Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

• Date: 01 July 2019
• DOI: http://doi.org/10.1111/eulj.12333
• Author: Daniele Gallo
• Published date: 01 July 2019

ORIGINAL ARTICLE

Challenging EU constitutional law: The Italian

Constitutional Court's new stance on direct effect

and the preliminary reference procedure

Daniele Gallo

*

Abstract

This article seeks to examine the relationship between EU law and the Italian legal order in light of

the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core princi-

ples. When fundamental rights are at stake, three assumptions are challenged: the determination

of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the

disapplication of conflicting national law; judges have the discretion to refer preliminary references

to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search

for a balance between sovereignty and supranationality is undermined by the ICC's new resistance

to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is

the result of an unjustified ‘argumentative self‐restraint’of the ECJ vis‐à‐vis the evolution of EU

foundational principles.

1|INTRODUCTION

This article focuses on the way the Italian Constitutional Court (ICC) has sought to reframe the relationship between

EU law and the Italian legal system in two recent and rather surprising rulings.

Decision no. 269 of 14 December 2017

1

and and Decision no. 115 of 31 May 2018

2

raise crucial issues of

European Union (EU) law, in particular as to what extent, with regard to fundamental rights, European primary

and secondary law, as well as the jurisprudence of the European Court of Justice (ECJ), can penetrate the Italian

legal order. The question is whether and how a truly composite and pluralist system of fundamental rights

*

Associate Professor (tenured) of EU Law, Law Department, LUISS, Rome, Italy; Recurring Adjunct Professor of EU Law, American University Washington

College of Law, Washington, DC, USA; Professeur invité, Université Panthéon‐Assas, Paris, France. I am grateful to the journal's three anonymous reviewers

as well as to Chiara Amalfitano, Filippo Fontanelli, Michele Massa, Fernanda Nicola, Giorgio Repetto, Harm Schepel and Robert Schütze for their comments

on the draft and/or on the current developments in the Italian Constitutional Court's case law.

1

ICC, Decision no. 269 of 14 December 2017, available in English at www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_269_

2017_EN.pdf (accessed 10 December 2018).

2

ICC, Decision no. 115 of 31 May 2018, available in English at www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_2018_115_EN.

pdf (accessed 10 December 2018).

Received: 10 March 2019 Revised: 8 April 2019 Accepted: 17 May 2019

DOI: 10.1111/eulj.12333

434 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:434–456.wileyonlinelibrary.com/journal/eulj

protection

3

can be put in place without undermining the need for uniformity, consistency and effectiveness of EU

law. In other words, how to strike a balance, in terms of judicial cooperation, between sovereignty and

supranationality.

In this context, the article contends that the two judgments mark a revolution in the interaction betweenthe legal

systems of the EU and Italy. In fact, they call into question the scope and extent of the principles of primacy, direct

effect and effectiveness of EU law when fundamental rights are at stake. Arguably, this stance is not simply the result

of a reaction to a supposedly undue, excessive and intrusive action of the ECJ into the domestic sphere of EU Mem-

ber States. Instead, as will be demonstrated,

4

the activism of the ICC is encouraged and triggered by the lack of legal

certainty and clear stances on the relationship between EU law and national legal orders characterising EU

jurisprudence.

What makes Decision no. 269/2017 interesting is its obiter dictum on the subject of dual preliminarity.

5

The

key problem is what national courts should do when they rule on disputes that may raise questions of constitu-

tionality (concerning the validity of a national provision) to be submitted to their own constitutional court and,

at the same time, questions of compliance with EU law. In this respect, the ICC's position opens a new chapter

in the history of the relationships with the ECJ due to the fact that, according to the Court, national judges should

always submit questions of constitutionality rather than or before referring the matter to the Court of Justice by

virtue of Article 267 TFEU, irrespective of whether EU directly effective provisions are at stake (and disapplication

is required). Furthermore, Decision no. 269/2017 is revolutionary because it prevents ordinary judges from refer-

ring to the ECJ the same questions that had been submitted previously to the ICC through the process of consti-

tutional review.

Decision no. 115/2018 is especially interesting, because the ICC addresses the principle of legality in criminal law,

in particular with respect to the nature and limits of the so‐called ‘counter‐limits’.

6

This term refers to a doctrine

developed by the ICC in its case law, according to which EU law will not prevail over conflicting national law where

its application results in a violation of any of the supreme principles of the Italian constitutional order.

7

In this regard,

the ICC's decision deserves attention because it implicitly posits that the investigation over the internal (direct) effect

of an EU law provision could—and possibly must—be undertaken by national (constitutional) courts, not only by the

ECJ.

In Decision no. 269/2017, the ICC relies on procedural considerations to take on powers that on closer inspection

do not belong to it, with the ultimate aim to counter the risk of being ab origine marginalised by ordinary courts

through the preliminary ruling procedure. In Decision no. 115/2018, the Court de facto applies a counter‐limit at

the substantive level and, in doing so, argues that this finds its justification not only in Italian law but in EU law itself,

as interpreted by the ECJ.

Although Decision no. 115/2018 makes no express reference to Decision no. 269/2017, they follow the same fil

rouge: the ICC's intention to concentrate in its own hands powers and functions that in fact, under EU law, are owned

by the ECJ. Even if the underlying aim of the ICC was, in principle, to avoid its own disempowerment in relation to

the protection of fundamental rights, this ‘centralising’attitude, considering the manner in which it is implemented,

3

For a recent discussion of constitutional pluralism, see G. Davies and M. Avbelj (eds.), Research Handbook on Legal Pluralism and EU Law (Edward Elgar,

2018); for an Italian and comparative constitutional law perspective, see D. Paris, ‘Limiting the “Counter‐Limits”: National Constitutional Courts and the

Scope of the Primacy of EU Law’(2018) 10 Italian Journal of Public Law, 205.

4

See below, Section 6.

5

For a general discussion of the rationale and limits of dual preliminarity in Italy, see M. Cartabia, ‘Taking Dialogue Seriously’, Jean Monnet Working Paper,

2007, available at http://centers.law.nyu.edu/jeanmonnet/papers/07/071201.html; G. Martinico, ‘Multiple Loyalties and Dual Preliminarity: The Pains of

Being a Judge in a Multilevel Legal Order’(2012) 10 International Journal of Constitutional Law, 871.

6

The term ‘controlimiti’was used for the first time by P. Barile, ‘Ancora su diritto comunitario e diritto interno’,inStudi per il XX anniversario dell'Assemblea

costituente (Vallecchi, 1969), 45. On this point, see Paris, above, n. 3.

7

On this doctrine, see M. Cartabia, Principi inviolabili e integrazione europea (Giuffrè, 1995) and P. Faraguna, Ai confini della Costituzione. Principi supremi e

identità costituzionale (Franco Angeli, 2015).

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