CONSTITUTIONAL RESISTANCE TO EU LAW: THE COURTS AND TEST OF CONSTITUTIONAL IDENTITY CONFLICTS

This essay aims to analyze how national constitutional/supreme Courts address the evolution of the European integration process when this latter touches upon fundamental constitutional elements of the EU Member States. More specifically, the paper explores the recent case law concerning the issue of constitutional identity conflicts, in order to show the common arguments underpinning different European constitutional/supreme Courts’ jurisprudence. From a comparative point of view, the analysis highlights the emergence of a growing front of constitutional resistance whose meaning for the future of European constitutionalism is still unclear. At the same time, the study seeks to examine the patterns of constitutional resistance within the European integration process in the perspective of a mutual interaction between Courts.


. Introduction
It is hard to deny that nowadays the European integration project and, in particular, the principle of EU law primacy are navigating turbulent waters. This is especially true, today more than ever, in the wake of the ground-breaking Weiss judgment that the Second Senate of the German Constitutional Court pronounced on the European Central Bank's Public Sector Purchase Program (PSPP) in May 2020. 1 As the legal scholarship has extensively pointed out, 2 this momentous decision of the Bundesverfassungsgericht (henceforth BVerfG) is liable to mark a turning point for EU constitutionalism: it poses a serious threat to the safeguard of the unity and integrity of the EU legal order, by setting a dangerous precedent that overwhelms the s.c. "dialogic" relationships between the Court of Justice of the European Union (CJEU) and national constitutional/supreme Courts. Without delving here into the intricate matter of monetary policy and the merits of the ruling at issue -which found both the quantitative easing program and the CJEU's blessing thereof to be "ultra vires" 3 -, suffice it to recall that the BVerfG denied to be bound by the earlier judgment of the CJEU and conducted its own review to determine whether the Eurosystem's decisions on the PSPP remain within the competences conferred upon it under EU primary law. 4 2 For some insightful comments see, among many others, The German Federal Court and its first ultra vires review: a critique and a preliminary assessment of its consequences, (http://rivista.eurojus.it/the-german-federal-courtand-its-first-ultra-vires-review-a-critique-and-a-preliminary-assessment-of-its-consequences/). 3 In particular, the Second Senate held that the Federal Government and the Bundestag violated the complainants' rights under Art. 38 (1) in conjunction with Art. 20 (1) and (2), and Art. 79(3) of the Basic Law by failing to take steps challenging that the European Central Bank, in its decisions on the adoption and implementation of the PSPP, neither assessed nor substantiated that the measures provided for in such decisions satisfy the principle of proportionality. Moreover, the Karlsruhe Court found that the CJEU's Weiss judgment of 11 December 2018 on the legality of the ECB's decisions on the PSPP was rendered ultra vires and, therefore, had no legal effect in Germany because it lacks the "minimum of democratic legitimation" necessary under the Basic Law. 4 According to the Second Senate, "Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) first sentence GG affords voters a right vis-à-vis the Federal Government, the Bundestag and, as the case may be, the Bundesrat, compelling these constitutional organs to monitor whether institutions, bodies, offices and agencies of the European Union adhere to the European integration agenda (Integrationsprogramm), to refrain from participating in the adoption and implementation of meas-To recall a recent comment of the CJEU president on this judgment, such kind of national constitutional courts intervention sends the critical message "that EU law does not apply with the same force throughout the EU and that 'some Member States are more equal than others'". 5 As a matter of fact, the Karlsruhe judges did not hesitate to affirm as follows: "Based on their responsibility with regard to European integration (Integrationsverantwortung), the Federal Government and the German Bundestag have a duty to take active steps against the PSPP given that it constitutes an ultra vires act. [...] German constitutional organs, administrative authorities and courts may participate neither in the development nor in the implementation, execution or operationalisation of ultra vires acts." (paras. 229 and 234).
In view of the foregoing, the case at hand witnesses in an exemplary way a "threatening posture" 6 of the Second Senate's legal reasoning against the supremacy of EU law and, not without a distinctly political accent, its blatant hostility towards the authoritativeness of the Luxembourg Court within the EU legal system. By activating for the first time ever the ultra vires review of EU measures, which aims to guarantee the democratic principle and is therefore closely interwoven with the protection of German constitutional identity, the BVerfG in fact makes clear that it does not only bark -as it had often done since the early days of the Solange doctrine -but bites as well. 7 Yet, turning the gaze also towards other Member States' "Europe-related" jurisprudence, one can observe that the Weiss decision is far from being an isolated and completely unpredictable episode. This recent judgment should rather be understood as the latest milestone of a more complex and far-reaching phenomenon of "counter-constitutionalism" 8 : ures that exceed the limits of the integration agenda (Integrationsprogramm), and, where such measures constitute a manifest and structurally significant exceeding of EU competences, to actively take steps to ensure conformity with the integration agenda (Integrationsprogramm) and respect for its limits [...]. The Federal Constitutional Court conducts an ultra vires review to assess whether these standards are met [ 8 This term is used in Arcari, M., Ninatti, S., Exploring Counter-Constitutionalism: The Backlash Effect of Constitutional Vocabulary of the European Court of Justice and the European Court of Human Rights, paper presented at the GlobCon Scholars a paradigm which has increasingly come to the fore, throughout the last decade, alongside the European constitutionalization process. As is wellknown, the constitutional dimension of the European integration has at length been debated by the legal scholars over the years with different perspectives and outcomes. For their part, the Member States -and more precisely their constitutional/supreme Courts -have shown different possible ways to interact with this kind of evolution and eventually to challenge it. Besides the possibility to declare an EU act as "ultra vires" and, therefore, inconsistent with their domestic constitutions (and the EU Treaties themselves), it has been emerging a second, more refined way to oppose this development, at the core of the constitutional dimension in the making of the EU system: it is rooted in the concept of "constitutional identity", which includes the inalienable respect of some fundamental principles on which the very structure of that State is grounded. It is easy to recognize in this second option some hints of the counter-limits theory developed at the very beginning of the EU integration history by the German and Italian Constitutional Courts. 9 Following this premise, the aim of the present work is to shed some light on the ever-growing dynamics of constitutional courts' resistance that can be traced in the context of EU law and, as a consequence, to assess its constitutional implications on the European integration process.
