Constitutional law and European integration: the Italiancase

Angela Di Gregorioprofessor of Public Comparative LawUniversità degli Studi di Milano, Italy

1. European integration between limitation of sovereignty and protection against itserosion; 2. Controlimiti and sovereignty; 3. The Italian case; 4. The 2001 constitutionalamendments and the subsequent interpretation of the Constitutional Court; 5. Conclusion.Again on the different role of the EU law and ECHR

1. European integration between limitation of sovereigntyand protection against its erosion

This article deals with some basic aspects of therelationship between national and European law and problemscaused by European integration, considering in particularthe Italian case.

It is known that European integration has more andmore, with the passing of time, limited national State’ssovereignty, taken apart at the same time also by internalprocesses of territorial devolution, up to the point ofundertaking a real crisis. Today the State, intended in atraditional way, with its “sovereign” prerogatives, doesn’texist anymore. From the point of view of legal sources, orprotection of rights, we talk more often about “multilevelconstitutionalism”1.

The Member States of the Union haven’t passivelyassisted to these external “attacks” to their sovereignty,trying to put up defenses. Their resistance is still verystrong, as we have seen during the tormented approval ofthe Treaty of Lisbon or, after this, during the negotiation1 There are a lot of references in Italian on this subject. See forexample: P. Bilancia, E. De Marco, La tutela multilivello dei diritti, punti di crisi,problemi aperti e momenti di stabilizzazione, Milano, 2004; S. Gambino, Multilevelconstitutionalism e diritti fondamentali, in Diritto pubblico comparato ed europeo, III,2008; P. Bilancia, The dynamics of the EU integration and the impact on the Nationalconstitutional law, Giuffré, Milano, 2012; P. Scarlatti, Costituzionalismomultilivello e questione democratica nell’Europa del dopo Lisbona, in Rivista AIC, n.1/2012, 17 gennaio 2012.

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of the so called “Fiscal Compact”. This resistance, put bygovernments, political parties, Constitutional Courts, inthe language of the Italian legal doctrine is calledcontrolimiti (counter-limits), that are limits to theprogressive limitations posed to national sovereignty.Controlimiti can be directly written in the Constitution orpurposely created in the constitutional case-law2.

The matters of discussion, in the constitutionaldebate, are many: the role of the European law incomparison to the international law and the peculiarity ofEuropean Treaties in comparison to other internationaltreaties (i.e. the use of generic or special procedures ofratification); the role of Constitutional courts; theintroduction of constitutional clauses for the limitationof sovereignty and of limits to the transfer ofsovereignty; the use of referendums for the ratification ofEuropean Treaties or even for the remaining in the EU3.

There is also the problem of the “Constitution” forEurope. Not considering the failure of ConstitutionalTreaty of 2004 we must remember that an EuropeanConstitution already exists. This is the result not only ofcase-law of the Court of Luxembourg (and of the principlesand fundamental rights it elaborated through time) but alsoof the European constitutional heritage that the MemberStates have in common; that is the result of the transferat European level of the constitutional values of thedifferent national Constitutions (as they are elaborated byConstitutional or Supreme Courts), within a continuingdialogue between the European Court of Justice and thenational Courts. But only recently a reference was made inthe Treaties to the «constitutional traditions common tothe Member States» (art. 6 par. 3 TEU)4. There is a slowand progressive osmosis of values that can be considered2 The term controlimiti has been coined by the famous Italianconstitutionalist Paolo Barile at the beginning of the ‘70s. P.Barile, Ancora su diritto comunitario e diritto interno, in Studi per il ventesimoanniversario dell’Assemblea costituente, vol. VI, Firenze, 1969, p. 45. Of thesame author see also, Il cammino comunitario della Corte, in Giurisprudenzacostituzionale, 1973, p. 2416.3 See the English case; not excluded the same for the Czech Republicand other countries.

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now consolidated even if not written in an officialdocument. It is a kind of European “common law”, constantlystrengthened thanks to the progress of the Europeanintegration: national Constitutions and “Community”Constitution become part of multilevel constitutionalismand integrate each other.

Even the “counter-limits” have had a specific role inthese constitutional developments at the European level.Often considered as the “brakes” to the primacy of Europeanlaw, and symptoms of nationalistic resistance of MemberStates, in reality they have had, through theirconcretization not only in respective Constitutions butabove all in the constitutional case-law, a stimulus to thedemocratization of European construction and a limit to themodel of market economy often sacrificing the principle ofequality.

As the dynamics caused by the economic crisis show,the “resistance” from the States seems to increase as moresacrifices can be foreseen by the more “virtuous” States.This resistance equally comes from old and new EU MemberStates5.

2. Controlimiti and sovereignty

Constitutional Courts of the Member States of theUnion have had – and still have – a crucial role inclarifying the relationship between European and nationallegal orders. Their contribution is not merely limited tothe definition of the hierarchy of legal sources but italso covers other important aspects, such as the Statesovereignty, the protection of the essential core ofconstitutional rights and the nature of the Union.4 In such a way introducing at the Community level the controlimitiapproach; the Court of Luxembourg seems to have taken into accountsuch limitation in its jurisprudence following the Treaty of Lisbon.See G. de Vergottini, Oltre il dialogo tra le Corti. Giudici, diritto straniero,comparazione, Bologna, il Mulino, 2010, pp. 70-79.5 With reference to the “Treaty on Stability, Coordination andGovernance in the Economic and Monetary Union”, better known as“Fiscal Compact”, see D. Morgante, Note in tema di “Fiscal Compact”,www.federalismi.it, April 4th 2012.

