The good, the bad, and the ugly: national Constitutional Courts and the EU constitutional identity

This article offers an analysis of three judgements concerning the relationship between the Court of Justice of the EU and three EU national Constitutional Courts. The judgments, from the Danish Supreme Court and the German and Italian Constitutional Courts, where occasions where the latter Courts have threatened to oppose to distinctive elements of the EU constitutional legal order. These elements can ultimately lead to the theorisation of an EU constitutional identity. In particular, this article analyses the Dansk Industri judgment of the Danish Supreme Court, where the Danish court decided not to apply a preliminary ruling of the Court of Justice declaring the horizontal direct effect of the principle of non discrimination on the ground of age; the OMT judgment of the German Constitutional Court, where the German Court, after having threatened to declare the ECB OMT programme as ultra vires decided to accept the functional interpretation of the principle of conferred powers at the conditions established by the Court of Justice in the Gauweiler judgment; and the request for a preliminary ruling made by the Italian Constitutional Court in the Taricco II (M.A.S. and MB) judgment, where the Court of Justice has ruled on the balance between the primacy of EU law and the constitutional principle of legality.