argues that article 4(2) aims specically at the political and constitutional dimension of national identity. Evidently, as Besselink points out, splitting such hairs runs into severe problems; how can one, for instance, operationalize this difference between cultural and constitutional Millet for his part discards such textual rigidity. Indeed, his analyThis ambivalence stems from two ideal types of constitutionalism: a communitarian emphasis embodying national tradition, and a cosmopolitan liberal approach expressing universal values See his brief pro the economic regulation of labor hours of women in Muller v.Oregon, U.S. 412 (1908).Opinion of A-G Kokott in Case C-222/07 UTECA, 2009 E.C.R. I-1407, ¶ 93:Respect for and promotion of the diversity of its cultures constitutes one of the Community’s main preoccupations in all areas (Article 151(4) EC), including its legislation in the audiovisual services eld; it is ultimately an expression of the European Union’s respect for the national identities of its Member States (Article 6(3) EU).National and Constitutional Identity Before and After Lisbon UT LREV . 44 (2010). 502 12 (2014), 487–505 sis of OmegaSayn-Wittgenstein shows that the CJEU defers to a national conception of human rights, in part inspired by a specic national cultural background (at 210–211).In the Omega case, the German construction of human dignity justied a restriction on the freedom to provide services, although the specic nature of human dignity (a European or a national fundamental right?) was not answered unequivocally (at 214).Sayn-Wittgenstein, the CJEU accepted a refusal of the Austrian Republic to recognize all elements of a surname of a national of another member state, based on the consideration that “in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.”CJEU found a national construction of a funOmegaSayn-WittgensteinEuropean setting as a general principle. Millet criticizes this construction, noting that “it is far from established that the national conceptions of quality and dignity conform exactly to the European conception” (at 211).The second part of the book (which like the rst consists of two sections) investigates constitutional identity as a norm of convergence, and in particular, tries to connect the national notions of constitutional identity with the obligation of the EU to respect national identity. Article 4(2) TEU requires the EU to respect the member states’ “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” Thus conceived, constitutional identity functions at the internal, national plane, and at the external plane, it shapes the interaction with other units.insight guides the second part of the book. Millet conducts a structured analysis of the scope for respect of national constitutional identity under EU law in a chapter titled “Dits et non-dits de droit de l’UE,” where he observes that, while the treaties are silent on the question of national constitutional identity, there is a degree of deference in the case-law of the CJEU. Indeed, the CJEU’s decisions involving elements of national constitutional identity have up to this point been “nothing revolutionary,” since the arguments on national identity have never led the court to depart from the fundamental obje

6 ctives of uniform application of EU law
ctives of uniform application of EU law and primacy. But the CJEU has recognized the weight of certain particular elements invoked by the member states in its proportionality balancing. These deep and inherent elements of the culture and history of a country, claimed to pertain to national identity, and respecting the constitutional structure of a member state, allow for divergence from the classical integrative provisions of EU law.case of Sayn-Wittgensteinunderpinning of the law on family names forbidding the expression of nobility was recognized as pertaining to the national identity of Austria. Nonetheless, national identity does not function as a categorical trump card, but structures and inspires the proportionality inquiry justifying a derogation from EU law. As Millet notes, the closer the national restriction justied with national constitutional identity Case C-36/02 Omega Spielhallen, 2004 E.C.R. I-9609; Case C-208/09 Sayn-Wittgenstein.Case C-36/02 Omega Spielhallen, ¶ 34.Case C-208/09 Sayn-Wittgenstein, ¶ 83.My translation; the original reads: “il est loin d’être acquis que les conceptions nationales d’égalité et de la dignité recoupent exactement la conception européenne.”The internal functioning of identity is related to the integrationist objective of a national constitution, furthering a collectiveness: Walter, Europäische und nationale Identität in der Wechselwirkung PAÏSNANALESERFASSUN 68, 71 (Winfried , T CNAL 269 Laurence Burgorgue-Larsen, A Huron at the