Playing poker

The power logics examined in this paper at the domestic level can also be observed in the interaction between the Italian Constitutional Court and the European Courts. For reasons of brevity, we will confine our analysis to the relationship with the Court of Justice of the European Union.

Patricia Popelier stresses in this book that, in principle, all constitutional courts in Europe - and not just the Italian one - are part of an interrelationship with the European Courts that reflects attitudinal elements, which Marta Infantino calls “pride, respect, and resistance”. Surely, in the European legal space, “relationality” is a “device” of all constitutional courts, rather than a peculiar feature of the Italian Constitutional Court. If we look at the way in which this interaction takes place, however, it seems to us that a specific “Italian style” can be singled out. Once again, the comparison with the opposite “German style” can help to capture these features.

It is worth noting that the Italian Constitutional Court enters the European judicial dialogue with a significant handicap. Unlike the German Constitutional Court, and most of the constitutional courts in Europe, it does not have jurisdiction to review the constitutionality of international treaties, including EU Treaties, before their ratification. This means that the Italian Constitutional Court cannot express ex ante its general view on the constitutional limits of European integration. There is no Maastricht or Lisbon decision in the Italian constitutional jurisprudence. Unlike the German Constitutional Court, the Italian Constitutional Court cannot interfere with European treaty-making; it can only step in when a concrete conflict between EU and constitutional law arises before a court, and only when this conflict finds its way to the Constitutional Court.

Despite this limit, the Italian Constitutional Court was able to carve out a significant role in the European judicial dialogue on fundamental rights, as the Taricco saga has recently made clear. The latter can be taken as the best example of an “Italian style” of multilevel dialogue. But let us first examine the “German style”, so that the Italian one will become clearer.

When confronted with an actual or foreseeable conflict between EU and constitutional law, the German Constitutional Court tends to instruct the Court of Justice clearly on the limits within which it is prepared to accept the primacy of EU law. The German Constitutional Court sets the boundaries, and the Court of Justice should not overstep those boundaries.

Consider, for example, the reaction of the German Constitutional Court to the broad reading of the Charter’s scope of application in Akerberg Fransson.Two months after the Court of Justice’s judgment, the German Constitutional Court, in an obiter dictum to its judgment on the counterterrorism database, spelled out the following: “[Akerberg Fransson] must not be read in a way that would view it as an apparent ultra vires act or as if it endangered the protection and enforcement of the fundamental rights in the Member States [...] in a way that questioned the identity of the Basic Law’s constitutional order [...]. The decision must thus not be understood and applied in such a way that absolutely any connection of a provision’s subject-matter to the merely abstract scope of Union law, or merely incidental effects on Union law, would be sufficient for binding the Member States by the Union’s fundamental rights set forth in the [Charter]”.[1] The German Constitutional Court leaves little room for interpretation: Akerberg Fransson must be interpreted narrowly, otherwise it will be declared ultra vires.

A similar approach marks other judgments of the German Constitutional Court as well. The detailed catalogue of the State powers that cannot be transferred to the EU in the Lisbon judgment immediately comes to mind, as well as the judgment on constitutional identity of 15 December 2015, in which the Court set out the minimum standard mandated by the Constitution to allow extradition in the context of a European Arrest Warrant. The German Constitutional Court’s preliminary reference in OMT can rightly be considered the peak of this approach.

In Taricco, the Italian Constitutional Court followed a different approach. Undoubtedly, in its order of reference 24/2017, even the Italian Constitutional Court somehow threatened the Court of Justice: it made clear that it was likely to use its most powerful weapon, the “counterlimits”, if the Court of Justice had upheld its unacceptable Taricco judgment. However, unlike the German Constitutional Court, the Italian Constitutional Court did not sketch the decision it wished from the Court of Justice but confined itself to stating the existence of a conflict between a judgment of the Court of Justice (Taricco) and a supreme principle of the Italian Constitution (legality in criminal matters). The Italian Constitutional Court did not dwell on the scope of the principle of legality in criminal matters, such that what the Italian Constitutional Court considers acceptable is not clear in the order of reference.

This seemed to be a strategic move in its confrontation with the Court of Justice. By not stating the scope and the limits of the supreme principle that prevents compliance with the Taricco judgment of the Court of Justice, the Italian Constitutional Court retains the ability to respond when the case comes back to it after the former’s decision. It is as though the Italian Constitutional Court played a first very open move waiting to see the reaction of the Court of Justice.

Both the German and the Italian approaches can be effective. The Court of Justice not only overruled Taricco following the preliminary reference of the Italian Constitutional Court,[2] but it also softened its Âkerberg Transson jurisprudence and enhanced fundamental rights protection in the execution of a European Arrest Warrant in Aranyosi and Càldàraru, in both cases following the “suggestions” of the German Constitutional Court.

If one had to visualize the style of the Italian Constitutional Court, one might say that it is a poker-player. Poker games last a while, and it is essential to observe how the other players react to one’s move. The Italian Constitutional Court does not put all its cards (its core arguments) on the table in a single move. Rather, it announces only one of them at a time - not necessarily the strongest - and waits for the reaction of its contender. When playing poker, even a player with weaker cards can ultimately win, if he (or she) plays them skillfully, as did the Italian Constitutional Court in Taricco.

  • [1] Court of Justice (GC), Case C-617/10,26 February 2013, Akerberg Fransson. 2 BVerfG, judgment of the First Senate of 24 April 2013 - 1 BvR 1215/07. 3 BVerfG, judgment of the Second Senate of 30 June 2009 - 2 BvE 2/08. 4 BVerfG, order of the Second Senate of 15 December 2015 - 2 BvR 2735/14. 5 BVerfG, order of the Second Senate of 14 January 2014-2 BvR 2728/13.
  • [2] Court of Justice (GC), Case C-42/17, 5 December 2017, M.A.S., M.B. 2 See Court of Justice, Case C-206/13, 6 March 2014, Siragusa', Case C-265/13, 27 March 2014, Torralbo Marcos; Case C-198/13, 10 July 2014, Julian Hernández. 3 “Court of Justice (GC), Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Caldararu.
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