Judicial cooperation – Italian Constitutional Court – National Constitutional Courts’ attitude towards preliminary reference to the European Court of Justice – First and second preliminary reference of the Italian Constitutional Court in indirect proceedings – Constitutional review of national legislation inconsistent with EU law – Relationship between EU law and constitutional concerns – Added value of Constitutional Courts in protecting constitutional identity – Multilevel protection of fundamental rights – EU Framework agreement on fixed-term work and European Court of Justice case law – Italian legislation on fixed-term work – Italian legislation on recruitment in State schools – Abuse arising from the use of successive fixed-term employment contracts – Judicial defence of workers’ rights – Cooperation between judges and legislators – Balancing between social rights and budgetary constraints – Mascolo case – Taricco case
Tenured Assistant Professor of Constitutional Law at the University of Naples ‘Federico II’ and Research Fellow in Law at the Durham Law School.
1 District Court of Naples, Orders of 2 and 15 January 2013; Italian Constitutional Court, Order No. 207 of 2013 (3 July 2013).
2 ECJ 26 November 2014, Joined Cases C-22/13, C-61/13, C-62/13, C-63/13, C-418/13 Raffaella Mascolo v Ministero dell’Istruzione, dell’Università e della Ricerca.
3 Italian Constitutional Court, Decision No. 187/2016 (15 June 2016).
4 According to clause 5 of the Framework Agreement, ‘To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures: (a) objective reasons justifying the renewal of such contracts or relationships; (b) the maximum total duration of successive fixed-term employment contracts or relationships; (c) the number of renewals of such contracts or relationships. 2 […] Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships: (a) shall be regarded as ‘successive’ (b) shall be deemed to be contracts or relationships of indefinite duration’.
5 This due to another domestic provision which states that ‘In any event, infringement of mandatory provisions on the recruitment or employment of workers by public authorities cannot lead to the creation of employment contracts of indefinite duration with those public authorities, without prejudice to any liability or sanction which those authorities may incur. The worker concerned shall be entitled to compensation for damage suffered as a result of working in breach of mandatory provisions …’ (Art. 36(5) of Legislative Decree No. 165/2001, as amended by Law No. 102 of 3 August 2009).
6 As per Art. 97 of the Italian Constitution, ‘Public offices are organised according to the provisions of law, so as to ensure the efficiency and impartiality of administration… Employment in public administration is accessed through competitive examinations, except in the cases established by law’.
7 Art. 10(4a) of Legislative Decree No. 368/2001, as amended by Art. 9(18) of Decree-Law No. 70 of 13 May 2011 (‘Decree-Law No. 70/2011’) converted by Law No. 106 of 12 July 2011.
8 They include, in ranking order, teachers who have passed a competition, but have not been able to obtain a tenured post and teachers who have attended specialisation courses leading to certification of their teaching skills.
9 The decision adopted in the field of State schools is consistent with a more general attitude to subject several sectors of public employment to financial tightening (blocking either the recruitment or the possibility to turn over), because of the economic crisis and the growing public debt of Italy.
10 Well before the Mascolo saga exploded, national judges were called to defend workers’ rights stemming from EU law. For an outline see Sciarra, S., ‘Trusting Judges to Deliver Change: Italy, the EU, and Labour Law’, in C. Barnard (ed.), The Cambridge Yearbook of European Legal Studies, Vol. 9, 2006-2007 (Hart 2007).
11 Supreme Court of Cassation, Decision No. 10127/2012 (20 June 2012).
12 While part of the legal doctrine on the Cilfit criteria emphasised that ‘the Court, recognizing that it could not in any case coerce the national courts into accepting its jurisdiction, concedes something – a great deal in fact, nothing less than the right not to refer if the Community measure is clear – to the professional or national pride of the municipal judge, but then ... restricts the circumstances in which the clarity of the provision may legitimately be sustained to cases so rare that the nucleus of its own authority is preserved intact’ (see Mancini, GF and Keeling, DT, ‘From CILFIT to ERT: The Constitutional Challenge Facing the European Court’, 11 Yearbook of European Law (1991), there are many examples showing that the recourse to the Cilfit doctrine can be possibly abused by judges not willing to cooperate with the ECJ.
13 F. Capotorti, ‘L’Europa dei diritti sociali non tollera la precarizzazione nel settore scolastico italiano: alcune riflessioni sulla sentenza Mascolo e sui suoi riflessi sul piano nazionale’, Eurojus.it (14 January 2015).
14 While the Supreme Court of Cassation is ‘a court against whose decisions there is no judicial remedy under national law’ as per Art. 267 TFEU, the District Court of Naples is an ordinary court.