Within this framework, a preliminary step focusing on the emergence of constitutional narratives in the EU integration process is needed: constitutional traditions and constitutional identities of the Member States almost naturally took center stage, as we will see, sometimes as a constituent element of such process and sometimes as a counterpart of the ongoing European integration progress. Accordingly, in order to analyze the constitutional components of the EU system, the starting point of the research is the gradual development of the use of the common constitutional traditions as well as the progressive rise of the concept of constitutional identity as a fundamental element of a whole European constituent process up to including in the Lisbon Treaty a specific provision on this matter, i.e. Article 4, 2 TEU (para. 2). 10 We will then look into a variety of Workshop, Berlin, 5-6 July 2018, now to be published in: Chiti, E., Martino, A. di, Palombella, G., (eds.), L' età dell'interlegalità, work in progress. 9 For an extensive and thorough analysis of this subject in its entirety see for all Lustig 10 In this perspective, it is to be made immediately clear that this area represents the real battlefield between the national constitutional dimension and the European one: reactions by the relevant constitutional/supreme Courts' case law from a comparative perspective, mainly on the side of the "constitutional identity reserve" -even in its close connection with "ultra vires" EU acts review -, thus investigating the patterns of constitutional resistance which can be identified in the European integration process (paras. [3][4][5]. We will thus examine how the constitutional courts' narrative of resistance reached its (to date) highest peak -or, put differently, its breaking point -with the BVerfG's PSPP decision and whether there were warning signs foreshadowing the perfect storm that has hit the already fragile constitutional equilibrium which underlies the EU legal space in the making. In simpler words, can we detect a fil rouge in the European national constitutional courts case law on these ultimate constitutional conflicts? Do the CJEU and the national constitutional/supreme Courts, walking the tightrope of this trend of judicial "rebellion", manage to settle such conflicts and coexist with each other? . Bits and Pieces of a Constitutional Narrative in the EU As is well-known, the CJEU never hesitated to define the Treaties as the "basic constitutional charter" of the EU legal order and to recognize its own power of judicial review for EU acts inconsistent with the Treaties. Besides such recognition of the Treaties as the basic charter of the EU, the constitutional narrative in the EU case-law was initially filtered by the introduction of the reference to common constitutional traditions in the CJEU case law. 11 It is important to start from this point, since it allows us to grasp -from the very beginning -the constitutional interaction shaping the relationship between the EU and the national legal orders.
As a matter of fact, this interpretative canon, when used, provides legal reasoning with a particularly strong and solid foundation, drawing openly on the law of the Member States considered as a whole. The symbolic value of this canon is even more important. Needless to say, the recognition of the European constitutional roots confers a special relevance even if its borders are still dramatically blurred, this point represents the milestone on which an intertwined paradigm of constitutionalism is currently developing. 11 As is well-known, this latter is an interpretative instrument originally used by CJEU judges (or more frequently by the Advocate General) to fill a gap in the provisions of the Treaties. The judge, by means of this instrument, sounds in depth the national legal principles on the issue at stake in order to distil the European common constitutive notes, which will turn into the so-called general principles of EC law, directly applicable to the case.
to the criterion in question, since the respect of the diverse Member States' identities, together with the acknowledgment of all that unites them, has always constituted the heart of the community experiment, otherwise known under the saying "united in diversity". 12 Over time -and even considering the evolution of the EU legal order and the extension of the European territory incorporating political, economic and juridical systems that cannot be entirely ascribed to the history and development of the European integration -the use of the common constitutional traditions canon has not been recessive. And after the issuing of the Charter of Fundamental Rights of the European Union, the common constitutional traditions became the emblem of the s.c. "Europe of rights".
At this point, the narrative on common constitutional traditions starts changing paradigm. It is not the case to recall here the rich CJEU case law on fundamental rights, but the different legal background in which it is now placed has deeply transformed its use: common constitutional traditions begin to fade behind a "clausola di stile" that is tied -together with the reference to the Convention for Human Rights -to the protection of fundamental rights in the EU legal order under Article 6 TEU.
In this shift of the narrative one can begin to grasp the seeds of possible conflicts between the two constitutional dimensions of European integration. Some arguments put forward by the Advocate Generals in delicate cases regarding fundamental rights protected both at national and European level can be helpful in understanding this point.
As a paradigmatic example, the reasoning carried out by Advocate General Poiares Maduro in the well-known Arcelor case highlights the general framework underpinning the said evolution. Letting aside the details of the case, 13 the question put forward by the French judge to the CJEU 12 In this sense, the rhetoric relating to common constitutional traditions is most certainly very powerful: but, still, it resembles more a "rhetoric" rather than a technical vocabulary, since the choice to use the expression constitutional traditions instead of constitutions immediately proves a wider extension of such legal reasoning (and consequently major creativity by the judge who uses this expression). 13  concerns the respect, from the side of an EU act, of the values and constitutional principles of a Member State (more precisely, the equality principle was at stake). This control, however, must be carried out through the recognition of the protection of the same right at a supranational level, as provided by the standards of the common constitutional traditions. Thus, the Council of State requests that the CJEU -when judging the respect of the principle of equality on EU level -takes into consideration the respect of the principle of equality as set down by its own constitution. And it is in this context that the Advocate General makes an interesting suggestion: On the basis of these statements we can incidentally infer that the criterion of the common constitutional traditions is beginning to shift from its own territory of an interpretative canon, rooted in the different expressions of the Member States' constitutional orders, to a sort of founding principle of the common values of the European Union. The common constitutional traditions affecting separately and over time the EU legal order are now transformed in a sort of "European tradition" that is reshaping values and rights of EU countries. In this reconstruction it is obvious that the national Supreme Courts should cooperate in close connection (or dialogue) with the CJEU by means of the preliminary reference in order to steadily deepen this common tradition.
Echoes of this understanding could be traced in one of the first and most famous cases regarding a constitutional conflict between a national Constitutional Court and the Luxembourg Court. As is well-known, the Melloni case 14 deals with the procedures provided for by the European Arrest Warrant and has its origin in the Spanish case-law of the Tribunal Constitucional, according to which the execution of a European arrest warrant must be subject to certain conditions (not foreseen in the EU regulation), that would set a higher standard of protection for the convicted person. 15 Interestingly enough, the CJEU states that it is not necessary to analyze the constitutional traditions of the Member States once the EU Council Framework Agreement at stake has been adopted. In this occasion, the Advocate General observed -by and large -that "a concept demanding protection for a fundamental right must not be confused with an attack on the national identity or, more specifically, the constitutional identity of a Member State" (para. 142, referring to Art. 4, 2, TEU).
On this last issue, we have to recall that the Lisbon Treaty introduced a new provision compelling the EU to respect the national identity of the Member States, i.e. "their fundamental structures, political and constitutional structure". 16 If one can read this article as a clear limit to the expansive attitude of the European Union system, some legal scholars have properly observed that it can also be interpreted in another way: absorbing the national identity's protection in the very fabric of the EU Treaties could end up in transposing its control at the EU level. This latter reading could actually be confirmed by the direction undertaken in the EU case law regarding the common constitutional traditions.