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They are complex matters, which also influence therelationship of national judges (ordinary orconstitutional) with the European Court of Justice, withinan interaction and dialogue that hasn’t always beenpeaceful. Constitutional Courts aren’t so enthusiastic togive the Court of Luxemburg the last word in very sensitivematters under the constitutional point of view. For thisreason at the beginning only few of them used thepreliminary reference as indicated in the Article 234 ofthe TEU Treaty6.

The role of the Constitutional Courts has been, andpartly still is, ambiguous. On one hand they tried toensure the supremacy of the EC law within their legal order(the so-called primauté), on the other they have stronglyprotected the most important core of national sovereignty,through the well known theory of counter-limits. The mainproblem regards the supremacy of EC law in the internallegal orders, strongly wanted by the Court of Luxembourgsince the 1960s.

The role of Constitutional Courts is obviouslystronger where a specific claim for the preventive exam ofthe constitutionality of international treaties is provided(France, Spain, Czech Republic, Slovakia, Poland, Slovenia,Hungary). We may remember that not all Member States of theUnion have a concentrated control of constitutionalitygiven to the Constitutional Courts. In some countries(Sweden, Finland, the Netherlands, Estonia, UK, Ireland,Greece, Denmark, Malta, Cyprus) the control is “diffused”.But also these countries have faced the problem concerningthe counter-limits, through a series of decisions of theSupreme Courts (even administrative, like in Sweden) orthrough the expressed will of constitutional legislator.

6 About the new Member States see: M. Bobek, Learning to talk: PreliminaryRulings, the Courts of the New Member States and the Court of Justice, in Common MarketLaw Review, n. 45, 2008, pp. 1611-1643; B. Banaszak, Impact of EuropeanIntegration on the Law and Constitutional System in Poland, Warszawa, Beck, 2009; J.Přibáň, From ‘Which Rule of Law?’ to ‘The Rule of Which Law?’: Post-Communist Experiencesof European Legal Integration, in Hague Journal on the Rule of Law, 1: 337–358,2009.

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Constitutional/Supreme Courts give a differentinterpretation of the relationship between European andnational law. That depends in some cases on constitutionalwording (sometimes controlimiti are expressly written in theConstitution). In other cases it is the case-law that drawsconditions to the supremacy of European law (the so-callednon textual controlimiti). Easier is the situation in whichthe Courts force parliaments to introduce constitutionalamendments to allow the ratification of some EuropeanTreaties: in such cases the limit is only procedural7.

Obviously, in countries whose Constitutions don’tmention the controlimiti there is a greater elasticity in therelationship between the two legal orders and a greaterdiscretion of Constitutional Courts. That has pros andcons.

So, Constitutional Courts have made clear what are theright procedures to ensure the supremacy of European lawover internal statutes or other acts in case of conflict.It is a matter that in the past has caused manycontroversies with European Court of Justice (ECJ). Whilethe latter since the 1960s (starting from the Costa/Enelcase of July 15, 1964) declared the supremacy of Europeanlaw, that becomes part of national legal orders because ofthe access of the State to the EC and prevails overinternal statutes, several Member States didn’t accept thisrigid supremacy, trying to protect the core of their ownconstitutional order. Starting from the decision n. 183 ofDecember 27, 1973 (Frontini case) the ItalianConstitutional Court showed its position at this regard,affirming that it is possible to evaluate the statuteordering the execution of the Treaty from the point of viewof the fundamental principles of the nationalconstitutional order and of the inalienable rights of theperson. But it was mainly the German ConstitutionalTribunal that developed the controlimiti doctrine through aseries of decisions, so starting this useful relationbetween national Courts and ECJ that has led the latter to7 A. Celotto, T. Groppi, Diritto UE e diritto nazionale: primauté vs controlimiti, inRivista italiana di Diritto Pubblico Comunitario, 6, 2004, pp. 1377-1378.

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elaborate a “judicial” catalogue of fundamental rights atthe Community level until the Charter of Nice was adopted(this document became binding only starting from the Treatyof Lisbon).

European “journey” of the new Member States, startingfrom the transition to democracy, in alternate phases ledthem to the receiving of European standards regardingfundamental rights and to the acceptance of the conditionsposed by the Union to their entrance, showing a quest forintegration often bigger than the one of the old MemberStates8.

Definitively, Constitutional or Supreme Courtsaffirmed, expressly or implicitly, their power to declarethe EC law unconstitutional if this is in contrast withfundamental principles of their Constitution or if itexceeds the limits of competencies of the Union. Because oftheir “resistance”, Constitutional Courts have often beenaccused of obstructionism face to the European integration.In fact it isn’t so. The Courts not simply have defendednational State’s prerogatives but they have also tried toimpose to the European legal order some kinds of controlsand democratic limits in the exercise of the power, thatthis order has always tried to avoid. At the same time someCourts have thought to put anachronistic border linebetween the national and European orders.

Some authors believe that the controlimiti doctrine istoday transforming, because at the Union’s level there is areal protection of rights; so, this doctrine would belimited to the protection of a few basic principles9. But

8 With some exceptions: see cases of Slovakia towards the “EuropeanFinancial Stability Facility” (EFSF) and the Czech Republic and itsopting-out towards the Fiscal Compact: in general we may say that ifgovernments are euroskeptic the Constitutional Court are less; thisseems to be the case of the Czech Republic; in the Polish case we seea closer alignment with the jurisprudence of the German ConstitutionalTribunal.9G. de Vergottini, Tradizioni costituzionali comuni e Costituzione europea, inwww.forumcostituzionale.it. A. Tizzano, Dall’unità nazionale all’integrazionesopranazionale, in Il Diritto dell’Unione Europea, 3/2012, pp. 621-643, inparticular, criticizes the concept of controlimiti, considered completelyunjustified today.