15 District Court of Naples, Order of 15 January 2013.
16 It is worth recalling that although the legal act to be scrutinised before the Constitutional Court is the above-mentioned Act of Parliament on School staff enabling successive temporary renewal of contracts (in particular Art. 4, paras. 1-11, of the Law No. 14/1999), its inconsistency with EU law is based also on the fact that the legislative decree implementing the Framework Agreement on fixed-term work – contemplating appropriate measures to prevent abuses – excludes from its scope of application the public education sector.
17 The ordinary judges explicitly recall the case law of the ECJ which clarifies that clause 5 of the Framework Agreement is neither unconditional nor sufficiently precise to be relied on by an individual before a national court (ECJ 15 April 2008, Case C-268/06, Impact v Minister for Agriculture and Food and ECJ 23 April 2008, Joined Cases C-378 to 380/07, Angelidaki v Organismos Nomarchiakis Autodioikisis Rethymnis).
18 The Italian Constitutional Court accepted the Simmenthal doctrine with the leading case Granital (No. 170/84). Nevertheless, the Court allowed ordinary courts to set aside national acts inconsistent with EU law unless the fundamental Italian constitutional principles and rights are at stake, in which situation they should refer the case to the Constitutional Court.
19 Indeed, according to Italian law, where national legislation violates EU legislation endowed with direct effect, ordinary judges can set aside national law and apply EU law. By way of contrast, where national legislation violates EU legislation not endowed with direct effect, ordinary judges need to ask the Constitutional Court to declare it void. On the latter aspect, see Mastroianni, R., ‘Conflitti tra norme interne e norme comunitarie non dotate di efficacia diretta: il ruolo della Corte costituzionale’, 3 Diritto dell’Unione europea (2007).
20 For a historical account of the reasons which lead the Italian Constituent Assembly to introduce a single body in charge of the guarantee of the Constitution in 1948 see Pasquino, P., ‘New Constitutional Adjudication in France: The Reform of the Referral to the French Constitutional Conseil in light of the Italian Model’, Indian Journal of Constitutional Law (2009) p. 105 at p. 116-117.
21 The constitutional reform envisaged by the constitutional law no. 3 of 2011 modified Art. 117, para. 1, of the Constitution. The new text requires the legislation enacted by both the State and Regions to respect three sets of limits: one deriving from the Constitution itself, which is at the apex of the hierarchy of norms; another one deriving from the EU legal order and another one deriving from international obligations. Art. 117, para. 1, indeed, states that ‘Legislative power shall be vested in the State and in the Regions in compliance with the Constitution and with the constrains deriving from EU legislation and international obligations’. On the significance of the provision, see, among others, C. Pinelli, I limiti generali alla potestà legislativa statale e regionale e i rapporti con l’ordinamento comunitario, V Foro italiano (2001) p. 145 ss.
22 The leading judgment on this is No. 216/2010, which, to respect the ECJ ruling stemming from the first preliminary reference of the Constitutional Court, invalidates regional legislation for its inconsistency with EU law (and consequently with Art. 117, para. 1, of the Constitution). Nevertheless, before that, the Court also established that the novel formulation of Art. 117 allowed EU law to act as a parameter in scrutinising national legislation (see for example judgments No. 129/2006, 406/2005, 166 and 7/2004). Moreover, it is worth specifying that on some occasions the Italian Constitutional Court invalidated regional legislation for inconsistency with EU law – through Art. 117, para. 1 – without referring the question to the ECJ (see 226/2010; 387/2008; 165/2009).
23 Although Art. 117 of the Constitution, as amended in 2001, is the very first reference to the European legal order into the Italian Constitution, Art. 11 is also invoked as a parameter because, in permitting the State to limit its national sovereignty in favour of international organisations favouring peace and prosperity, it constitutes, since the 1948 first version of the Italian Constitution, the ‘sound foundation’ of Italian membership to the EU, as the Constitutional Court itself defined it.
24 Art. 4, paras. 1 and 11 of the Law of 3 May 1999, no. 14 (‘Urgent provisions on school staff’).
25 It is interesting to note that the Italian Government suggested to declare the question inadmissible and unfounded, see paras. 19-21 of order no. 207/2016.