Kirchberg Plateau NAL CNAL supra note 7, at at 304. Book Reviews touches upon the core values of the EU, such as the principle of non-discrimination, the less likely the CJEU is to accept this justication. By the same token, if a matter is closely related to the core of a member state’s constitutional identity, the margin of appreciation can be larger (at 233).In the second section of the second part of the book, Millet relates his ndings on constitutional identity as a norm of convergence and a norm of resistance to a broader framework. First he analyses to what extent subnational constitutional autonomy is recognized in federal systems such as the US, Germany, and Switzerland (at 239 et seq.). Drawing a parallel between these centripetal federal systems and the EU, Millet wants to assess in what measure subnational constitutional choices and values, i.e., identity-related norms, are taken into account at the federal level. He observes that contrary to the expectation, federal supremacy is not absolute, as buttressed by the validity of subnational superior protection of human rights in Switzerland (at 260–262). Conversely, from a bottom-up perspective, subnational constitutional identity can provide an obstacle to the application of federal law, an example Millet derives from German federalism (at 256).He then offers an interpretation of national constitutional identity as a structural rinciple of EU law. This structural incorporation of national constitutional identity is not without impact on the nature of the EU. Indeed, and that is where the nal chapter starts off, constitutional identity offers a way to preserve simultaneously both relative unity and relative diversity (at 286). Noting that the EU is strongly oriented towards integration, as evinced by an absolute conception of primacy, Millet posits that constitutional identity does not necessarily mean a return to a more dualistic structure, dominated by national sovereignty (at 298). Instead, through constitutional identity, a dialogical exchange in constitutional terms serves to strengthen the interdependence between the national and supranational legal orders (at 308). Reading article 4(2) TEU in conjunction with the national constitutional identity jurisprudence, Millet argues that through articulation of constitutional specicity EU law, a degree of convergence emerges. Such ordered plu

7 ralism gives rise to considerations of l
ralism gives rise to considerations of legitimacy and effectiveness of legal If respect for the constitutional identity of the Member States can thus constitute a legitimate interest which, in principle, justies a restriction of the obligations imposed by Community law, it can all the more be relied upon by a Member State to justify its assessment of constitutional measures which must supplement Community legislation in order to ensure observance, on its territory, of the principles and rules laid down by or underlying that legislation. It is, nevertheless, necessary to point out that that respect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given elds. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.Opinion of A-G Maduro in Case C-213/07 Compare the federal decision imposing the freedom of worship (BVerfG, 1 BvR 1087/91, June 16, 1995)and thus precluding the insertion of crucixes in the Bavarian classrooms, with the decision of the Bavarian Constitutional Court on a subsequent legislative act of Bavaria (VerfGH 50, 156, Aug. 1, 1997).This is the well-known line of celebrated cases such as Case 6/64 Costa v. Enel, 1964 E.C.R. 587; Case 11/70 Internationale Handelsgesellschaft, 1970 E.C.R. 1125; Case 106/77 Simmenthal, 1978 E.C.R. 629. recently Fabian Amtenbrink, The ECJ’s Approach to Primacy and European Constitutionalism, in C JTO 35 (Hans-Werner Micklitz & Bruno de Witte eds., 2012). 504 12 (2014), 487–505 acts over formal validity (at 320). Millet nds himself in agreement with Monica Claes, who argues contra a radical pluralist interpretation of a national identity control, which would allow national constitutional courts to obstruct the application of EU law and thus challenge the principle of primacy. Claes classies the counterlimits case law of constitutional courts as mere unilateral signals, while article 4(2) TEU—the interpretation of which is determined by the CJEU—opens up room for negotiation and debate. She posits that the recognition of national identity can allow for a derogation from the uniform application of EU law, and requires the CJEU to engage with member states who claim that their national identity is tampered with by EU law.Millet connects this position of ordered pluralism to the theories of Miguel Poiares Mad and Matthias Kumm (at 314),has developed a discursive approach to pluralism, suggesting that the