That being said, there is a small note to add at this point: taking for granted (or absorbed within the EU system) common constitutional traditions and constitutional identity -as they evolve with the passing of time -could be a risky choice from the point of view of acceptance of the CJEU case law in the national legal frameworks. 15  This issue is actually at stake in one of the case studies we are going to deal with in our analysis. In Gauweiler the Advocate General pointed out very clearly the possible paradox arising from the separation of the two constitutional poles of the European integration: "I think it is useful to recall that the Court of Justice has long worked with the category of 'constitutional traditions common' to the Member States when seeking guidelines on which to construct the system of values on which the Union is based. Specifically, the Court of Justice has given preference to those constitutional traditions when establishing a particular culture of rights, namely that of the Union. The Union has thus acquired the character, not just of a community governed by the rule of law, but also of a 'community imbued with a constitutional culture'. That common constitutional culture can be seen as part of the common identity of the The reactions of the domestic constitutional courts to this trend, as we have already mentioned, share a common reflection, even though they bear different tones: a renewed call for the respect of competences and for the safeguard of national identity, together with a general fear of a further overstretching of the EU's powers. Transgression of competences (ultra vires act review) and violation of constitutional identity (identity review) 17 CJEU, Peter Gauweiler and Others v. Deutscher Bundestag, Case C-62/14, Opinion of Advocate General Cruz Villalón, 14 January 2015. The previous paragraphs (59-60) are also very interesting: "The first is that it seems to me an all but impossible task to preserve this Union, as we know it today, if it is to be made subject to an absolute reservation, ill-defined and virtually at the discretion of each of the Member States, which takes the form of a category described as 'constitutional identity' . That is particularly the case if that 'constitutional identity' is stated to be different from the 'national identity' referred to in Article 4(2) TEU. Such a 'reservation of identity' , independently formed and interpreted by the competent -often judicial -bodies of the Member States would very probably leave the EU legal order in a subordinate position, at least in qualitative terms. Without going into details, and without seeking to pass judgment, I think that the characteristics of the case before us may provide a good illustration of the scenario I have just outlined. " constitute the two mainstreams polarizing the front of resistance of the national Constitutional and Supreme Courts. In the following pages, we will mainly focus our attention on the identity review since it can better convey the message of constitutional resistance, even if both these reviews concur to shape the borders thereof and are often considered together. 18 More specifically, to borrow the words of the German Bundesverfassungsgericht: "both the identity review and the ultra vires review are derived from Art. 79 sec. 3 GG but constitute independent types of review using different standards". Furthermore, the Karlsruhe judges highlighted that "the competence retained by the Court for both of these reviews must be exercised cautiously and in a way that is open to European integration (europarechtsfreundlich)". 19 To be precise, the choice to add the category of constitutional identity review to the already existing ultra vires act review is in itself part and parcel of the sui generis European constitutional narrative. While an ultra vires act always implies a defect in the act from the competence's point of view and, therefore, a possible declaration concerning the validity and/or the application of European law in all other Member States, a violation of constitutional identity works in a totally different way: as a matter of fact, this scrutiny is based on a "bipolar relationship" between one Member State and the EU and rests inevitably on a "joint effort of national and European courts". 20 3.1. THE LISSABONURTEIL: WHERE IDENTITY REVIEW BEGINS As a premise, before entering into the details of the more recent cases involving a dialogue with the European counterpart, it is important to recall that the key position acquired by the constitutional identity review was actually launched in the landmark judgment Lissabon-Urteil of the 18  BVerfG, concerning the compatibility of the new Lisbon Treaty with the German Constitution. As is well-known, before this historical decision, the BVerfG's control over EU law was limited to the ultra vires review (Maastricht decision of 1993). It should be noticed that the concept of constitutional identity did not arise out of the blue in the Lissabon-Urteil. In fact, the BVerfG had already sowed the seeds of the Verfassungsidentität in its Solange II decision (1986), which pointed at constitutional identity as "the fundamental architecture, the constitutive structures" of the German Basic Law (Grundgesetz). 21 Interestingly enough, the Karlsruhe Court buttressed this statement by means of an explicit reference to the "similar limits" set under the Italian Constitution and constitutional jurisprudence, 22 which had in turn construed the fundamental principles of the national constitutional order as a sort of red line that Community law must not dare to overstep in any way whatsoever.
Such identity clause in the making, to which both the BVerfG and the Italian Corte Costituzionale opened up their counter-limits doctrines originally grounded on fundamental rights protection, sounded thenceforth as a siren call for the constitutional jurisdictions of other EU Member States. For instance, in 2004 the French Constitutional Council first acknowledged constitutional identity as a limitation to the principle of unconditional primacy (and, thus, to the internal application) of EU legislation staunchly advocated by the CJEU case law. 23 24 According to the Tribunal Constitucional, those boundaries were echoed in the Constitutional Treaty itself, whose Art. I-5 -by adopting an expression now reflected in Art. 4(2) TEU -provided that "the Union shall respect the national identities of the Member States inherent in their fundamental structures, political and constitutional". 25 By the same token, a comparable approach can also be found in the case law of younger Constitutional Courts based in Central and Eastern Europe. 26 In this context, the joint reading of two judgments the Polish Constitutional Tribunal delivered in 2005 -as concerns, respectively, the law transposing the Framework Decision on the European Arrest Warrant 27  ..] or the lack of its explicit proclamation, justified in previous times the reserve against the primacy of Community legislation over national constitutions by well-known decisions of the constitutional courts of several Member States, in the so-called doctrine of dialogue between constitutional courts and the Court of Justice of the European Union". 25 Ibid., the Tribunal Constitucional stated that "the limits referred to by the reservations of said constitutional justifications now appear proclaimed in an unequivocal way by the Constitutional Treaty, which has adapted its provisions to the requirements of the constitutions of the Member States. Therefore, the primacy proclaimed in the Constitutional Treaty operates in the context of a legal order which is built upon values common to the constitutions of the states integrated into the Union and their constitutional traditions. " 26 Even though the scope of the present analysis does not allow to go into the details of the activism characterizing these jurisdictions, it is useful to bear in mind that, quoting the words of Sadurski, "one of the most striking features of the ongoing transitions to democracy in these societies is the spectacular growth in the role and prominence of constitutional courts and tribunals in shaping the new constitutional order". Furthermore, according to Habermas Against this background of an ever increasing horizontal cohesion, 32 the identity-based avenue of constitutional resistance vis-à-vis any potential encroachment on the very essence of national sovereignty becomes all the more central -and in a certain sense paradigmatic also for other European constitutional courts 33 -in the German decision concerning the constitutionality of the Lisbon Treaty.
Borrowing the words of the Lissabon-Urteil, 34 the German constitutional judge is entitled to review The new frontier of the well-known counter-limits theory assumes now the shape of the constitutional identity clause, thus expanding the competences of the Constitutional Court from the realm of fundamental rights to other essential issues pertaining the core of the State. In an exemplary way, the judgment at hand bluntly remarks also that there are five fundamental areas of law that have to remain close to the citizen and that directly shape the form of a constitutional State. 35 By and large, we could say that consti-tutional identity requires sovereignty of States both under international law and under constitutional law (i.e. an independent political community ruled by the democratic principle and with budgetary powers). 36 Be it as it may, in this judgment the BVerfG confirms itself as the ultimate arbiter, i.e. the guardian of the constitution, thus strengthening the judicial review conducted by constitutional courts. Indeed, the German Bundesverfassungsgericht even provides that, along with the progress of integration, the identity review can become increasingly important and hopes for the creation of a special procedure by the German legislator to carry out this control (paras. 240-241).
The reference to the s.c. Ewigkeitsklausel (eternity clause, ex art. 79.3 GG in connection with Art. 1 and 20 GG) is actually very important to start drawing the outline of constitutional resistance in Europe. The reader could be puzzled by the fact that the boundaries set for the EU integration are the same recognized for the domestic constitutional reform. For many good reasons.
First, according to this reading the European integration falls within the borders of the s.c. "poivoir constituent dérivé" and cannot go beyond that. It is, after all, a bold statement -maybe even just another version of the dualist reading of the relationship between the two orders -since it places the origin of the constituent power of the European integration strictly within the framework of the domestic (German) constitutions or, at least, it seems to subject the European integration to the conditions posed by the eternity clause. By the way, if we look at this statement from the EU perspective, the autonomy of the EU system is seriously questioned.
Second, as Cassese critically observed, placing this clause -originally born in a strictly national environment -in a multilevel context is a kind of functional distortion. As is well-known, the limits to constitutional reform were conceived in order to prevent any return to the dictatorship. On the contrary, here it is used to preserve the sovereignty of the German state and to prevent future further developments of the European Union, tional state to democratically shape itself are decisions on substantive and formal criminal law (1), on the disposition of the monopoly on the use of force by the police within the state and by the military towards the exterior (2), fundamental fiscal decisions on public revenue and public expenditure, the latter being particularly motivated, inter alia, by social policy considerations (3), decisions on the shaping of living conditions in a social state (4) and decisions of particular cultural importance, for example on family law, the school and education system and on dealing with religious communities (5). " that institution which was also set up precisely to prevent the return to dictatorships and European wars. 37 Strange but true.