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the real goal of the powers’ recovery of the ConstitutionalCourts seems to reside not only in really examining theconformity of each European norm to fundamental principlesof their constitutional legal order but rather in alwayspreserving the possibility to discuss with the ECJ with anaim of cooperation.

Even if the enforcement of the controlimiti is to beconsidered an extrema ratio, difficult to activate and sorather theoretical (for legal and political reasons), the“protectionist” position of the Constitutional Courts hashad positive effects in making the democratization of theEuropean order, pushing the Court of Justice to elaborate ajudicial catalogue of rights (based on the commonconstitutional heritage and on the European Convention forHuman Rights) ad so urging it to consider the position ofnational Courts.

The controlimiti have so functioned, through theirconcretization in national Constitutions and above all inconstitutional case-law, as a stimulus to thedemocratization of the European legal order.

3. The Italian case

The 1948 Italian Constitution was silent as to thestatus of Community/European law in the national legalsystem, because the Communities didn’t exist at that time.There was only an article originally drafted with theUnited Nations in mind, art. 11, according to which «Italyconsents to the limitations of sovereignty necessary for alegal system of peace and justice that ensures peace andjustice among Nations, provided the principle ofreciprocity is guaranteed; it promotes and encouragesinternational organizations furthering such goals».

Until 2001, when the Italian Parliament approvedconstitutional revision also on this point, there have beenseveral doctrinal debates on the possibility of using art.11 for the European integration. The matter was faced bythe Constitutional Court that answered positively. In theFrontini case (No. 183/1973) the Court held that Article 11

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allowed the necessary limitations of sovereignty formembership of the European Communities. Nonetheless, theCourt ruled that the surrender of sovereignty envisagedcould not be unlimited, since Community rules cannotoutweigh the protection of the fundamental rights orprinciples enshrined in the national Constitution (thecontrolimiti doctrine).

From the technical point of view, the only legalsource that regulates the access of Italy to the EuropeanCommunities, then European Union, is the statute ratifyingthe Treaty of Rome (and subsequent Treaties), and theexecution order there contained. In fact, Italy is the onlyMember State of the Union which doesn’t have an “Europeanclause” at constitutional level. The regulation of therelations between Italian and Community/European legalorders is left mainly to the constitutional case-law.

The approach of the Italian Constitutional Courttowards the EC/EU integration process has never beenstraightforward10. Initially the Court rejected the idea ofprimacy of Community law over national law (see decisionno. 14/1964 par. 14). Essentially in that time the Courtapplied the chronological criterion to resolve conflictsbetween the national legal sources and the Community ones.On the basis of this criterion, the more recent norms wereable to repeal previous norms without the intervention ofthe Constitutional Court. The Court of Justice of theEuropean Communities didn’t accept this solution. In theopinion of the European Court, the repeal of a Communityregulation by a national statute was an infringement ofCommunity law (Costa C. Enel, decision of July, 25 1974).Later the Italian Court tried to conform its case-law bythe use of the hierarchical criterion: Italian statutes incontrast with a Community previous regulation (thesubsequent regulation was able to repeal previous Italian

10 See G. Itzcovich, Sovereignty, Legal Pluralism and Fundamental Rights. ItalianJurisprudence and European Integration (1964-1973), in European Public Law, 10/1,2004, pp. 107-133. Also M. Cartabia M., The Italian Constitutional Court and theRelationship Between the Italian Legal System and the European Union, in A. Slaughter,A. Stone Sweet, J.H.H. Weiler (eds.), The European Courts & National Courts.Doctrine and Jurisprudence, OUP, 1998.

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statutes in contrast with it) could be contested in face ofthe Constitutional Court because of the indirect violationof the art. 11 of the Constitution (decision no. 183,December 27, 1973)11. But even this solution has severalproblems since it connects the applicability of Communitylaw to the intervention of an internal act of the State(the judgment of the Constitutional Court or the repealingact) in breach of art. 249 EU Treaty.

It was only with the Granital case (no. 170/1984, June8, 1984) that the Court changes radically its opinion andat last recognized that, as prescribed by the ECJ inSimmenthal (case no. 106/1977, March 9, 1978), all ordinaryjudges have a duty to set aside national norm incompatiblewith EC law without the need to obtain the priorauthorization of the Constitutional Court. That being so,it maintained the exceptions laid down in Frontini.

In this decision the Court gives the followingtheoretical premises:

1. The Community and the Italian legal orders are twoautonomous and separate legal orders, each one withits own system of legal sources12;

2. The Community law «isn’t part of internal law, andisn’t submitted to the rules applicable to the Italianstatutes and acts with force of statute». Between

11 Thus is recognized the primacy of Community law over the domesticone, but without clarifying the mechanism. This is done in thedecision no. 232 of October 30, 1975 in which the Court states thatthe Community regulation implicitly repeals the earlier contrarydomestic laws, under chronological criterion; but instead the lawenacted in violation of a previous Community regulation must beconsidered unconstitutional and should be then contested for indirectinfringement of Article 11 of the Constitution before theConstitutional Court, the only body competent to eliminate it by law.The Community rules are, therefore, considered “interposed” rules,i.e. an integration of the parameter of constitutionality of art. 11Cost. See A. Celotto, I rapporti tra l’ordinamento comunitario e quello nazionale nellagiurisprudenza costituzionale italiana, in G.C. De Martin, Z. Witkowski, P.Gambale (eds.), Riforme costituzionali e itinerari della democrazia in Europa: Italia ePolonia a confronto, Padova, Cedam, 2007, p. 276. 12 According to the Court, the Community and the State legal systemsare «different legal systems, even if they are coordinated on the baseof allocations of competences».