26 For an English-language comment see Pollicino, O., ‘From Partial to Full Dialogue with Luxembourg. The Last Cooperative Step of the Italian Constitutional Court’, 10 EuConst (2014) p. 143 . For comments in Italian see, among others, B. Guastaferro, ‘La Corte costituzionale ed il primo rinvio pregiudiziale in un giudizio di legittimita costituzionale in via incidentale: riflessioni sull’ordinanza n. 207 del 2013’, <www.forumcostituzionale.it>; G. Repetto, ‘La Corte costituzionale effettua il rinvio pregiudiziale alla Corte di giustizia UE anche in sede di giudizio incidentale: non c’e mai fine ai nuovi inizi’, <www.diritticomparati.it>.
27 Italian Constitutional Court, Decision No. 13 of 16 March 1960.
28 The main functions of the Court are enumerated in Art. 134 of the Constitution. An in-depth analysis on Italian constitutional justice see Barsotti, V., et al., Italian Constitutional Justice in Global Context (Oxford University Press 2015).
29 Italian Constitutional Court Order No. 536 of 15 December 1995.
30 Italian Constitutional Court Order No. 102 and 103 of 2008.
31 For English comments to the Order No. 103 of 13 February 2008, see della Cananea, G., ‘The Italian Constitutional Court and the European Court of Justice: from Separation to Interaction?’, 14 European Public Law (2008) p. 523 , and Fontanelli, F. and Martinico, G., ‘Between Procedural Impermeability and Constitutional Openess: The Italian Constitutional Court and Preliminary References to the European Court of Justice’, 16 European Law Journal (2010) p. 345 .
32 A detailed analysis of both European and national case law on fixed-term work is in V. De Michele, S. Galleano, ‘La sentenza ‘Mascolo’ della Corte costituzionale sui precari della scuola’, in www.europeanrights.eu e A. Paolitto, ‘Il precariato scolastico tra ‘la buona scuola’ e il dialogo ‘multilevel’ delle corti: l’occasione per un bilancio’, giustiziacivile.com (2016).
33 The Italian provision in question is Art. 36, para. 5 of Legislative Decree 30 March 2001, No. 165 (General Rules on the Organization of Employment by the Government); the order in question is ECJ, Order of the Court (Sixth Chamber) of 1 October 2010, Case C-3/2010, Affatato v Azienda sanitaria provinciale di Cosenza.
34 See in particular point 40 of the just-mentioned Affatato case.
35 The Italian Constitutional Court deemed the provision consistent with Art. 3 (enshrining the principle of equality) and Art. 97 of the Constitution though Decision No. 89 of 2003.
36 ECJ, Order of the Court (Sixth Chamber) of 1 October 2010, Case C-3/2010, Affatato v Azienda sanitaria provinciale di Cosenza, para. 42, emphasis added. See also ECJ 7 September 2006, Case C-53/04, Marrosu e Sardino v Azienda ospedaliera Ospedale San Martino di Genova, para. 49; ECJ 23 April 2009, Joined Cases C-378 to 380/07, Angelidaki, paras 161 and 184; ECJ 7 September 2006, Case C-180/04, Vassallo v Azienda ospedaliera Ospedale San Martino di Genova, para. 34; and ECJ Order of the Court (Third Chamber) of 12 June 2008, Case C-364/07, Vassilakis, para. 123.
37 ‘The framework agreement on fixed-term work ... must be interpreted as precluding measures provided for by national legislation, such as that at issue in the main proceedings, which, in the event of misuse by a public employer of successive fixed-term employment contracts, provides solely for the right for the worker concerned to obtain compensation for the damage which he considers himself to have therefore incurred, without any transformation of the fixed-term employment relationship into an employment relationship for an indefinite period, where the right to that compensation is subject to the obligation on that worker to prove that he was forced to forego better work opportunities, although the effect of that obligation is to render impossible in practice or excessively difficult the exercise by that worker of rights conferred by European Union law’ (Order of the Court (Eight Chamber) of the 12 December 2013, Case C-50/13, Rocco Papalia v Comune d’Aosta).
38 As per Art. 33, ‘… The Republic guarantees the freedom of the arts and sciences, which may be freely taught. The Republic lays down general rules for education and establishes state schools for all branches and grades….’. As per Art. 34, ‘Schools are open to everyone. Primary education, which is imparted for at least eight years, is compulsory and free. Capable and deserving pupils, including those without adequate finances, have the right to attain the highest levels of education. The Republic renders this right effective through scholarships, allowances to families and other benefits, which shall be assigned through competitive examinations’.
39 ECJ 26 January 2012, Case C-586/10, Kücük v Land Nordrhein-Westfalen, paras. 30-31.
40 On the interaction of the ruling on other significant labour law cases see V. De Michele, ‘La sentenza Mascolo sul precariato pubblico e i controversi riflessi sull’ordinamento interno’, available at <www.europeanrights.eu/public/commenti/Bronzini23-De_Michele_-_la_sentenza_Mascolo.pdf>, p. 1 at p. 26-29.