Third, we could assume that the identity review is a kind of "counter-limits theory 2.0", that includes more generally the core element of a constitutional state and not just a catalogue of fundamental rights. Still, limits to constitutional reforms and counter-limits to the EU and international law are born in such a different context that it appears not possible just to merge them into each other. In this sense, it has been observed that also from a procedural point of view the identity review does not represent a kind of "wider" counter-limit, but a constitutional standard used to measure the consistency of the EU legal order with the German constitution. 38 It is not yet clear, though, what the potential legal consequences are of a judgment of this kind. Be as it may, we are dealing here with a kind of review which goes beyond the check of the respect for fundamental constitutional principles (understood as counter-limits) and which goes beyond the three judgments known as Solange I, Solange II and Maastricht-Urteil as well.
Last but not least -always aiming to show some traits of constitutional resistance -this kind of judgment often takes the appearance of a "sentenza-manifesto politico", 39 instead of a traditional decision with concrete and immediate legal consequences. It can be read as a warning for EU institutions as well as for the national legislature. And certainly, this kind of judgment conveys a message for the domestic ordinary judges, forcing them in these cases to call into question the Constitutional Court. Although the legal scholarship has already written extensively on this judgment, it is worth considering that authoritative scholars acknowledged in this statement the move from a "defensive constitutional pluralism" (in the age of the counter-limits theory) to an "aggressive constitutional pluralism". 40

BEYOND THE NATIONAL BORDERS: THE HORIZONTAL MIGRATION OF IDENTITY REVIEW
The analysis of the Lissabon-Urteil offers the opportunity to extend the scope of our study to a further, though still largely unexplored, dimension of European constitutional law. As a matter of fact, this seminal ruling of the BVerfG on the constitutional legitimacy of the Lisbon Treaty 37  allows to shift from the "vertical" perspective examined thus far, i.e. the relationship between the Luxembourg Court and the domestic constitutional jurisdictions, to a s.c. "horizontal" dimension of the national constitutional courts case law themself. 41 Looking at this judgment of the German Constitutional Court through the lens of comparative reasoning, can the concept of "Identitätskontrolle" carved out therein also be detected, mutatis mutandis, across the Lisbon case law of the French Conseil Constitutionnel, the Czech Constitutional Court and the Polish Constitutional Tribunal? 42 To what extent does the German model substantively match the understandings of constitutional identity that surfaced, meanwhile, in the foreign Lisbon-related jurisprudence?
By starting from the French case, the Conseil Constitutionnel first and foremost made clear that primary EU law must neither contain "a clause running counter to the Constitution", call into question constitutionally guaranteed rights and freedoms, nor must it "adversely affect the essential conditions of the exercise of national sovereignty", unless the Constitution is revised beforehand. 43 Between the lines of the French Lisbon ruling, even without being mentioned directly, constitutional identity looms, therefore, 41 With regard to this horizontal perspective, the analysis of which falls beyond the scope of the present work, it is worth mentioning the case law concerning the constitutional legitimacy of the Maastricht Treaty. As is well-known, several constitutional jurisdictions, such as the Danish Supreme Court, followed in the footsteps of the German Maastricht-Urteil in order to claim power to scrutinize whether an act of EU law exceeds the competences conferred upon the European institutions or not. Moreover, this judicial self-restraint of the Conseil Constitutionnel is confirmed by the fact that it avoided to point out which principles would concretely fall within the notion and the scope of constitutional identity. This implies that, in contrast to the reaction of their German counterparts, the French judges accorded the legislature a higher degree of deference to set identity-based limitations to further European integration. 44 A position that, in some respects, resembles the stance taken by the Conseil Constitutionnel can be recognized in the case law of the Czech Constitutional Court (Ústavni Soúd). In finding the contested treaty provisions to be compatible with the national constitution, the first Lisbon ruling of the Ústavni Soúd (2008) maintained that substantive limits to the transfer of sovereignty "should be left primarily to the legislature to specify, because this is a priori a political question, which provides the legislature wide discretion; interference by the Constitutional Court should come into consideration as ultima ratio. " (para. 109). 45 Accordingly, in response to a second petition regarding the constitutionality of the Lisbon Treaty (2009), the Czech justices bluntly distanced themselves from the BVerfG's activist approach to constitutional identity. 46 In open defiance of the Lissabon-Urteil, the Ústavni Soúd rejected the demand to draw up a catalogue of material competences that the State  49 This notion encompasses, in particular, a prohibition to transfer the competence to confer competence (s.c. "Kompetenz-Kompetenz") to the EU in matters which constitute the fundamental basis of the political system. In this connection, it can be observed that the Trybunal Konstytucyjny essentially followed in the footsteps of the Lissabon-Urteil by providing a -still non-exhaustive -list of inalienable powers which lie at the heart of state sovereignty. 50 On top of that, the Polish judges took a relevant step further, since they argued that national constitutional courts At a closer look, this statement paves the way for a twofold remark. The first one concerns the bold equivalence between the identity clause embedded in Article 4(2) TEU and the understanding(s) of national/ constitutional identity under construction in the legal frameworks of the 47 In this regard, the Court did not "consider it possible, in view of the position that it holds in the constitutional system of the Czech Republic, to create such a catalogue of non-transferrable powers and authoritatively determine 'substantive limits to the transfer of powers' , as the petitioners request" (para. 111). In addition to the issue of transfer of national competences to the EU, the Ústavni Soúd openly objected also to the BVerfG's argument regarding the multi-levelled character of representative democracy (paras. 137-138 As a result, the Polish Constitutional Tribunal here stands as a sort of Janus Bifrons. As a matter of fact, its declared openness towards the European integration echoes, on the one side, the German Europarechtsfreundlichkeit of the Lissabon-Urteil. 52 On the other side, the words of the Trybunal Konstytucyjny can be read as a kind of subtle call to arms for its foreign comrades, with the aim to point at a common front of resistance -this latter being united around the bulwark of national/constitutional identity -which defies the absolute primacy of EU law and its impact on the domestic legal systems. 53 What can be inferred, in a nutshell, from the Lisbon jurisprudence we have recalled so far is the ever-growing circulation of the paradigm of constitutional identity across the "European" case law of national constitutional courts. There is little doubt that the identity clause, which was originally enshrined in the Constitutional Treaty and was later codified in Art. 4(2) TEU, has led constitutional identity to gain momentum as a key narrative of a new delicate stage of the European constitutionalism. Notwithstanding the unavoidable divergences between the specific attempts that each court makes in order to clarify the meaning and the (often blurred) contours of this notion, the common denominator which underlies the Lisbon case law of national jurisdictions is their assertion of the constitutional identity "untouchability" as a cornerstone of the European constitutionalization process. 51 Accordingly, in a previous passage of the decision the Trybunal emphasized that "an equivalent of the concept of constitutional identity in the primary EU law is the concept of national identity" (para. As someone has acutely observed, the Lisbon-related decisions seem to take the form of a strategic move meant to enhance the constitutional courts' role as arbiters and gatekeepers of the domestic validity and/ or enforcement of EU law, thus tightening their grip on the advancement of European integration. 54 As it was noticed with reference to the Lissabon-Urteil, the emphasis that both the BVerfG and its foreign peers put on the "responsibility" of national parliaments towards the EU integration process may thus just be masking the fact that constitutional courts shall in any case retain the final word, inasmuch as they ultimately patrol the way the Member States' legislatures carry out their own duty. 55 Against this backdrop, it is now possible to look at the post-Lisbon landscape, in order to explore how such increasing focus on identity review as a crucial avenue of constitutional resistance has brought back the threat of a recourse to the counter-limits.