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internal and Community legal sources there isn’t aconflict because each one has its validity andeffectiveness in its own legal order according to theconditions given by the order itself;

3. Through the ratification of the accession Treaty, theItalian legislator has admitted the power of theEuropean Communities to produce legal norms in certainsubjects and that these are applicable directly in theItalian legal order not because they have “the forceof statute” (a category typical of the Italian legalorder) but for the force they are given by the Treaty.So it is the Treaty that marks the division ofcompetencies between the two legal orders and therules given to their own sources of law;

4. Conflicts between norms or acts must be resolved bythe Italian judge (this is the most important novelty)applying the competence criterion (that’s another veryrelevant aspect). The judge must evaluate if, on thebasis of the Treaty, in a certain subject thecompetence is due to the Community legal order or tothe Italian one and must, consequently, apply thenorm/act of the competent legal order. The nationalact/norm, if it doesn’t have the competence, isn’trepealed (chronological criterion) and isn’t declaredillegitimate (hierarchical criterion) but simply “notapplied”. The act/norm keeps its validity andeffectiveness in other cases, but for the specificcase the judge considers it non competent and appliesthe Community norm.

The decision has caused criticism because it retains thedualistic approach opposed by the Court of Justice andexceeded by many EU States. Also, the Court invented a newthing that didn’t exist before in our legal system, that is“non application”, different form the “disapplication”,that implies a vice of the norm/act (“non application”implies a question of interpretation). But the Court ofJustice didn’t like this subtle distinction, because itcan’t accept that in a Member State norms contrasting withCommunity law would be considered valid and would remain in

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force giving to the ordinary judge the task of non applyingthem in each specific case13.

If the Community Act isn’t self-executing the judge mustrefer the question to the Constitutional Court, complainingthe indirect violation of the art. 11 of the Constitution.If it is instead a question of conflict between sub-legislative norms/acts and Community norms/acts the problemis easier, because it is possible to apply the hierarchicalcriterion: the sub-legislative act mustn’t be in contrastwith the national statute ratifying the Treaty and with theexecution order. At last, in the case of conflict withconstitutional norms, the Court acknowledged that Communitynorms could depart from several constitutional norms (inparticular those relating to the allocation of powersbetween State and Regions: judgment no. 399 of November 11,1987) but not from the principles of the Constitution.Thus, whenever a Community rule infringes a fundamentalprinciple or right of the Italian constitutional system, itwill be for the Constitutional Court ‒ and not for ordinaryCourts ‒ to decide the hierarchy of norms. In that case theonly thing to do in Italy it is to refer to theConstitutional Court the execution order of the Treaty inthe part through which it allows the access in our legalsystem of this specific Community/European normincompatible with constitutional principles. But it isnecessary to note that although in some cases might havebeen envisaged a violation of fundamental constitutionalprinciples the Italian Constitutional Court, even if wentclose to establishing such a violation, diplomaticallyavoided doing so (see judgment no. 232, April 21, 1989).This is the reason why certain authors consider thiscontrolimiti doctrine only theoretical and not more actual.

13 The interpretation of the Italian Constitutional Court is obviouslyapplicable only to the so-called self-executing Community acts, thatis regulations and self-executive directives. The duty of non applyingthe statute contrasting with them exists not only for judges but alsofor the Public Administration (at the State level or at the regionalor local one).

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In any case it seems evident from the Court’s positionthat the theory of two separated systems (dualistic theory)is always valid. This theory exists in a few countries andis typical of the relationship between national andinternational law. So, the enormous progress that the EUmade towards a very integrated system, similar to a federalState, is not recognized. Not only in Italy. After so manyyears and notwithstanding the guarantees for thefundamental rights elaborated by the Luxembourg Court’sjurisprudence and, recently, expressed in the Charter ofNice, the State resistance is still strong.

Only in very recent years the case-law of the ItalianConstitutional Court showed some kind of “opening”, as faras the dialogue with the European Court of Justice isconcerned.

4. The 2001 constitutional amendments and the subsequentinterpretation of the Constitutional Court

In the last years, the Italian Constitutional Courthas issued some important decisions on the role of EUlegislation in the Italian Constitutional system. Thesejudgments are inspired by the same ratio, as they all seekto strengthen the position of EU legislation. In fact, itis likely that such case law has been influenced by the2001 amendments of the Italian Constitution which expresslymention the need to respect EU law. The (amended) article117(1) for the first time establishes that «Legislativepowers shall be vested in the State and the Regions incompliance with the Constitution and with the constraintsderiving from EU legislation and internationalobligations»14. Article 11 still survives. The same can besaid for article 10, which has not been amended andguarantees a constitutional status to international

14 The modification of the Constitution ensures a decentralization ofpowers from the State to regional bodies and has concerned a limitednumber of Articles, such as article 117, which, in its originalversion, is related purely to the delimitation of powers between theState and the Regions.

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customary law («the legal system of Italy conforms to thegenerally recognized principles of international law»)15.

After the 2001 amendments, the co-existence of theseprovisions raised interpretative problems. The question wasnot merely theoretical. First of all because article 11 isto be read in conjunction with the judicial interpretationof the controlimiti whilst at first sight the new article117(1) does not entail such a limitation. Secondly, the newprovision does not distinguish the EU legislation frominternational treaties, both being described as limitingthe legislative powers of the Italian State and Regions.

A first indication came by an order (n. 454/2006) inwhich, notwithstanding the entry into force of the amendedarticle 117, the Constitutional Court continued to refer tothe “old” article 11 of the Constitution, along with therelated idea of controlimiti, when dealing with thecompatibility with the EC Treaty (freedom to provideservices) of an Italian law forbidding gambling.