41 According to the referral orders of national judges to the ECJ, this is the normative framework stemming from a joint reading of the Law (Act of Parliament) No. 124/1999 (‘Urgent provisions on school staff’) and of the Legislative Decree No. 368/2001 implementing the Directive and the Framework Agreement on fixed-term work.
42 Mascolo. See in particular paras. 72-83.
43 Mascolo. See in particular paras. 75-80.
44 Mascolo para. 75, mentioning also the judgment in ECLI:EU:C:2014:2044, Fiamingo, para. 59 and the case law cited therein.
45 Mascolo. paras. 84-85. In particular, in para. 86, the ECJ recalled that ‘signatory parties to the Framework Agreement considered that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see judgments in Adeneler, EU:C:2006:443, para. 67, and ECLI:EU:C:2014:2044, Fiamingo, para. 58)’.
46 Mascolo, para. 87 (Italics added by the author), quoting also the judgment in ECLI:EU:C:2012:39, Kücük, para. 27 and the case law cited.
47 Mascolo, para. 91, quoting judgments in ECLI:EU:C:2009:250, Angelidaki, paras. 101 and 102, and Kücük, para. 30).
48 Mascolo, paras. 92-93, quoting Kücük, para. 31, 32, 33.
49 Mascolo, para. 94.
50 Mascolo, para. 95.
51 Mascolo, para. 96.
52 Para. 104.
53 Para. 105.
54 Paras. 100-103.
55 Para. 109.
56 Paras. 97 and 106.
57 Paras. 114-115.
58 Para. 116.
59 Para. 117.
60 For Italian comments on the ECJ judgment see Cimino, B., ‘Caso Mascolo: le supplenze nella scuola’, Quaderni costituzionali (2015) p. 205-208 ; Ghera, F., ‘I precari della scuola tra Corte di giustizia, Corte Costituzionale e giudici comuni’, Giurisprudenza costituzionale (2015) p. 157 ; Lattanzi, S., ‘Il conflitto tra norma interna e norma dell’Unione europea priva di effetti diretti nella vicenda dei precari della scuola italiana’, Il diritto dell’Unione Europea (2015) p. 897 ; Saltari, L., ‘La precarietà del lavoro nella scuola italiana nel difficile dialogo tra le Corti’, Giornale di diritto amministrativo (2015) p. 219 .
61 See Art. 1, para. 98 of Law 107/2015.
62 See Art. 1, paras. 110-113 of Law 107/2015.
63 See Art. 1, para. 131 of Law 107/2015.
64 See Art. 1, para. 132 of Law 107/2015. A criticism to the choices of the Italian legislator, not perfectly in line with the ECJ ruling is in De Michele, supra n. 40, p. 1 at p. 55.
65 See the Official press release of the Ministry of the Education, University and Research of 19 November 2015 at <hubmiur.pubblica.istruzione.it/web/ministero/cs191115bis>, visited 17 July 2017.
66 According to the estimation of Italian Government, Italian reform which goes under the name of ‘Buona Scuola’ moves from the necessity to grant tenure to almost 150,000 temporary workers in the field of public education starting from 1 September 2015.
67 It is worth recalling that, in point 117 of the Mascolo ruling the ECJ stated that since the possibility for a temporary worker of getting a tenured position (being based on the progressing up in the ranking list or on unplanned competitive selection procedure) ‘is dependent of chance, it cannot be regarded as a penalty that is sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework agreement are fully effective’.
68 Italian Constitutional Court, Decision No. 187 of 2016, para. 18 considerato in diritto.
69 Para. 11 ss, considerato in diritto.
70 Para. 15, considerato in diritto. The Court recalled para. 79 of the ECJ ruling: ‘Therefore, where abuse of successive fixed-term employment contracts or relationships has taken place, a measure offering effective and equivalent guarantees for the protection of workers must be capable of being applied in order duly to punish that abuse and nullify the consequences of the breach of EU law (judgment in ECLI:EU:C:2014:2044, Fiamingo, para. 64 and the case law cited). Italics added by the author.
71 On the difference between ‘outcome’, ‘guidance’, and ‘deference’ cases see Tridimas, T., ‘Constitutional Review of Member State Action: The virtues and vices of an incomplete jurisdiction’ 9(3-4) ICON (2011) p. 737 . In answering preliminary questions referred by national courts, the ECJ enjoys a broad discretion in determining the level of detail of its answers. According to Tridimas’ classification, the Court indeed ‘may give an answer so specific that it leaves the referring court no margin for manoeuvre and provides it with a ready-made solution to the dispute (outcome cases); it may, alternatively, provide the referring court with guidelines as to how to resolve the dispute (guidance cases); finally, it may answer the question in such general terms that, in effect, it defers to the national judiciary (deference cases)’.