. A Nuanced Attitude: The Courts' Dialogue as a Neutral Territory of Serious Constitutional Clashes?
The question previously mentioned regarding the openness of national constitutional courts to accept the progress of the EU constitutional narrative finds some answers in a series of cases concerning possible violations of national constitutional identity.
First of all, it is important to start by saying that this analysis has a proper and sui generis legal environment, i.e. the use of the preliminary reference by the constitutional courts. As a matter of fact, the relationship between these latter and the European CJEU is no longer a remote dialogue since the domestic supreme courts decide to apply the procedure foreseen in Art. 267 TFEU. It is exactly this recent procedural evolution that brings to light a front of resistance to the EU constitutional narrative. From the procedural point of view, another common note underlying this front of resistance is a general attitude to build the rationale of the decision also on the different Member States' experiences, in order to strengthen the position of national constitutional courts before the CJEU. This judicial strategy is particularly clear in the Gauweiler case, when the Karlsruhe judge recalls that "a large majority of constitutional and supreme courts 54  of the other Member States shares the view of the Federal Constitutional Court that the precedence (of application) of Union law does not apply without limits, but that it is restricted by national (constitutional) law" (para. 140; likewise, Mr. R. case, para. 47 56 ), thus explicitly quoting a very long list of EU Member States' constitutional judgments on this issue. At the same time, it is not totally clear what kind of relevance these foreign cases may have on the specific matter at stake since, by and large, constitutional identity review has per se a case by case nature. In this sense, foreign precedents -and their possible dialogue undertaken with the CJEU -can be used as interpretative criteria by the constitutional courts, but cannot bind their judgments. After all, national constitutional courts consider their own concept of constitutional identity in an absolutely unique way, responsive to the constitutional traditions of that specific context.

THE IDENTITY REVIEW IN GAUWEILER:
TRIGGERING A TICKING BOMB?
The abovementioned Gauweiler case represents the first occasion in which the German constitutional judge requests that the CJEU verifies a possible contrast between the EU regulation (more specifically the OMT 56 While the dialogue between the BVerfG and the CJEU was interestingly taking place, the BVerfG gave another landmark decision on constitutional identity review: -"Outright Monetary Transactions" system) and the German constitutional identity. This complex legal saga passed first through the decision of the BVerfG to promote, with a ruling issued on January 14, 2014, its first order for reference to the CJEU. 57 Lastly, the CJEU replied with the decision of June 2015 58 and in 2016 the BVerfG closed the case. 59 The BVerfG historic decision to make its first reference for a preliminary ruling followed the pathway announced in its previous decision Mangold/Honeywell. In the OMT case, in fact, the Federal Court essentially mitigated the harsh criteria set out in the Lissabon-Urteil and stated that counter-limits would represent just a residual option, being applicable only after having referred the question to the CJEU, which has always to be allowed to rule on the possible conflict and eventually to neutralize it in advance. 60 If this judgment has been considered as a domesticated version of the previous Lissabon-Urteil, the reference for a preliminary ruling by the BVerfG was actually much less europarechtsfreundlich than expected. As a matter of fact, the Karlsruhe judges clearly highlighted that The clash between the two different interpretations of constitutional/national identity could not be more evident, and -at a closer looksuch difference was clear also with respect to the previous Lissabon-Urteil, where the two identity clauses were defined as going "hand in hand". 62 The word now passes to the CJEU: what does the judge sitting in Luxembourg reply to that BVerfG order?
First of all, even if many Member States asked the CJEU to dismiss the case as inadmissible since "the request already includes, intrinsically or conceptually, the possibility that it will in fact depart from the answer received" (Conclusions of Advocate General Bot, para. 36), the Luxembourg Court accepted the case on the ground of the principle of sincere cooperation (!). Moreover, the CJEU refrained from adopting the wellknown reasoning regarding the autonomy and primacy of EU law (also over the domestic constitutional law). Almost incidentally, it merely recalled that "a judgment which gives a preliminary ruling is binding on the national court, as regards the interpretation or the validity of the acts of the EU institutions in question, for the purposes of the decision to be given in the main proceedings". 63 The decision per se is strictly focused on substantive arguments regarding the OMT decision, showing that it falls within the European Central Bank (ECB) mandate and therefore cannot be considered ultra vires. In other words, instead of discussing ultimate authority in the European integration's constitutional design, the CJEU chooses the way of 61 BVerfG, Case No. 2 BvR 2728/13 of 14 January 2014, para. 29. In this respect, the BVerfG added that "the Court of Justice of the European Union treats the protection of national identity, which is required according to Art. 4 sec. 2 sentence 1 TEU, as a 'legitimate aim' which must be taken into account when legitimate interests are balanced against the rights conferred by Union law [...]. However, as an interest which may be balanced against others, the respect of national identity which is required according to Art. 4 sec. 2 sentence 1 TEU does not meet the requirements of the protection of the core content of the Basic Law according to Art. 79 sec. 3 GG, which may not be balanced against other legal interests. The protection of the latter is a task of the Federal Constitutional Court alone." Although it is not possible to discuss that here, it is worth recalling also the very interesting dissenting opinion on the issue of an identity review based on Art. 38 GG (for ultra vires acts). 62 Advocate General Bot -as we already mentioned at the end of para. 2 -points out very clearly that this is not a correct interpretation of relationship between the two legal orders on this matter at all, since the European integration progress reveals "a basic convergence between the constitutional identity of the Union and that of each of the Member States". As we already mentioned in this analysis, this crucial issue represents the battlefield of the European constitutionalism in the making. 63 CJEU, Peter Gauweiler and Others v. Deutscher Bundestag, Case C-62/14, para. 16. arguments strictly pertaining the specific issue at stake, partly accepting some of the interpretations suggested by the BVerfG's referral order. It goes without saying that this decision could be seen as a classic example of judicial restraint. 64 The Bundesverfassungsgericht closes then this saga with the appearance of another "sentenza-manifesto politico" but the substance -at the end of the day -is one of a (more or less) successful agreement with the CJEU. 65 More precisely, as regards the matter at issue, the BVerfG states that the OMT programme does not manifestly exceed the competences attributed to the ECB and does not manifestly violate the prohibition of monetary financing of the budget, if interpreted in accordance with the preliminary ruling of the CJEU. 66 With regard to the debated issue concerning the difference between the identity review undertaken by the BVerfG and the national identity review foreseen in Art. 4(2) TEU, the Karlsruhe Court links -surprisingly enough, if we consider its 2015 referral order -its identity review to the respect of national identity as enshrined in the EU treaties. Particularly, the principle of loyal cooperation is the natural framework of this harmo- , showing a milder version of the absolute principle of supremacy expressed in Melloni on the same issue at stake: "seen in this perspective, Aranyosi and Căldărau could very well be the outcome of an indirect judicial dialogue that took place in a particularly important and sensitive legal area that has been traditionally perceived as part of the core business of constitutional courts". 65 In the ruling of the German Constitutional Court the CJEU judgment is by no means exempt from explicit and at times harsh criticism, not addressed here since they deal with the merit of the OMT matters. Therefore, it has been observed that even if the Gauweiler case writes an important page of the "dialogue between Courts", yet a careful reading of the arguments shows how much that dialogue is anything but a polite conversation between gentlemen ( Faraguna, P., 2016, La sentenza del Bundesverfassungsgericht sul caso OMT/Gauweiler, Diritti Comparati Working Paper, no. 1, p. 10). 66 It is important to underline that some applicants' claims are declared inadmissible, since they directly challenge an EU act. This issue puzzles the reader, considering its previous case law regarding the fundamental rights' protection of German citizen also in case of a possible violation deriving from an EU act (see Maastricht-Urteil, for example). Nonetheless, the Court maintains this task within the borders of its scrutiny as "preliminary questions" if the EU act represents the basis of a German rule or if they could trigger the responsibility of the State in front of the EU institutions. ny between these two clauses. 67  , declared the Italian legislation inconsistent with EU law, to the extent that it lacked some specific criteria described in the judgment. In the meantime, however, first one in which a possible conflict with the supreme principles of the national constitutional order is evoked. At stake there is the debated reading of the CJEU judgment Taricco (8 September 2015). 70 The Supreme Court of Cassation and the Court of Appeal of Milan, in fact, considered that the rules established in the s.c. Taricco I decision contrasted with a number of supreme principles of the Italian constitutional order -above all the principle of legality in criminal matters, ex Art. 25 and Art. 101, 2 of the Italian Constitution and the general principle of legal certainty -and referred the case to the Constitutional Court which, in turn, asked for the intervention of the CJEU.
