The Potential of Article 4(2) TEU in the Solution of Constitutional Clashes Based on Alleged Violations of National Identity and the Quest for Adequate (Judicial) Standards

The contribution aims at determining the added value, if any, of Article 4(2) Treaty on European Union (TEU) in the prevention and solution of constitutional conflicts related to the alleged violation of national identity. To that end, the article considers the growing tensions in the dialogue between constitutional courts and the European Court of Justice (ECJ), in particular those emerging from the Gauweiler and M.A.S. and M.B. cases, and examines how the Luxembourg judges have interpreted and applied the identity clause vis à vis challenges based on the need to protect national prerogatives. The contribution thus dwells on the nature and scope of Article 4(2), TEU in light of the principles of conferral, loyal cooperation, subsidiarity and proportionality. Based on the case law following the entry into force of the Lisbon Treaty, and the recent disquietude manifested by the German and Italian constitutional courts, the article finally advocates the elaboration of a more restrictive notion of national identity by the ECJ, as well as the development of clearer rules of conflict when the constitutional specificities of the Member States are (allegedly) on a collision course with EU law.