72 A critical position against the Court’s choice is in R. Calvano, ‘“Cattivi consigli” sulla “Buona scuola”? La Corte esclude il risarcimento del danno per i docenti precari della scuola in violazione della sentenza della Corte di giustizia sul caso Mascolo’, Giurisprudenza costituzionale (2016). According to the author, the decision not to grant the right to damages also to teachers does not fulfil the obligations under EU law: even if there is a serious chance for teachers to get a tenured position in light of the new legislation, they might not do it, and in this case they would not get any compensation for the abusive use of fixed-term contracts.
73 ECJ 26 November 2014 Mascolo, para. 110 (see, by analogy, the judgment in ECLI:EU:C:2013:683, Thiele Meneses, para. 43 and the case law cited).
74 The measure abolishing the equalisation mechanism of some pension benefits for two years (2012 and 2013), namely para. 25 of Art. 24, of the Law Decree No. 201 of 6 December 2011 (Urgent Provisions for Growth, Equity and Consolidation of Public Accounts), than converted into law, was deemed to violate Art. 36, para. 1 of the Constitution (granting workers a remuneration ensuring them and their families a free and dignified existence), and Art. 38, para. 2, of the Constitution (granting workers the right to be assured adequate means for their needs in the case of accidents, illness, disability, old age and involuntary unemployment), in connection with the general principles of solidarity and substantive equality enshrined – respectively – in Arts. 2 and 3 of the Constitution.
75 Holmes, S. and Sunstein, C.R., The Costs of Rights – Why Liberty Depends on Taxes (New York 1999).
76 Italian Constitutional Court, Decision No. 70 of 2015. An interesting critical appraisal of the judgement, of its consistency with previous case law of the Italian Constitutional Court on the debate, developed already in the 1980s, about the ‘costs’ of Constitutional Court’s judgments (i.e. of their impact on public finance) is in Barbera, A., ‘La sentenza relativa al blocco pensionistico: una brutta pagina per la Corte’, 2 Rivista AIC (2015).
77 A recent constitutional amendment (Law No. 1 of 20 April 2012) changed the Italian Constitution in the light of EU guidelines on balanced budget. Art. 81 of the Constitution in its novel formulation states that ‘The State shall balance revenue and expenditure in its budget, taking account of the adverse and favorable phases of the economic cycle’. With the 2012 constitutional amendment, explicit references to EU law were introduced in Art. 97 and Art. 119, which require, respectively, public administrations and lower levels of government (such a as Regions, municipalities etc.) to ensure compliance with the economic and financial constraints deriving from the European Union. For a recent overview see the country-report on Italy in the European Parliament study (DG for Internal Policies, Policy Department C: Citizens’ rights and Constitutional Affairs) written by Besselink, Claes, Imamovic, Reestman, National Constitutional Avenues for further European Integration, p. 147-158, available at <www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493046/IPOLJURI_ET%282014%29493046_EN.pdf>.
78 See for example Italian Constitutional Court, Decision No. 10/2015, where the Court invalidated national legislation introducing the so-called ‘Robin tax’, but stated that the retroactive application of its ruling could have entailed a significant violation of Art. 81 of the Constitution and of the principle of balanced-budget herein enshrined. The necessary respect of this principle, and of the connected principle of the sustainability of public debt, was emphasised also in other Decisions of the Court (for example No. 88 of 2014). It is worth emphasising that the issue of the cost of rights in light of the economic crisis is quite sensitive in Italy, and that the Constitutional Court in its balancing exercise has sometimes put on an equal footing social rights and the budgetary constraints envisaged by Art. 81 of the Constitution (as in Judgment No. 10/2015 on the Robin tax), some other times asserted the primacy of social rights on budgetary constraints and financial consideration (as in the above-mentioned Judgment No. 70/2015 on pensions contribution). For an analysis of the contradictory content of these two judgments (surprisingly both issued in the same year) see, among others A. Morrone, ‘Ragionevolezza a rovescio: l’ingiustizia della sentenza n. 70/2015 della Corte Costituzionale’, in federalismi.it (20 maggio 2015) and Anzon Demming, A., ‘Una sentenza sorprendente. Alterne vicende del principio dell’equilibrio di bilancio nella giurisprudenza costituzionale sulle prestazioni a carico del pubblico erario’, 2 Giurisprudenza Costituzionale (2015).