A clearer and more authoritative answer to theaforementioned questions has then been provided by twojudgments (nos. 348/2007 and 349/2007) in which the Courtstated that the new article 117(1) does not only relate tothe relationship between the Regions and the ItalianRepublic, but also imposes a general duty to respectinternational treaties. In this case the matter was theapplication of the European Convention of Human Rights(ECHR). In the two decisions at issue the Court tookarticle 117(1) into account for the first time,establishing that such a provision recognizes that the ECHR(and international treaties) has a status which fallssomewhere in between ordinary laws and the Constitution.Hence, its provisions can be used as a parameter inreviewing the constitutionality of a law. According to theCourt, the ECHR can be considered as having the status of“intermediate norm”. The Court clarifies the differenteffects of article 11 and new article 117(1) of theConstitution, declaring that only the former, entailing a15 The recent constitutional amendments of April 20, 2012 also speakabout the necessity «to ensure compliance with the economic andfinancial constraints deriving from European Union».

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limitation of sovereignty, justifies a “constitutional”rank in the Italian hierarchy of norms, while the lattercan only allow for a “sub-constitutional” status.Considering the above, the Court stressed the differentstatus granted to international treaties and the EU Treaty(including secondary legislation): whilst article 117(1)applies to both kinds of treaties, only the TUE is coveredby article 11.

As the Court has stated in its well established case-law article 11, providing for a limitation of sovereignty,ensures that EU norms are considered as having a“constitutional” level, with the consequence that onlycertain fundamental rights or particularly vital principles(i.e. not all the norms) of the Italian constitutionalsystem may, in case of conflict, limit their application.Only in such circumstances is the intervention of theConstitutional Court required, all other situations beingdecided by ordinary judges who must not to applyinconsistent domestic provisions. On the contrary, the newarticle 117(1) simply recognizes a “sub-constitutional”level, i.e. a supremacy over Italian secondary legislationwhich has to be declared by the Constitutional Courtitself.

A “double rooting” of Community law in the Italianconstitutional system is therefore established byrecognizing that article 11 survives with a differentpurpose from that of article 117(1). Such a doubleconstitutional basis grants European Community law aspecial constitutional status which allows it to benefit (asprescribed by the ECJ in Simmenthal) from an immediatejudicial remedy. The Court stressed that by ratifying theEEC Treaty the Italian Republic entered «a wider legalorder whose nature is supranational» (judgment no. 348,point 3.3.), which is apparently not the case for the ECHR,and that only EC law has direct effect. Therefore, it isonly in relation to the latter that national judges can setaside an inconsistent domestic law without requesting theinvolvement of the Constitutional Court, which on thecontrary is necessary when dealing with the ECHR. However,the “constitutional” role does not seem necessarily

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reserved only to the EC Treaty (first pillar), as thejudgment no. 349 also seems to recognize a constitutionalstatus for article 6 TEU. The question of pillars has notbeen faced so far by the Constitutional Court, which makesreference sometimes to the “European Union” (recalling thenew art. 117) and sometimes to the “European Community”(when it recalls its previous case law about art. 11).

It is clear that interpreting the new article 117(1)in order to grant all the international treaties aconstitutional status, and therefore allowing the domesticjudges to directly apply them without passing through theconstitutionality filter, could entail serious risks.Nevertheless, since the ECHR is a very special treaty, thesolution followed by the Constitutional Court is debatable.In any case after the 2001 amendments the role of ECHRstrengthened, because before its provisions only benefitedfrom a status equivalent to that of the ratification statute(an ordinary statute) which meant that a subsequentcontrasting ordinary statute could prevail over it.Nevertheless, the reasoning used by the Court to excludethe ECHR from the scope of article 11 is questionable.

The survival of article 11 as constitutional basis ofthe primacy of the European/Community law also implies thatthe controlimiti doctrine still applies. It follows that if aconflict should arise between an EC rule and a fundamentalprinciple of the Constitution, Italian judges would have tocall upon the Constitutional Court to balance all theprinciples at stake. It is worth recalling that, althoughevery national Constitutional or Supreme Court has foundits own way towards the supremacy of EC law, establishingwhich supreme fundamental values of the domestic legalsystem may hinder the force of Community provisions, theEuropean Court of Justice has never recognized thecontrolimiti theory16. It has in fact “internalized” the16 But the new version of the TUE, following to the Treaty of Lisbon,states at the art. 4, par. 2 that: «The Union shall respect theequality of Member States before the Treaties as well as theirnational identities, inherent in their fundamental structures,political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions,including ensuring the territorial integrity of the State, maintaining

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“external” fundamental rights and principles of the MemberStates, absorbing them into the (European) category offundamental principles of the EU/Community.

Although the Constitutional Court reaffirms its powerto have the last say regarding the fundamental principlesof the Italian Constitution, the intertwining of thedomestic legal order and the European Union is so taut thatit seems unlikely that both the ECJ and nationalConstitutional (or Supreme) Courts ignore the reciprocalfundamental values going to a direct clash. Most of thefundamental principles of European law have been derivedfrom a long distance dialogue between the Courts.

Another non pacific question until recent times inItaly was that of the preliminary ruling to the Court ofLuxembourg. Constitutional issues are normally broughtbefore ordinary courts, in ordinary judicial proceedings,and referred to the Constitutional Court incidenter tantum.However, in a conflict of powers between the State and theRegions, the issue of constitutionality may be takendirectly to the Constitutional Court by way of directaction by the Regions or the Government.

