Abstract

Counterlimits and identity-related arguments that oppose national constitutional interests to the primacy of EU law are not a novel notion in EU and national constitutional law. However, recent developments trace a shift from theories of counterlimits to practice. This article offers an overview of these recent developments and aims at locating them within a broader theoretical picture. The article argues that constitutional identity is essentially linked to the principle of openness of the Constitution, which characterizes contemporary European Constitutions. Both constitutional identity and the principle of openness should be interpreted not as rules (i.e. following the all-or-nothing fashion): on the contrary, the article argues that these should be balanced as principles. However, the article concludes that judicial balancing proves an effective safeguard only when specific constitutional identities are at stake, and not when the core principles of constitutionalism are under attack.