The Italian Constitutional Court and the EU law Constitutional Law A.Y. 2016/17

Italian Constitution and international law (I) Art. 10 “The Italian legal system conforms to the generally recognised rules of international law.” […] Art. 80 The Houses authorise by law the ratification of international treaties which are of a political nature, or which call for arbitration or legal settlements, or which entail changes to the national territory or financial burdens or changes to legislation. Art. 11 “[…] Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations”

Italian Constitution and international law (II) Dualist approach International and national legal system are conceived as autonomous «general recognised rules of int. law» => constitutional rank (1948-2001) International treaties (including Ecs treaties) enjoy the rank of the legislative act of ratification

Italian Constitution and international law (III) Art. 117.1 Italian Constitution (amended in 2001): “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations” «EU legislation» and «international obligations» as limit to the legislative power

Examples from other Constitutions Art. 24.1 German Basic Law (1949): “The Federation may by a law transfer sovereign powers to international organisations Art. 23.1 German Basic Law (amended in 1992): “With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. […]. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, […], shall be subject to paragraphs (2) and (3) of Article 79.” Art. 8.1 Polish Constitution (1997): “The Constitution shall be the supreme law of the Republic of Poland ”

Collision rules - criteria Hierarchical - lex superior derogat inferiori E.g.: the Constitution takes precedence over parliamentary statutes => annulment Chronological – lex posterior derogat priori E.g.: more recent law prevails over (abrogates, overrules) an earlier law of the same legal force => repeal (abrogation) Competence – division of competences between levels of government (State/Regions)

Which “EU sources”? Difficulty to construct a linear overview of the European Union’s system of legal sources Primary sources, founding Treaties (diritto convenzionale) Secondary sources, sources that derive from treaties (diritto derivato): non-binding acts (reccommendations and opinions) binding acts (regulations, directives, decisions) soft laws (f.e.: green papers, white papers, codes of conduct , …)

ECJ approach: “primauté communautaire” 1963: Van Gend en Loos, C. 26/62 “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals” 1964: Costa vs. ENEL, C 14/1964 (on the basis of the unlimited duration of the Community, the autonomy of Community power): “By creating a Community [with] its own institutions, its own personality, its own legal capacity, the member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves ” It is impossible for the States to set up a subsequent unilateral measure against a legal order which they have accepted on a reciprocal basis

1978: Simmenthal, C 106/77 “Every national court must […] apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule” Member States have the duty to set aside national provisions incompatible with Community law (also subsequent provisions, potentially even constitutional ones) 1990-1991: Factortame litigation “whether a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law, must disapply that rule ” National courts have the duty to secure the full effectiveness of Community law, even by creating a national remedy where none had previously existed

Italian Constitutional Court A complex “European journey” composed of (at least) 4 steps Step 1: application of the chronological criteria Decision 14/1964 Art. 11 Const. as the disposition allowing limitation to sovereignty, but it does NOT derogate to the order among sources of law conflicts between European and national law are, in the end, conflicts between two domestic sources: the one at issue and that authorizing the ratification of the European Treaty European norms, once entered in the domestic legal system take the rank of legislation (because is the Law that ratified the Ecs Treaties to permit their application) => application of the most recent source

Step 2: application of the hierarchical criteria Decisions 183/1973 and 232/1975 Same theoretical framework, very different conclusion Art. 11 Const. as the disposition allowing limitations to sovereignty By contrasting with the European norm, domestic norm is actually infringing Art. 11 Cons => domestic norms contrasting with European ones have to be submitted to the Constitutional Court in order to be annulled (remember: the system of judicial review of legislation is centralised!) => unconstitutionality (to be declared by Const. Court) of the domestic norm infringing EU one

Decision 170/1984 (so called Granital decision) Step 3: disapplication as a consequence of the criteria of the competent lawmaker Decision 170/1984 (so called Granital decision) The intervention of the constitutional Court would affect the direct applicability of European law National judges must appeal the ECJ first and apply directly European law BUT the Constitutional Court remains the guard of the “supreme principles”

Step 4: the counter-limits doctrine The disapplication of domestic law is not absolute or necessary in any case The constitutional principle of art. 11 (admission of limitations to State’s sovereignty) is subject to conditions listed in the same article: With regard to the means: conditions of equality with other States With regard to the ends: necessity in order to ensure peace and justice among the Nations Moreover, Art. 11 has to be balanced with other constitutional values and principles: limitations to sovereignty have their counter-limits when supreme principles of the Constitution are at stake (decision no. 1146/1988) that cannot be modified even through constitutional revision

Supremacy, primacy or precedence? Art. I-6 Constitutional Treaty (rejected in 2005): “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States” Lisbon Treaty, Declaration 17 concerning primacy: “The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. ” National law are neither abrogated, nor annulled by EU law EU law “takes precedence over” national law National law has to be set aside (disapplication) => NOT repeal, NOT annulment