The Court had always refused to ask the ECJ for apreliminary ruling on the interpretation of Community lawpursuant to article 234 TUE. In fact it considered its ownposition, devoted to guaranteeing the respect of theItalian Constitution, to be radically different from thatof ordinary and administrative judges. Thus, since only thelatter could, as prescribed by the Simmenthal doctrine,simultaneously be judges of the domestic legal system andof the EC, the power/duty to request that the matter bebrought before the Court of Justice, enshrined in article234 TUE, did not apply to the Constitutional Court. Such aposition is theoretically justified in all the cases inwhich the Italian Constitutional Court acts as aconstitutional reference authority in the framework of aprocedure brought before an Italian ordinary oradministrative court. In such cases, if an interpretation

law and order and safeguarding national security. In particular,national security remains the sole responsibility of each MemberState».

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of EC law is required it is the prerogative (or duty, inlast instance) of the ordinary judge to ask the ECJ for apreliminary ruling. Conversely, since the ConstitutionalCourt is the sole judge in cases of direct action, there isno possibility for asking the ECJ for a preliminary rulingon matters with Community relevance.

That being so, the position of the ConstitutionalCourt seems to conflict with article 234(3) TUE accordingto which whenever a question of interpretation regarding EClaw is raised «in a case pending before a court or tribunalof a Member State against whose decision there is nojudicial remedy under national law, that court or tribunalshall bring the matter before the Court of Justice».

With judgment no. 102/2008 and order no. 103/2008,both issued on 12 February 2008, the Constitutional Courthas overruled its previous case-law, referring to itself asa «court or tribunal of a Member State» for the purposes ofarticle 234 TUE17.

In the order n. 103 the Court has shown a willingnessto overcome the rigidly dualistic approach of therelationship between domestic law and Community law(expressed by Granital judgment forward) in favour of anapproach where integration seems to take the place ofseparation, describing the Community legal system as«independent, integrated and coordinated» with the internalone18.

The Court acknowledges that in cases of direct actionsof constitutionality it is its duty to apply Community law,17 In the case at issue, the Italian Government brought a direct actionagainst the Region of Sardinia, which had issued a “luxury tax” whichonly applied to individuals and corporations residing outside theSardinian territory. Such a tax was challenged by the ItalianGovernment on the ground of its alleged inconsistency with the ECTreaty provisions on the freedom to provide services (art. 49 TEU) andon State aids (art. 87 TEU) because it indirectly gave an advantage toSardinian companies.18 O. Pollicino, Constitutional Court at the crossroads between constitutionalparochialism and co-operative constitutionalism. Judgements No. 348 and 349 of 22 and 24October 2007, in European Constitutional Law Review, 2008; G. Della Cananea, TheItalian Constitutional Court and the European Court of Justice: From Separation to Interaction?Comment on Constitutional Court, Order n. 103 of 16 April 2008- Presidente del Consiglio deiministry v. Regione Sardegna, in European Public Law, Vol. 14, Issue 4, 2008.

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which is first of all a benchmark for evaluating thecompatibility of regional laws with the new article 117(1)of the Italian Constitution. For this reason, in directactions the issue of conformity of regional legislationwith European law turns out to be a question ofcompatibility with article 117(1) of the Constitution.Consequently, if a regional law is deemed to beinconsistent with EU law it should not simply be set asidein the case at hand, but will be declared unconstitutionaland struck down with erga omnes effects19.

The Court confirms that in such cases it acts as ajudge of single instance and that, as a result, it may becalled to deal with issues of interpretation ofEuropean/Community law. Acknowledging the importance of theuniform application of EC law, it admits that in suchcircumstances it can be considered as a national judgepursuant to article 234(3) EC. Accordingly, it decided tostay proceedings and call upon the ECJ for a preliminaryruling in order to ascertain whether the provisions of theRegion of Sardinia infringe Community law20.

The decisions examined clearly highlight the generalacceptance of the supremacy of the EU legal system over theItalian one, the only (theoretical) exception being thecontrolimiti doctrine. The Constitutional Court makes it clearthat the reform of the Italian Constitution, whichtransfers important powers to the Italian Regions, does notaffect such supremacy. On the one hand, the reformreinforces its control on regional legislation, in order to19 F. Fontanelli, G. Martinico, Cooperative Antagonists. The Italian ConstitutionalCourt and the Preliminary Reference: Are We Dealing with a Turning Point?, Eric SteinWorking Paper No 5/2008, in www.ericsteinpapers.eu; F. Vismara, Rapportitra Corte costituzionale italiana e giudice ordinario nella dinamica del rinvio pregiudiziale allaCorte di giustizia, in Il Diritto dell’Unione Europea, 2/2012, pp. 309-322.20 The Court of Luxembourg answered in the decision of 17 November 2009that the norms of Sardinia not comply with the artt. 49 and 87 of ECTreaty. The decisions of 2008 of Italian Constitutional Court werefollowed by the judgment no. 216 of 2010, which incorporated the issueof the luxury tax introduced by the Sardinian Region saying, based onthe intervention of the Court of Luxemburg in 2009, that the regionallaw was unconstitutional on the basis of the interpretation ofCommunity law made by the Court of Luxembourg, which was given (forthe first time) preliminary ruling from the Constitutional Court.

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guarantee its compliance with article 117(1), and thereforewith European law, and, on the other hand, it recognizesthe ECJ as the ultimate authority for interpreting EC lawand questions of consistency with domestic legislation. The2008 cases interprets the modification of the ItalianConstitution in the most pro-European sense possible,guiding the Italian system in the same direction.

In judgments nos. 180, 233, 340, in 2010, regionallaws conflicting with Community law were declaredunconstitutional (the laws in question delayed expiredpublic seaside concessions, in violation of EU rules onliberalization); other cancellations of regional laws alsocame in 2011 (44/2011, 190/2011, 213/2011). This is part ofa general greater respect of the Italian Court towards the“constraints” of EU/Community, even if it doesn’t alwaysallow the reduction of regional powers on the pretext ofthe existence of such constraints (see judgments nos.8/2011, 35/2011).The restrictions also apply to the Statelegal order, as stated in the new art. 117 cost.

