European relationality at work
What emerges from the analysis of the contents of these 39 decisions by the ItCC which resort to arguments based on EU and/or ECHR law is the variety of judicial postures towards European supranational laws. This variety, in 2016, ranged primarily from the re-affirmation of the autonomy of the Italian constitutional system to the deference to European guidelines, to a cautious resistance.
Pride and boundary-marking
The emphasis on the self-sufficiency of the domestic constitutional legal order vis-à-vis European ones is perhaps the most evident attitude running across the ItCC’s 2016 case law.
While acting as a bridge between the domestic and European legal orders, the ItCC is always preoccupied with reminding its readership of the principal focus of the judicial review function, which is verifying the compatibility of the domestic legal system with the national Constitution - as it is in stressing its exclusive competence in this regard. Such a self-affirming penchant clearly emerges from the many decisions in which the ItCC underlines that, as far as the national constitution is concerned, it is the only body which can authoritatively adjudicate on the issue, even if this implies interpreting EU law or ECtHR’s rulings. For instance, with regard to the ECHR system, the ItCC recognizes that “ECHR provisions should be applied according to the interpretation given by the ECtHR”, yet adds that “it is within the competence of this court to appreciate how and to what extent the interpretation offered by ECtHRfits the domestic constitutional order”.
The ItCC has other rhetorical strategies to downsize the centrality of European laws in domestic constitutional adjudication. In some decisions, the ItCC takes into account European supranational laws, but, rather than dealing with them per se, it reconstructs them through the lens of its jurisprudence on these very same laws. In judgment n. 39/2016 (concerning the constitutionality of a regional law, allegedly violating an EU Directive), the ItCC rejected the request for review because, inter alia, the examined law did not contrast with the rationale of the Directive as reconstructed by the same ItCC in its own previous case-law. In its judgment n. 132/2016 (in which the ItCC refused to uphold a claim challenging the constitutionality of a provision on employees’ right to holiday, allegedly conflicting with the national Constitution and the ECHR), the ItCC reviewed many ECtHR decisions, especially the ones against Italy, through the medium of its own previous jurisprudence on the ECtHR’s case-law. In other words, in the ItCC’s reasoning, ‘European law’ often becomes equivalent to ‘European law as interpreted by me.’ Hence, the consideration for the European legal order is actually turned into a re-affirmation of the ItCC’s competence to interpret the laws that are relevant before it.
At other times, as we already saw, the ItCC reaffirms the boundaries of its exclusive competence by basing its entire reasoning - in spite of the parties’ alleged violations of EU and/or ECHR law - on the Italian context only, relegating the analysis of European supranational laws to a concise passage at the end of the holding. One of the best illustrations of such a style of reasoning comes from judgment n. 12/2016, regarding the constitutionality of a provision of the Code of Criminal Procedure on the right of the victim of a crime to claim compensation from the tortfeasor in criminal proceedings. Although the constitutional challenge was partially grounded in the conflict between the Code’s provision on the one hand, and EU and ECHR law on the other hand, the ItCC rejected the request on the basis of a lengthy discussion on the historical origins and actual developments of victims’ rights in criminal trials under Italian law. It is only at the very end of the opinion that the ItCC briefly referred to EU and ECHR law, in order to concisely conclude that the alleged conflict did not exist.
The same structure - implying an in-depth analysis of the Italian framework, followed by a collateral review of supranational rules - is common to many other decisions. Still at other times, the ItCC avoids direct confrontation with European supranational laws, especially the ones stemming from the CJEU or the ECtHR, by engaging in a common-law-like, detailed distinguishing of precedents. The ItCC was thus able to put aside the issue of the alleged incompatibility between a statutory provision on public employees and EU Directive 2000/78/EC, as interpreted by the CJEU, in the name of the factual and legal differences between the case at issue and the one considered by the Luxembourg court.50 Along the same lines, when requested to review the alleged conflict between article 649 of the Code of Criminal Procedure and the prohibition of double jeopardy under the Constitution and the ECHR, the court dismissed the ECHR-based challenge by concluding that, “to date, ECtHR case law, since it always remains related to the specificities of the cases it stemmed from [...], does not allow to identify [sic] with certainty any principle [... ] that might help in evaluating the compatibility of Art. 649 C.P.P. with the Italian Constitution”.’1 Similarly, when examining the constitutionality, in light of the ECHR, of a decision taken by the Prime Minister against a religious association, the Court refused to conclude that the decision was in violation of the ECHR. The ItCC stressed that the ECtHR’s case-law on freedom of religious associations invoked by the parties concerned states with a regulation of religious associations much more detailed than the Italian one; therefore, this case law was not relevant to the Italian context.
-  ItCC judgment 187/2016, n. 11-12. 2 ItCC judgment 193/2016, n. 3. 3 The same reasoning underlies ItCC orders 165 (affirming the constitutionality of an electoral law) and 207/2016 (affirming the constitutionality of a criminal procedure law).
-  2 Cf. ItCC judgments 52 (esp. n. 5.1), 57, 90 (esp. n. 4), 95, 203/2016 (esp. n. 6.2 and 6.4, last sentences). ,0ItCC judgment 133/2016 (on CJEU’s judgment of 6 November 2012, C-286/12, Commission v. Hungary). ” ItCC judgment 200/2016.
-  ItCC judgment 52/2016. ” ECtHR, Grand Chamber, 27 August 2015, 46470/11, Parrillo v. Italy. 2 ’■'ItCC judgment 84/2016, n. 9 and 11. 3 KIbid., n. 7, 9,11.