constitutional reasoning by both European and national courts should be constructively engaged with one another. Millet notes that constitutional identity aligns neatly with this conception of ordered pluralism, because it calls for active judicial engagement at both the national and European level. Kumm’s construction of cosmopolitan constitutionalism entails a form of structured pluralism under a meta-framework of liberal constitutionalism, disengaged from the nation-state. This constitutionalism, according to Kumm, allows for the prioritization of national law over EU law, depending on which set of norms maximizes the liberal values of constitutionalism, in particular democratic self-expression: “When EU law conicts with clear and specic national constitutional norms that reect a national commitment to a constitutional essential, concerns related to democratic legitimacy override considerations relating to the uniform and effective enforcement of EU law.” Constitutional identity o

8 f both the national member states and th
f both the national member states and the European Union gures in these theories as a legal concept that embodies an important normative core and requires a constructive engagement by the relevant constitutional actors, in the rst place, the constitutional judiciary.The perspective of constitutional pluralism can overcome the traditional monist-dualist divide that has asphyxiated EU constitutionalscholarship in the past. Because of the mportant place in the hierarchy of principles and values of constitutional identity, an important task is bestowed upon the judiciary, i.e. to continually seek and adjust the balance between constitutional principles that construe and maintain a complex and composite order such as the EU. The nal pages of the book include further reections. Millet argues that constitutional identity can function as a rule of recognition in a hierarchy of principles and values (at 319). It offers a bridge to express national constitutional values at the EU level in an ad hoc setting; in other words, it deconstructs absolute primacy in favor of a constitutional body of values and prin While Iagree that through judicial National Identity: Trump Card or Up for Negotiation NAL CNSNALDENANDURPEANRA, supraMiguel Poiares Maduro, Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism ? CNALISMERNANALAW GBAL GVERNAN 356 (Jeffrey Dunoff & Joel Trachtman eds., 2009); Miguel Poiares Maduro, Three Claims of Constitutional Pluralism NAL 67 (Matej Avbelj & Jan Komárek eds., Mattias Kumm, The Cosmopolitan Turn in RULIN T WO?, supranote 32, 258; Kumm, supra note 5, at 262.Kumm, supra note 5, atWriting in 2005, Rosenfeld raised the question: “the European model would have to promote novel vertical and horizontal apportionments of powers allowing supranational, national, and infranational governance to work in harmony without being constrained by traditional forms of federalism or confederalism.” Michel Rosenfeld, The European Treaty-Constitution and Constitutional Identity: A View from America, 3 J.CNS. 316, 330 (2005). Millet’s answer is a patently constitutional approach, with due regard to the composite nature of the EU. Book Reviews dialogue these principles and the derivate legal norms gain in legitimacy, dening national identity is quite a normative affair, not without pitfalls. To convince the CJEU of the importance of an element of national constitutional identity would thus require some methodological or procedural scheme. Second, as the author himself notes on the last page, the case shows there is still a long way to go for constitutional identity to play a meaningful role in a pluralist account of the EU.In my view, Millet’s doctoral thesis exemplies the best traits of modern scholarship: across national boundaries and different elds of law, it combines analytical rigor with a Werner VandenbruwaeneResearch Group Government & Law, University of Antwerpwerner.vandenbruwaene@uantwerpen.beSee on this theme of judicial dialogue, NAL C ( Monica Claes etal. Compare with the critique on the German Federal Constitutional Court’s Lissabon-UrteilBvE 2/08, June 30, 2009, ¶ 249 and 252, where it posits certain competences inherent to the national level. See, e.g., Jo Eric Khushal Murkens, “We Want Our Identity Back”—The Revival of National Sovereignty in the Federal Constitutional Court’s Decision on the Lisbon Treaty AW 530 (2010); Jan-Herman Reestman, The Franco-German Constitutional Divide, . C The role of “coherence” in internal market derogations, requiring a steady and coherent conduct of the Member State can illustrate this. Gjermund Mathisen, Consistency and Coherence as Conditions for Justi�cation of Member State Measures Restricting Free Movement CO MK EV Case C-399/11 Melloni, Feb. 26, 2013, unrep