Still in 2010, judgment no. 227 declared partiallyunconstitutional − because of the contrast with theEuropean law − the law on the European arrest warrant, inthe part it did not include the refusal to surrender eventhe citizen of another European country with effective andlegitimate residence in Italy.

Since the reform of article 117, paragraph 1, of theItalian Constitution the discussions on European/Communitylaw are closely related to those on international treatylaw and in particular the ECHR. In decisions nos. 311 and317 of 2009, the Court has developed a number of elementsalready present in the judgments nos. 348 and 349 of 2007,showing more clearly the need to take into account thecontent of the ECHR (as interpreted by the StrasbourgCourt) by both the ordinary judges and the constitutionalones.

While in the judgments of 2007 the Court is concernedprimarily with the “technical” fact to avoid an equivalencebetween ECHR and EU rules in the hierarchy of legalsources, therefore, to exclude the possibility of theordinary courts not to apply internal acts in conflict with

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the ECHR, in the decisions of 2009 space is given for thetheory of interpretation. In the judgment 311/09, the Courtsays that apart from the cases in which the ECHR can be inconflict with the Constitution, the Constitutional Court«is forbidden to criticize the interpretation of theEuropean Convention made by the Court of Strasbourg, towhom this role has been attributed by our country withoutmaking exceptions». Moreover, in the judgment 317 the Courtsays that if the ECHR, as interpreted by the StrasbourgCourt, in a case of balance between fundamental rightswould provide increased protection than that given by theItalian Constitution, the Constitutional Court could acceptthe stronger protection offered by the supranational levelby putting aside in this case the relevant constitutionalprovision21.

It clearly follows from these and previous rulingsthat in the relationship between internal and “outside”sources apply the following rules, which distinguish theinternational treaty standards from EU legal sources:

1. The rank of the ECHR in the Italian legalsystem is sub-constitutional (at least until the EUaccedes to the ECHR): this was establishedsince the judgments 348 and 349 of 2007, then311 and 317 of 2009, also 236, 2011 and303/2011

2. The rank of EU rules is constitutional except inthe case of contrast with fundamentalprinciples

3. The ordinary courts can directly apply EU rules(but not ECHR), not applying national acts inthe event of conflict, but one series of caseswhich must still be referred to theConstitutional Court22

21The text of the Italian Constitutional Court decisions may beobtained on the website of the Court (www.cortecostituzionale.it) orfrom the review Giurisprudenza costituzionale. 22Breach by the European/Community legislation of fundamentalprinciples of constitutional order; violation of EU law in case ofdirect action to the Court (as stated in the judg. 102/2008); finding

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4. In case of conflict between the ECHR andnational laws the ordinary courts should doeverything for an interpretation complying withthe ECHR, as interpreted by the StrasbourgCourt, and only when despite this the conflictremains, the judge must raise constitutionalquestions with reference to art. 117, paragraph1 cost. or even art. 10, paragraph 1 cost.«when dealing with a provision of the ECHRwhich recognizes a rule of international lawgenerally recognized» (case 311/2009,236/2011).

5. Conclusion. Again on the different role of the EU lawand ECHR

The Italian Constitutional Court seems to have hadmore resistance than others in admitting the prevalence ofthe European Union sources of law: at the beginning, itrecognized that the Community acts have only the value ofan ordinary statute, then it considered them as“interposed” sources between Constitution and ordinarylaws, and in the end it admitted their prevalence overItalian ordinary statutes, allowing ordinary court “non toapply” the latter. At the same time, it always interpretedthe relationship between European and national legal orderin dualistic terms. But in recent years the Court hasshowed a higher level of opening to the European legalsources, considering itself also a European judge andof infringement by the Constitutional Court by a decree of theprinciples and criteria that an enabling law was given to theGovernment to implement a Community directive (judg.44/2008); conflictbetween domestic legislation and Community legislation that does nothave direct effect. A. Celotto, I rapporti tra l’ordinamento comunitario e quellonazionale nella giurisprudenza costituzionale italiana, cit., p. 290, criticizes theCourt's position because it would operate in Italy two non homogeneousinstitutions, i.e. “non application” and the “declaration ofunconstitutionality”, resulting in uncertainty and confusion. Thiswould be a symptom of uncertainty between monistic approach (followedby several countries) and the dualistic one, anachronisticallymaintained to safeguard not only the fundamental principles of theConstitution but the same prestige of the Constitutional Court..

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avoiding definitely the risk of isolation, after thedecisions of 1990s23.

The Court now considers that legal sources must beread in a European dimension, allowing a constructivedialogue between European and national Courts evenadmitting the possibility of conflict between them. AEuropean system of sources of law must be applied by aEuropean system of judges, in which the Italian ones mustparticipate unconditionally in the “ascendant” and“descendent” phases.

In the judgment n. 86 of 2012 the Constitutional Courtoffers a summary of relationships between Italian andEuropean law and the conditions of prevalence of thelatter: «With the ratification of Community Treaties, Italybecame part of an autonomous legal order connected with theinternal one and, on the basis of the art. 11 of theConstitution, transferred the exercise of competencies –even normative ones ˗ in the matters indicated by theTreaties. The acts of the European Union bind the Italianlegislator in different ways, having their limit only inthe fundamental principles of constitutional order and infundamental human rights guaranteed by the Constitution».