79 In light of the so-called ‘dual preliminarity’ principle established by the Italian Constitutional Court, before referring to the ICC a question on the constitutionality of the domestic provision, the common judge should first assess the compatibility of the same provision with EU law, after referring a preliminary reference to the ECJ if need be. The reasoning underlying this procedural guideline is well explained in Corte costituzionale, Decision No. 284 of 4 July 2007, but see also Orders No. 536 of 1995, No. 108 of 1998, No. 115 of 2008 and No. 100 of 2009. Interesting consideration on how the ‘double preliminarity’ principle, conceived to allow the Court to have the last word in the judicial dialogue involving also the ECJ and the ordinary judge, proved to be a ‘judicial boomerang’ excluding the Italian Constitutional Court from dialogue are in Pollicino, supra n. 26, p. 146-147.
80 An explanation of this attitude is in S. Cassese, ‘Ordine giuridico europeo e ordine nazionale’, Giornale di diritto amministrativo, 2010. On how the Italian Court interacts with European Courts, see G. Amato, Corte costituzionale e Corti europee [The Constitutional Court and the European Court] (Il Mulino 2015).
81 Claes, M., et al. (eds.), Constitutional Conversations in Europe. Actors, Topics and Procedures (Intersentia 2012).
82 The expression is from M. Cartabia, ‘La Corte costituzionale italiana e la Corte di Giustizia europea: argomenti per un dialogo diretto’ in AA.VV., Diritto comunitario e diritto interno (Giuffrè 2008). In 2011, indeed, Professor Marta Cartabia, a prominent constitutional lawyer who firmly called for a more fruitful dialogue with the ECJ in her academic capacity, joined the Constitutional Court. It is worth remarking that the revirement of the Constitutional Court and its open and cooperative attitude with the ECJ is also due to the changing in the composition of the Court (that in recent years included some judges very sensitive towards EU law), as well as to the sensitivity of the Judge-Rapporteur Sergio Mattarella.
83 Komárek, J., ‘National constitutional courts in the European constitutional democracy’, 12(3) I-CON (2014) p. 525 at p. 527. For an analysis of the ECJ case law fostering this displacement see also Komárek, Jan, ‘The Place of Constitutional Courts in the EU’, 9(3) EuConst (2013) 420 .
84 Italian Constitutional Court, Order No. 24 of 2017, following the Taricco case of the ECJ.
85 Millet, F., ‘How much lenience for how much cooperation? On the first preliminary reference of the French Constitutional Council to the Court of Justice’, 51 Common Market Law Review (2014) p. 195 .
86 The expression is by Maduro, M. and Grasso, G., ‘Quale Europa dopo la sentenza della Corte costituzionale tedesca sul Trattato di Lisbona’, 3 Il Diritto dell’Unione europea, (2009), qualifying as ‘aggressive’ the position of the German Constitutional Court in the Lissabon Urteil. The opposition between national constitutional Courts and the ECJ mainly developed around the issue of primacy, being the ‘European perspective’ based on ‘absolute supremacy’ and the ‘national perspective’ on ‘relative supremacy’. For an overview see Schuetze, R., European Union Law (Cambridge University Press 2015) p. 117-134 .
87 M. Cartabia, ‘On Bridges and Walls’, lecture delivered at the 2016 ICON-S Conference Borders, Otherness and Public Law – Berlin, 17-19 June 2016, p. 11, in comparing the Italian Mascolo saga with the German OMT one, states ‘the Italian style was different from the German one. The former showing a lenient disposition; while the latter an assertive spirit. Both, however taking a constructive step in a critical juncture’. The position of the two Constitutional Courts is analysed and compared also in S. Sciarra and G. Nicastro, ‘“Speech Acts” and Judicial Conversations. Preliminary References from the Italian Constitutional Court to the Court of Justice of the European Union’, in CSF – SSUP Working Papers Series, no. 1/2016. Some criticisms to this assertive spirit of the German Constitutional Court can be found in the articles published in the Special Issue, The OMT Decision of the German Federal Constitutional Court, 15 German Law Journal (2015).
88 The distinction between the ultra vires review and the identity review is theorised in the Lissabon Urteil (para. 240), but the ‘national constitutional identity’ discourse pervaded several Constitutional Courts. It is not possible to account for similarities and dissimilarities among national constitutional Courts in this context, also because sometimes the very same Court changed its own narrative (interesting consideration on how the same German Constitutional Court changed its constitutional identity narrative in the Gauweiler case, by detaching it from the link with Art. 4.2 TEU theorised in the Lissabon Urteil, can be found in Claes, M. and Reestman, J. ‘The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case’, 16(4) German Law Journal (2015) p. 917).