If the initiated dialogue seems at first sight to be the expression of a cooperative constitutionalism, then it unfolds in tones that end up overwhelming the Europeanist perspective. Without being able to enter into details of the case regarding a complex issue on VAT, it is enough to remember here that whenever both supranational and constitutional factors are at stake, the latter are invariably privileged, as a sign of a dualist perspective ultimately adopted by the Italian Constitutional Court.
Indeed, the sharp question that the Corte Costituzionale asked to the CJEU as to whether "the national courts should apply the rule even where it conflicts with a supreme principle of the Italian legal system" already receives a preventive and unequivocal answer in the affirmative within the referral order itself: in spite of CJEU's staunch defence of the primauté, Art. 4(2) TEU requires "to embrace the minimum level of diversity that is necessary in order to preserve the national identity inherent within the fundamental structure of the Member States". 71 the Italian government -after the CJEU decision and before the intervention of the Constitutional Court -adopted a reform law (Law 13 July 2015, No. 107, c.d. "buona scuola") partly satisfying the requests expressed in the CJEU decision. Therefore, the following judgment of the Italian Constitutional Court was -if we can say so -easier, since the legislative framework was already changed: see Even more sharply, with regard to the debated interpretation of Art. 4(2) TEU, the Constitutional Court observes that while the CJEU is entitled to define the scope of EU law, the requirement of assessing in detail whether this latter is compatible with the constitutional identity of each Member State has to be left to national authorities. As a matter of fact, the Court concludes -after having suggested in a very precise manner its reading of the issue at stake and a possible solution -by observing that "were this interpretation of Art. 325 TFEU and of the judgment given in the Taricco case to be correct, no grounds for contrast would remain and the question of constitutionality would not be upheld" (order n. 24/2017, para. 7). In other words: clear agreements, long friendship.
An authoritative scholar acutely noted that in this case the preliminary ruling -i.e. that institutionalised channel originally designed to foster a sincere and cooperative judicial dialogue -is transformed into a kind of ultimatum: EU law must be read in the light of the inalienable core of fundamental principles enshrined in the Italian constitution. This nucleus of fundamental principles, by the way, is quite extensive: it goes far beyond the common constitutional traditions, because it also protects the constitutional identity as a whole. We could have the impression of facing, therefore, a s.c. case of "primazia invertita" (reversed primacy). 72 This special use of the preliminary ruling procedure by the domestic constitutional/supreme Courts represents ultimately a common thread in the European constitutional Courts' resistance front.
Be as it may, this frank dialogue with the CJEU could also end up in a more specific identification of the fundamental right at stake: in fact, with extend beyond that core and end up hampering the construction of a peaceful future, based on common values, referred to in the preamble to the Nice Charter. The primacy of EU law does not express a mere technical configuration of the system of national and supranational sources of law. It rather reflects the conviction that the objective of unity, within the context of a legal order that ensures peace and justice between nations, justifies the renunciation of areas of sovereignty, even if defined through constitutional law. At the same time, the legitimation for (Article 11 of the Italian Constitution) and the very force of unity within a legal order characterised by pluralism (Article 2 TEU) result from its capacity to embrace the minimum level of diversity that is necessary in order to preserve the national identity inherent within the fundamental structure of the Member State (Article 4(2) TEU). Otherwise, the European Treaties would seek, in a contradictory fashion, to undermine the very constitutional foundation out of which they were born by the wishes of the Member States." (order n. 24/2017, 26 January 2017, para. 6). Interestingly, the Court also specifies that the proposed interpretation is "to preserve the constitutional identity of the Republic of Italy" and it is not aimed at infringing the requirement of uniform application of EU law (ibid., para. 8). 72 Taricco I), the CJEU appears concerned about ensuring that this obligation is achieved in the most respectful manner of the procedural autonomy of the Member State, read in light of that national identity being inherent in the fundamental constitutional structure. 74 A direct effect of this stance is the strong emphasis on the necessity that it is up to the national legislator to establish the rules allowing to fulfill the obligations under Art. 325 TFEU (para. 41). The CJEU has thus provided the Italian judges with the "most cooperative decision possible" 75 within the limits of compatibility with its own system, but it also carefully avoided entering into an in-depth -and thorny -debate as regards common constitutional traditions and the issue of constitutional identity. And sometimes silence is noisier than words.
Happily enough, on the 31 st of May 2018 the Corte Costituzionale easily closed the case stating that "the inapplicability of the 'Taricco rule' , as recognized by the M. A. S. judgment, arises 'not only from the Italian Constitution but in Union law itself ' and that the questions of constitutionality raised on the basis that the law was, instead, applicable, are unfounded." 76 While the judicial dialogue developed throughout the episodes of the Taricco saga can be read, at the end of the day, as an example of a fruitful (albeit sharp) interaction between the Italian judges and the CJEU, it is also useful to remind in our analysis other constitutional/supreme courts' decisions which, for many good reasons, "have been registered with some alarm". 77 We are here referring to the judgments given in 2012 by the Czech Constitutional Court (Holubec case) and in 2016 by the Danish Supreme Court (Ajos), both sharing the conclusion not to apply a CJEU judgment on the interpretation of EU rules. At the same time, some alarm 73 CJEU, M. A. S. and M. B., Case C-42/17, 5 December 2017. 74 More precisely, the obligation for national courts to disapply domestic legislation on limitation periods on the basis of the "Taricco rule", does not need to be met when it entails a violation of the principle of certainty of offences and punishments, because of the insufficient degree of certainty of the applicable law or of the retroactive application of a legal framework that envisages a harsher system of punishments than that in force at the time when the crime is committed. 75 On this point see Guastaferro has also been raised, as we will see, by the decision n. 22/2016 of the Hungarian Constitutional Court, which carried out both ultra vires and identity review of EU law.

