A story of opening up

As is well-known, the ItCC’s approaches to EU and ECHR laws - and consequently to the Court of Justice of the EU (CJEU) and to the European Court of Human Rights (ECtHR) - have traditionally been distinct from one another.

This is partly due to the differences (both historical and current) in the institutional features of the two European legal orders, the quality of their supra-nationalism, and their degree of integration with national systems - in particular with the Italian one. These different reference frameworks clearly resonate in the ItCC’s divergent attitude towards EU and ECHR legal orders. Moreover, since the constitutional reform of 2001, Article 117 of the

Italian Constitution (“Legislative power belongs to the state and the regions in accordance with the constitution and within the limits set by European Union law and international obligations”) textually provides for a disparity between EU law and other international public law sources. Although the meaning of this article is far from settled, its new version has offered an additional basis for distinct treatment of the EU vis-à-vis ECHR law. As of today, the two evolutionary paths can be briefly summarised as follows.

On the EU side, the ItCC has long challenged EU primacy. Today, whilst preserving its ultimate authority on the national constitution, the ItCC recognises the primacy of EU over national law, and largely entrusts the task of upholding EU primacy to ordinary judges, who can directly submit requests for preliminary rulings to the CJEU and disapply national rules conflicting with EU law. However, the Court has retained the exclusive power to check the consistency of the Italian legal system with EU law in cases involving indirectly effective EU law and in the so-called direct proceedings. [1] It was indeed in the latter context that the Court, in a pioneering decision, ceased what was dubbed its 'self-exile’ from (explicit) dialogue with the CJEU; in 2008, the ItCC raised, for the first time, a preliminary question under Art. 267 of the Treaty on the Functioning of the European Union. Three further important requests for preliminary ruling were lodged by the ItCC in incidental proceedings in 2013, in 2017 and in 2019.

On the ECHR side, with its 2007 révirement, the Court acknowledged that the ECHR, as authoritatively interpreted by the ECtHR, enjoys a higher status than domestic law, and that its rules are 'intermediate laws’ or 'interposed nonns’ (norme interposte) which can be used under Art. 117 of the Constitution as a parameter of review of the constitutionality of national law. Yet the ItCC also maintains that there are constitutional limits to the application of the ECHR (and of ECtHR case law) in the domestic legal system. The Court keeps affirming its monopoly to review the compatibility of national legislation with the Convention and its jurisprudence.[2]

This review of the ItCC’s approaches to EU and ECHR legal orders gives a glimpse of the multi-layered and pluralistic character of contemporary constitutionalism. As with other European constitutional courts, the ItCC is caught between the need for constructively favouring European integration and facilitating the embeddedness of EU and ECHR laws in the domestic legal system, on the one hand, and the task of defending the norms and values underlying the domestic constitution, as well as its own institutional prerogatives, on the other hand.11 The dynamic of this complex architecture of multilevel bridging is based on the varying relationships (of cooperation, accommodation, dialogue, mutual reinforcement, but also of defence, contestation, and resistance) between the ItCC and the other relevant subjects of the European legal space - from supranational courts and institutions to the domestic parliament, government, judiciary, and constituency. But how do these relationships concretely unfold, through what arguments, and how often? What role does the ItCC actually carve out for itself within the European legal space? The following statistical scrutiny of the ItCC’s case law from 2016 aims to give us a picture that might help answer the above questions. Before getting to the core of the analysis, however, a few caveats are necessary.

  • [1] M. DE VISSER, Constitutional Review in Europe. A Comparative Analysis, supra fn. 3,259; see also ItCC judgments 269/2017 and 20/2019. 2 G. MARTINICO, F. FONTANELLI, The Hidden Dialogue: When judicial Competitors Collaborate, in 8 Glob. Jur., Issue 3 (Advances), Article 7, 1 (2008); G. MARTINICO, Judging in the Multilevel Legal Order: Exploring the Techniques of ‘Hidden Dialogue’, in 21 King’s L. J. 257 (2010). 3 ItCC order 103/2008. At that time, only the Belgian, the Austrian, and the Lithuanian Constitutional Courts (respectively, in 1997, 1999, and 2007) have lodged preliminary references to the CJEU. 4 sCp. ItCC orders 207/2013, 24/2017 (on which see below, esp. n. 7), and 117/2019. 5 ItCC judgments 348 and 349/2007; see also, more recently, ItCC judgments 24 and 25/2019.
  • [2] See, for all, T. GROPP!, La jurisprudence de Strasbourg dans les decisions de la Cour constitutionnelle italienne. Une recherche empirique, supra fn. 4,5-12. 2 “On these functions, see A. MAZMANYAN, P. POPELIER, W. VaNDENBRUWAENE, Editors’ Introduction, supra fn. 1, 8-10; with specific reference to the ItCC, T. GROPP!, The Italian Constitutional Court: Towards a ‘Multilevel System’ of Constitutional Review?, in A. HARDING, P. Leyland (eds.), Constitutional Courts: A Comparative Study, London, Wildy & Sons Ltd, 2009, 145-147. 3 It is especially so in the field of comparative constitutional studies. For a review of 4 the literature, see A. MEUWESE, M. VERSTEEG, Quantitative Methods for Comparative 5 Constitutional Law, in M. ADAMS, J. BOMHOFF (eds.), Practice and Theory in Comparative Law, Cambridge, Cambridge University Press, 2012, 230-257; R. HlRSCHL, Comparative Matters. The Renaissance of Comparative Constitutional Law, Oxford, Oxford University Press, 2014, 268-281. 6 “For a critical review, see M. INFANTINO, Global Indicators, in S. CASSESE (eds.), Research Handbook on Global Administrative Law, Cheltenham, Edward Elgar Publishing, 2016, 347-367.
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