89 The Court might so shift away from the ‘indirect dialogue’ (namely filtered by the ordinary judge’) upon which see Martinico, G., ‘Judging in the Multilevel Legal Order: Exploring the Techniques of Hidden Dialogue’, 21 King’s Law Journal (2010) p. 257 ff.
90 Italian Constitutional Court, Order No. 24 of 2017, following the ECJ Taricco ruling explored below.
91 ECJ 21 March 2000, Joined Cases C-110/98 to C-147/98, Gabalfrisa v Agensia statal. At para. 33 the Court states: ‘In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin  ECR I-4961, paragraph 23, and the case law cited therein)’.
92 Italian Constitutional Court, Order No. 244 of 9 June1994.
93 Italian Constitutional Court, Order No. 165 of 26 May 2004.
94 District Court of Naples, Order of 15 January 2013.
95 The infringement proceeding is the No. 2010/2124.
96 Cartabia, supra n. 87, p. 11.
97 This is the thesis of Millet, supra n. 85 at p. 195, according to which ‘In response to a cooperative Conseil, the ECJ displayed its willingness to accommodate the requirements deriving from domestic constitutional law. In doing so, it offered a positive illustration of Melloni and Akerberg Fransson by promoting the application of national standards of protection of human rights in cases falling within the scope of application of EU Law, yet not entirely determined by it’.
98 It is interesting to note that no argument related to national constitutional identity, or to Art. 4.2 TEU, was made by the Italian Constitutional Court, differently from what happened in the following Taricco case.
99 Mascolo, paras. 40-44.
100 Mascolo, paras. 89-113.
101 As stated in Costa v Enel, the landmark decision on supremacy of EU law, ‘the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed’.
102 See Case C-473/93, Commission v Luxembourg  ECR I-3207, para. 38 (as quoted in Craig, P. and de Burca, G., EU Law. Text, Cases, Materials (Oxford University Press 2011) p. 260). On the persistent question of contested constitutional authority in the EU (between the ECJ, on the one hand, and national Constitutional Courts, on the other) see de Burca, G. and Weiler, J., The Worlds of European Constitutionalism (Cambridge University Press 2012).
103 Good examples in which domestic provisions of constitutional relevance definitely lost vis-à-vis EU law in the ECJ’s balancing exercise are the Tania Kreil case (concerning the German Constitution) and the Michaniki case (concerning the Greek constitution). The latter has been deemed ‘difficult to square with the line taken by the Court in Omega’, so it must be acknowledged how some constitutional principles of particular significance, such as the human dignity that was concerned in the Omega case, deserved more consideration (see Besselink, L., ‘National and Constitutional Identity Before and After Lisbon’, 6(3) Utrecht Law Review (2010) p. 36 at p. 48).
104 See in particular paras. 36-41 of the Affatato order.
105 This interesting if we consider that the District Court of Rossano even claimed that, should EU law preclude Italian legislation (that the ECJ, in any case, denied), this could have infringed upon national fundamental constitutional structures, thus violating Art. 4.2 TEU.
106 ECJ 23 April 2008, Joined Cases C-378 to 380/07, Angelidaki v Organismos Nomarchiakis Autodioikisis Rethymnis; see para. 181 of the case.
107 Ivi, see in particular paras. 179-189.
108 Ivi, para. 181.
109 However, this it not always the case. In the Melloni judgment, concerning a possible contrast between the European Arrest Warrant legislative framework and the right to defence as protected by the Spanish constitutional order, the ECJ did not pay that much attention to the arguments developed by the Spanish Constitutional Court.
110 The Lisbon Treaty offers a new legal basis, such as Art. 4.2 TEU (requiring the EU to respect member states’ national identities) holding a strong constitutional potential if adequately used by all national actors and institutions – not necessarily a judicial one – to feed the European discourse with national concerns rather than in sharp opposition with the supremacy doctrine (on this reading of the clause see Guastaferro, B., ‘Beyond the Exceptionalism of Constitutional Conflicts. The Ordinary Functions of the Identity Clause’, Yearbook of European Law (2012) p. 263-318).