. The Latest Counter-Reactions: Chronicle of a Domino Effect
In the aftermath of the entry into force of the Lisbon Treaty, alongside the aforesaid case law of the BVerfG and of the Italian Corte Costituzionale, a growing number of decisions witnesses a trend of wider horizontal circulation of the constitutional identity narrative in the jurisprudence of foreign constitutional/supreme courts. A first example is provided, in this regard, by the well-known 2012 Holubec judgment of the Czech Constitutional Court. 78 On that occasion, the Ústavni Soúd concluded that a CJEU preliminary ruling granting to Slovak nationals the right to receive a supplementary pension payment on the same terms as Czech nationals was ultra vires. 79 Regardless of the highly debated infringement of the principle of conferral of competences to the European Union, at a closer look it appears that Czech justices would actually deny the applicability of the Luxembourg Court decision also on the basis of the "abandonment" of one of the tenets underlying the domestic constitutional system, i.e. the principle audiatur et altera pars. 80 Furthermore, while not delving into an overt identity review, the belligerent legal reasoning of the Ústavni Soúd  conveyed the expectation that the CJEU "would familiarize itself with the arguments that respected [...] the constitutional identity of the Czech Republic, which it draws from the common constitutional tradition with the Slovak Republic". 81 A second -and equally famous -case of "disobedience" against a CJEU preliminary ruling on the interpretation of EU provisions can be identified in the 2016 Ajos judgment of the Supreme Court of Denmark (Højesteret). 82 In stark contrast with the interpretation given by Luxembourg, 83 the Danish judges found that an unwritten general principle of EU law -namely the prohibition of discrimination on grounds of age and the issue of its direct effect in disputes between private parties -must not take precedence over the principles of legal certainty and protection of legitimate expectations.
While much ink has been spilt mostly about the Højesteret's ultra vires declaration as concerns the horizontal direct effect of general principles, in this clash between the Danish Supreme Court and the CJEU we can ultimately grasp the signs of an identity-centred conflict. In other words, 81 Ústavni Soúd, Decision Pl. ÚS 5/12 (Slovak Pensions) of 31 January 2012, para. VII.
In addition to its ground-breaking outcome, the decision at issue is also interesting from a comparative perspective, as the judicial reasoning of the a principle being considered as a distinctive character of the Danish constitutional order (legal certainty and the related protection of legitimate expectations of the individual) comes into direct collision with another principle (non-discrimination on the ground of age) that the CJEU case law, in its turn, places at the heart of an EU constitutional identity in the making. 84 In fact, such confrontation leads to what can be construed as an ambivalent outcome: on the one hand, Ajos judgment stems from a judicial interaction with the CJEU -as it happened in Gauweiler as well as in the Taricco saga and unlike the Slovak Pensions case -by means of the preliminary reference procedure under Art. 267 TFEU; on the other hand, it is certainly true that through this decision the Danish Supreme Court joins an ever broader choir of constitutional jurisdictions which, in a more or less explicit way, resort to national/constitutional identity defence in order to set aside a preliminary ruling of the CJEU. Another piece of this counter-reactions domino effect can also be detected in the judgment that the Hungarian Constitutional Court (Alkotmánybíróság) pronounced in November 2016, 85 objecting to and challenging the European Council's decision 2015/1601 on the relocation of asylum seekers among the EU Member States for the purpose of tackling the refugee crisis. 86 In a nutshell, on that occasion the majority of the Hungarian Constitutional Court took the view that the transposal of the new quota system into the national legal order would be at variance with the fundamental rights and principles protected under the Fundamental Law of Hungary. Accordingly, the Alkotmánybíróság then structured its legal reasoning into a fundamental rights review and an ultra vires review, this latter being composed of a sovereignty and an identity control. 87 84 Zaccaroni, G., 2018 Interestingly enough, in tune with the comparative strategy that we have already encountered in Gauweiler, the Hungarian ruling on the EU Council's refugee distribution and settlement decision made explicit reference to the relevant case law of a series of foreign supreme and constitutional courts as concerns the relationship between EU law and their domestic legal systems. 88 At the end of such extensive overview including, among many others, the BVerfG's Solange jurisprudence, 89 the Maastricht-Urteil and the Lissabon-Urteil, the Hungarian judges adamantly claimed their power to For the first time ever, the Hungarian Constitutional Court wields thus the sword of national constitutional identity, granting leeway to carry out an identity review of -and eventually set aside -EU law measures. As we have seen, what stands out as an unprecedented move for the Hungarian constitutional justice does actually follow in the footprints of other foreign jurisdictions, in particular the BVerfG, which have also started using more and more frequently the paradigm of constitutional identity in their Europe-related case law. While seeking to align with the case law of other European constitutional courts and to derive further legitimacy from their counter-reactions to the alleged invasion of EU law, the Hungarian judges let it be understood their (at least formal) openness to establish a judicial dialogue with Luxembourg: the constitutional identity defence rests men, K., 2017, The Hungarian Constitutional Court and the concept of national identity, in Ianus, 15-16,  on Art. 4(2) TEU as well as on an "informal cooperation with the CJEU based on the principles of equality and collegiality, with mutual respect to each other". 90 In spite of this proclaimed rationale of cooperation with the CJEU, we should not neglect, as several scholars have pointed out, the dark side of the decision at hand. In fact, the Alkotmánybíróság equated the notion of constitutional identity entrenched in Art. 4(2) TEU with Hungary's constitutional (self-) identity, the content thereof shall be construed from case to case on the basis of the whole Fundamental Law. 91 In this respect, Halmai bluntly defined this manoeuvre as an "abuse of constitutional identity", i.e. a ruling that is "nothing but national constitutional parochialism, an attempt to abandon the common European constitutional whole"; 92 in a similar vein, Kochenov and Bàrd argued that the Hungarian interpretation of constitutional identity is "so vague that it can be considered as an attempt at granting a carte blanche type of derogation to the executive and the legislative from Hungary's obligations under EU law"; 93 likewise, Kelemen and Pech noted that the Court's reasoning made a selective use of comparative law in order "to justify nativist not to say xenophobic migration policy". 94 Taking such remarks into account, especially in light of the present rule of law debate involving first of all Hungary and Poland, it is more than legitimate to wonder whether this new version of the counter-limits made in Budapest might henceforth be applied, under the guise of a (still 90 Ibid., paras. 62-63. 91 In the decision at hand, the Court did not provide an exhaustive list of constitutional identity sensitive matters. However, it mentioned some important components thereof, such as "freedoms, the division of powers, republic as the form of government, respect of autonomies under public law, the freedom of religion, exercising lawful authority, parliamentarism, the equality of rights, acknowledging judicial power, the protection of the nationalities living with us". Moreover, the Court added that "the protection of constitutional self-identity may be raised in number of Eurosceptic constitutional/supreme jurisdictions would use the Karlsruhe's identity and ultra vires reviews ad libitum, whenever it comes to dealing with any sensitive topic that may be perceived as an encroachment on the sphere of national sovereignty.