The judgment n. 75 of 2012 is also relevant. Itconcerns the interpretation of directives and of thepreliminary ruling to the European Court of Justice:«National judges whose decisions can be appealed mustinterpret Community law and if they have a doubt on thecorrect interpretation they can (not must) use preliminaryruling before the European Court of Justice. The aim ofthis is the correct interpretation of the Community law andto apply it, if necessary, despite the existence of aninternal contrasting norm. The highest court, on thecontrary, has the duty to make preliminary ruling, exceptwhen a clear interpretation already exists. As far as theConstitutional Court is concerned, in order n. 103 of 2008

23 L. S. Rossi, Recent Pro-European trends of the Italian Constitutional Court, inCommon Market Law Review, 46, 2009; G. Guarino, Some recent perspectives inItalian Constitutional Law, on the relations between International Law and Italian Law, inwww.giurcost.org/studi/index.html 11.7.2011.

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it clarified its duty to address the European Court on thebasis of the art. 267 of the Treaty when it is directlyreferred». Ordinary court must firstly ask the EuropeanCourt for interpretation, if it has a doubt on theconformity of Italian law with the European one, and onlyafter this it can raise the issue of its constitutionalitybefore Constitutional Court (see also judgments 284 of 2007and 170 of 1984).

Currently, one of the most important questions is thatof the “constitutionalization” of the Charter of Nice andof the European Convention of Human Rights by the renewedEuropean Union Treaty24. Ordinary judges have often beenundecided on the possibility of “non-application” (allowedin case of conflict between Italian law and the Charter ofNice) or “interpretation conform to” (conforminginterpretation), possible in the case of ECHR.

As already stated in judgments 348 and 349 of 2007,the ordinary court must respect ECHR in the interpretationof the European Court of human rights. However, it can notdirectly “not to apply” any Italian norm conflicting withECHR, since only the Constitutional Court may exercise thecentralized control of that incompatibility. But with theentry into force of the Lisbon Treaty (1st Dec. 2009) andthe modification of the art. 6 of the EC Treaty25 (now TEU,Treaty on European Union), part of the doctrine andjurisprudence (specially that of the State Council, thehighest administrative court) have contested thatconclusion.

The State Council, in judgment n. 1220 of 2010, hasstated that articles 6 and 13 of the ECHR have becomedirectly enforceable in the national legal order followingthe modification of TEU’s art. 6. The TAR (RegionalAdministrative Tribunal) of the Lazio Region supported this

24 E. Cannizzaro, The Effect of the ECHR in the Italian Legal Order: Direct Effect andSupremacy, in The Italian Yearbook of International Law, vol. XIX, 2009, 173 ss.25 Art. 6 contains new regulation of rights: 1. the incorporation ofthe Charter of Nice in the Treaty; 2. the intention to adhere to theECHR; 3. rights contained in the ECHR together with rights resultingfrom the “common constitutional traditions” of the Member States areincluded in EU law as “general principles”.

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position in its decision n. 11984 of 18 of May 2010.Administrative judges have in this way “comunitarized” theEuropean Convention of Human Rights in advance, in that wayadmitting the non application of the internal normsconflicting with it26.

The reaction of the Constitutional Court has beensevere and negative in judgment 80/2011: art. 11 Const. canbe applied only to the EU legal order and not even to theECHR order. The European Union has not yet adhered to theECHR. So, the entry into force of the Treaty of Lisbon «didnot involve a change of location of the ECHR in the legalsources», so as to render obsolete the concept of“interposed" provisions”. We must therefore exclude thatthe judge can not be considered qualified to apply theinternal rules deemed incompatible with art. 6 of the ECHR.

The court of Bolzano made a preliminary ruling to theCourt of Justice on 7 dec. 2010 with the aim of clarifyingthat point and requested the interpretation of the art. 6,par. 3 TEU. In the Kamberaj case of 24 April 2012, the Courtof Justice ruled in favor of the Italian ConstitutionalCourt: the value of the ECHR in the legal orders of themember States has not changed since the entry into force ofthe Lisbon Treaty.

In 80/2011 judgment, therefore, the Court affirmedmore explicitly that the ECHR has a sub-constitutionallevel and that it does not enter into the constitutionalparameter. ECHR is not part of EU Treaty and, accordingly,it does not enter into our legal order through art. 11; itis not equivalent to the norms of Nice. On the basis of theLisbon Treaty the ECHR is only a source of “generalprinciples of community law”. This applies only to thematters in which the same Community law is applicable,based on the division of competences between the Union andMember States.

In recent years the case-law of the ItalianConstitutional Court related to the ECHR legal effect seemsto be fluctuating. Despite decision 80/2011, in decision113/2011 the Court declared the art. 630 of the Code of26 A. Tizzano, Les cours européennes et l’adhésion de l’Union à la CEDH, in Il Dirittodell’Unione Europea, 2011, 29 ss.

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Criminal Procedure unconstitutional in the part in which itdoes not provide for the review of a trial if the criminaljudgment is in contrast with a final judgment of the Courtof Human Rights that has confirmed the lack of fairness ofthe process. In decisions 181/2011 and 257/2011, the Courtstated that it is necessary to verify if the contrastbetween internal rules and norms of the ECHR (asinterpreted by the Strasbourg Court) can not be resolvedthrough interpretation and whether the provisions of theECHR invoked as the integration parameter (so-called“interposed” provisions) are compatible with the Italianconstitutional order27.

27 On the matter: E. Lamarque, The Italian Courts and interpretation in conformitywith the Constitution, EU law and the ECHR, in Rivista AIC, n. 4, 2012, pp. 1-26; P.Mengozzi, Corte di giustizia, giudici nazionali e tutela dei principi fondamentali degli Statimembri, in Il Diritto dell’Unione Europea, 3/2012, pp. 561-576.

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