The work analyses the problem of the division of decision-making power between the Court of Justice and the Italian Constitutional Court, when a national provision is contrary to a provision of European law.
The topic will be examined in relation to the principle of non-discrimination, in order to offer an extensive reconstruction of the relationship between the Courts within the framework of Union law. In particular, we start by the judgment of the Italian Supreme Court no. 12108 (May 17th , 2018) and the consequent referral to the EU Court of Justice for preliminary ruling, which seems contrary to the Constitutional Court's teaching in judgment No. 269/2017. In fact, principles and rights set out in the Charter of Fundamental Rights of the EU intersect to a large extent the principles and rights guaranteed by the Italian Constitution and therefore the violation of the same may require an intervention of the Italian Constitutional Court.
Solidarity and Loyalty are cornerstones of the European Integration process. During the 70’s-80’s, the CJEU invoked loyalty and solidarity to prohibit Member States from supporting national economies with unilateral measures undermining the progressive construction of the internal market. More recently, these constitutional principles recur in the judicial rhetoric assessing the legality of the European Stability Mechanism, adopted by Member States to provide mutual financial assistance during the sovereign debt crisis (Pringle). In the management of massive migration flows, these strands have been invoked to support the legality of the ‘Relocation Decisions’ and the consequent duty to carry out effective relocation of third-country nationals into the territory of Member States different from the frontline ones. The work will therefore offer a contribution to the debate concerning convergences and divergences among these two cardinal principles within the EU constitutional framework.
The aim of this work is to cast a light on recent developments occurred in the ‘rule of law crises’ in Poland and Hungary, moving from some relevant procedural and substantive breakthroughs that come to light from the two rulings held by the CJEU in the Commission v. Poland cases. The mainly legalistic approach adopted by EU institutions to face these crises revealed, as a nemesis, the very political nature of the on-going clash and of the arguments deployed by the actors involved on both sides. Therefore, boosting public debate on the limits of the ‘integration through law’ process seems to be only way – though cumbersome – to deal with the side effects of a strictly legalistic approach to the rule of law crises and to safeguard a jurisdictional and constitutional integration that cannot weigh anymore solely on European and national jurisdictional bodies’ fragile shoulders.
Legal arguments that Constitutional Courts deploy to cushion the impact of Union Law on national law refer to the ‘political and constitutional structure of the State’ ex Art. 4(2) TEU and can be generally called ‘identitarian’. These arguments pose tough questions to the advocates of the European integration: the EU may be forced to a ‘tragic choice’, namely, either tolerating inequalities in the application of EU law or accepting the clash with national ‘identities’.
This work casts brighter light on the identitarian arguments referring to the Italian State. It concerns the procedural lanes that the Constitutional Court has walked as well as the political reasons lying at the roots of the same arguments. The aim is to unveil the purely political points that such arguments conceal and to offer those points to public debate, so that the ‘victims’ of the identitarian choices could trigger a healthy re-politicization of the European public space.
The case law of the Court of Justice has been characterized by the recurrent use of equality as a tool to fill the gap in the interpretation of EU and national constitutional law while simultaneously advancing the integration between the national and constitutional legal order. In the last few years,
however, the combination of the use of equality as a general principle (“equality as a principle”) and in the Charter of Fundamental Rights (“equality as a right”) gave to a number of national constitutional courts reasons to believe that the interpretation of fundamental elements of the EU constitutional legal order could impinge on the noyau dur of national constitutional rights. This reaction has, however, brought consequences in the case law of the Court of Justice of the EU and in the way in which the combination between general principles and the Charter is handled.
The work analyses the preliminary ruling C-581/18 issued by the Higher
Regional Court of Frankfurt and the opinion recently delivered by the Advocate General (“AG”). The referring court questions the compatibility of acts of private autonomy with the non-discrimination principle set forth in Art. 18 TFEU. The case concerns an insurance contract containing a territorial clause that limits the compensation for damages to the sole claims raised within the territory of that Member State alone (France).
The AG maintains that, there being no specific provision of secondary law, the non-discrimination principle could not be interpreted extensively so as to prevail over every clause regulated by the domestic law. Should the CJEU follow his Opinion, a clear inversion would occur with respect to its consolidated case-law aimed at reaffirming the EU’s monopoly in the
guarantee of the fundamental freedoms.