The rise of such concerns about the damaging effects of a migration of the Second Senate's approach in the PSPP judgment is even more fuelled by the fact that the Weiss case carries with it a further degree of complexity in comparison to the past ultra vires declarations rendered, as we have seen, by the Czech Constitutional Court in Landtová and the Danish Supreme Court in Ajos. As a matter of fact, as Sarmiento perceptively noticed, in Weiss "the BVerfG is going well beyond its Czech and Danish counterparts, stepping into the shoes of the Luxembourg judge and directly reviewing the legality of an EU act in an area of exclusive EU competence". 103 That being so, what would concretely happen if any constitutional/supreme Court in the other twenty-six Member States started walking on the same argumentative path undertaken by the BVerfG -not least, the possibility of launching new infringement procedures against them -is still to be seen. Yet, it seems difficult to deny that the political and constitutional impact of such a feared chain reaction could irreparably jeopardise the EU integration project at its foundations. And in that case, to recall once again the words of the CJEU president, a Member State calling into question the primacy of EU law and engaging in a unilateral course of action "shows disrespect towards the other Member States and their peoples that continue to honour the Treaties on a reciprocal basis". 104 103 Sarmiento, D., 2020, An Infringement Action against Germany after its Constitutional Court's ruling in Weiss? The Long Term and the Short Term, (https://eulawlive.com/ op-ed-an-infringement-action-against-germany-after-its-constitutional-courts-ruling-in-weiss-the-long-term-and-the-short-term-by-daniel-sarmiento/

. Conclusions
"There is a great disorder under heaven ... ": is this situation excellent? The old saying -hinting at the idea that the disappearance of the old order offers the opportunity to build a new one -could probably be partly adapted to the present stage of the European integration process.
At the end of our analysis, what can first be inferred from the cases examined in this paper is that the identitarian discourse, after its wellknown "codification" into Article 4(2) TEU, has gained unquestionable centrality within both the domestic and the supranational jurisprudence over the last decade. In the post-Lisbon constitutional landscape, a number of activist constitutional/supreme Courts have not hesitated to carry out, as we have seen, their own identity review of EU law -even in its close connection with the ultra vires review -with ever-increasing ease and frequency.
Looking into this case law through the glasses of comparative analysis, it can be acknowledged that the migration of an identitarian vocabulary becomes part and parcel of the development of a common constitutional grammar which allows national constitutional/supreme Courts, on the one side, to interrelate with each other in a more systemic way; 105 on the other side, this phenomenon contributes to add a prominent brick to the panoply of argumentative tools that each national jurisdiction could use (and, at times, even potentially misuse) in order to strengthen its own position in the relationships with the CJEU. By analyzing this phenomenon from a long-term perspective, we cannot avoid the impression of being faced with the realization of the initial idea of setting limits to EU integration or, better said, of drawing fundamental constitutional borders to EU law.
How can one evaluate this new step? This recent case law highlights thus a growing tendency among domestic constitutional Courts to shape an idea of national constitutional identity that, as someone observed, emerges as a "counter-concept" to EU constitutional identity. 106 From this point of view, it is also by virtue of such horizontal circulation of the constitutional identity discourse that we have witnessed what Lustig and Weiler define as a "third wave of judicial review" within national legal orders: 107 that is to say, a stage of contemporary constitutionalism where the protection of national constitutional identity tends to prevail over international instances 108 -or, said in positive terms, where the protection of national constitutional identity becomes part and parcel of a serious conversation aimed to build a new phase of the European integration.
Be as it may, in so doing, national constitutional jurisdictions prove to be ready to draw red lines to the European constitutionalization process whenever this latter touches upon fundamental constitutional issues. In this perspective, we can certainly read these cases -last but not least, the PSPP decision of the German Constitutional Court -as a possible setback to the progress of European integration.
At the same time, however, we could also look at this case-law in the perspective of a dialogue between Courts: after all, the domestic constitutional judges decided not to avoid confrontation with their supranational counterpart, by asking the CJEU to intervene through the preliminary reference procedure under Art. 267 TFEU. To a certain extent, they actually recognize that the existing multilevel judicial mechanism can be applied also to constitutional -and, more specifically, identity-based -conflicts. It is precisely by means of a mutual interaction on the matter of constitutional identity that Courts are able to give substance to and set the boundaries of the inherently fluid concepts of national constitutional identity and EU constitutional identity, in order to avert clashes between two opposite legal stances in the most critical conflicts, as indeed it occurred in the Taricco saga. In this view we have also to witness a strong convergence between constitutional courts in the way in which they deal with these ultimate conflicts: even if every court and every legal order in Europe has its own legal tradition, one can clearly perceive an underlying common trend in dealing with the constitutional identity grammar. This phenomenon occurs not just for reasons of reciprocal influence between legal orders belonging to the same European project, but rightly shows a serious reflection on constitutional law per se as the process of European integration moves forward. After all, from the very beginning of the EU 107 To be more precise, the Authors conceive this third wave as a response and a reaction to a first wave, which consists of a series of "constitutional revolutions" within the domestic legal orders, and a second wave, whose essence "was the acceptance of international legal norms as hierarchically superior and thus the basis for judicial review by national courts". See Lustig, D., Weiler, J. H. H., 2018, p. 315 etc. 108 In particular, the Authors argued that "Resistance of domestic jurisdictions to international norms is, of course, a common phenomenon across time and across jurisdictions [...] What we are noticing as part of the third wave is the introduction of a new strand of reasoning and justification which uses the vocabulary of 'identity'". Ibid., p. 357.
foundation the "measure" of openness to European and international law characterizing some constitutional clauses enacted after the Second World War was left intentionally unsolved. 109 At the end of the day, the expression "constitutional resistance" is therefore referring to a double-edged sword: a kind of prism in which we can grasp lights and shadows of the European constitutionalism in its making.
A final remark with regard to the relations involving the judicial and the political powers within the Member States has to be made. It can be argued that the identity (alongside the ultra vires) review of EU law concurs to enhance the role of constitutional/supreme jurisdictions as primary actors of the European integration process. But are we really sure that the chosen constitutional setting -that is, of ultimate legal conflict debated in national constitutional Courts' rooms -is the best way to proceed forward along the path of European integration? Should the political arena, especially in a time in which the solidity of the integration progress appears more than ever under stress, leave the guidance thereof mostly in the hands of the constitutional jurisdictions and, as a consequence, of their ever-evolving case law?
In this context, it seems that a major risk would be not only to override the authority of the political subjects but, as the recent Weiss case demonstrates in an exemplary way, also to put them in an even tighter spot: choosing between loyalty to the domestic constitutional/supreme Court and compliance with the CJEU's case law. 110 It is not by accident that this quandary eventually emerges to its full extent against the backdrop of the concept of constitutional identity, which by its nature lies at the heart and, in the meantime, stretches to the edge of the national legal order. Whether the situation is truly "excellent" in order to advance to a new phase of European integration or not -that is to say, whether this kind of conflicts in front of national constitutional judges will strengthen or weaken the Member States' openness to the European integration process -is a story still to be written. : USTAVNI  SUDOVI I TEST SUKOBA USTAVNOG IDENTITETA Marco Galimberti, Stefania Ninatti REZIME Novija praksa ustavnih sudova država članica Evropske unije, koja se tiče sukoba ustavnog identiteta unutar Evropske unije, naglasila je snažno približavanje nacionalnih ustavnih sudova u načinu na koji tretiraju te sukobe: čak i ako se pođe od toga da svaki sud i svaki pravni poredak u Evropi ima svoju pravnu tradiciju, zajednički trend u tretiranju ustavnog identiteta jasno je uočljiv. Cilj ovog rada je da ukaže na sve već i intenzitet otpora ustavnih sudova pravu Evropske unije i proceni ustavne implikacije tog otpora na proces evropskih integracija.