111 As noticed, this is particularly important in light of the fact that the ECJ might not necessarily interpret fundamental rights with the same constitutional sensibility of national constitutional courts. On the tensions between national and European discourse see Cartabia, M., ‘Europe and Rights: Taking Dialogue Seriously’, 5 EuConst (2009) p. 5 ff, and Spaventa, E., ‘Federalisation versus Centralisation: tensions in fundamental rights discourse in the EU’, in M. Dougan and S. Currie (eds.) 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart Publishing 2009) p. 343-364 .
112 ECJ 8 September 2015, Case C-105/14, Ivo Taricco and Others.
113 The directly effective nature of Art. 325 TFEU, upon which the ECJ builds the obligation for national judges to set aside national law to apply EU law, is indeed one of the most controversial aspect of the ECJ Taricco ruling, and it has been sharply criticised in scholarly literature. See, among others, Luciani, M., ‘Chi ha paura dei controlimiti’, 4 Rivista AIC (2016) and R. Bin, ‘Taricco: una sentenza sbagliata, come venirne fuori’, in Diritto penale contemporaneo, 4 luglio 2016.
114 The Court elaborated the ‘controlimiti doctrine’ in Judgement Frontini (No. 183/1973), and then confirmed it in the Granital judgment (No. 170/84) and in the Fragd judgment (No. 232/1989). The doctrine basically asserts that EU law is entitled to prevail upon inconsistent national law (thanks to Art. 11 of the Constitution allowing for limitations of sovereignty in favour of international organisation protecting peace) as long as EU law does not infringe upon core fundamental values and principles of the Constitution. Should this be the case, the Constitutional Court could invalidate the Law ratifying EU Treaties at least in the part which allows EU law to have effect into the domestic legal order. Also, other European Courts then followed the ‘controlimiti’ doctrine, which resembles the identity review theorised by the German Constitutional Court in the Lissabon Urtelil (see para. 240).
115 In the Mascolo case, the question reached the Constitutional Court because national law was deemed inconsistent with non directly effective EU law (thus preventing national judges from setting aside national law and obliging them to refer the question to the Constitutional Court), whereas in the Taricco case, the question reached the Constitutional Court because the national judge called to set aside national legislation inconsistent with directly effective EU law, found this in breach of a fundamental principle of the Italian Constitution and asked the Constitutional Court to apply the ‘controlimiti doctrine’.
116 Italian Constitutional Court, Order No. 24 of 2017. For comments emphasising the willingness of the Court to entertain a dialogue with the ECJ see M. Bassini and O. Pollicino, ‘The Taricco Decision: a Last Attempt to Avoid the Clash between EU Law and Italian Constitution’, in verfassungsblog.de (28 January 2017) and D. Tega, ‘Narrowing the Dialogue. The Italian Constitutional Court and the Court of Justice on the Prosecution of VAT Frauds’, I.CONnect blog (14 February 2017). It would be not possible to mention the several contributions by Italian scholarship: an open access source collecting many of the published case-notes to the order is available at <www.giurcost.org/decisioni/2017/0024o-17.html>, visited 17 July 2017.
117 For this reason some scholars qualified the referral order as an ‘ultimatum’ to the ECJ. See, in particular, A. Ruggeri, ‘Ultimatum della Consulta alla Corte di giustizia su Taricco, in una pronunzia che espone, ma non ancora oppone, i controlimiti (a margine di Corte Cost. n. 24 del 2017)’, in Consulta online, n. 1/2017 (27 gennaio 2017).
118 For example, the Court builds on its previous case law to clarify its interpretation of the limitation period as an institute of substantive law – to be therefore included within the scope of the constitutional principle of legality in criminal matters – despite the fact that in other member states (and in the case law of the European Court of Human Rights) the limitation period is considered as a procedural institution and therefore out of the scope of application of the principle of legality.
119 I qualify as partially cooperative the approach of the Italian Constitutional Court because, although firmly warning the ECJ about the possible use of the ‘controlimiti’ doctrine, it still referred the case to the ECJ to seek interpretative guidance, rather than reverting to the acte clair doctrine (as the Bundesverfassungsgericht does in its judgment of 15 December 2015, concluding that principle of mutual trust enshrined in the European Arrest Warrant Framework Decision is limited by the guarantee of human dignity embedded in Art. 1 of the German Constitution without issuing any preliminary reference to the ECJ). An interesting reading of this latter judgment as a ‘tactical masterstroke’ and a useful comparison with the Melloni case involving the Spanish Constitutional Court is in the Editorial ‘Sandwiched between Strasbourg and Karlsruhe: EU fundamental rights protection’, 12(2) EuConst (2016) p. 213 at p. 215-218.
120 Although the linguistic version of the proverb (which is particularly widespread in the Central and Southern part of Italy) may vary according to the diverse regional dialects, its meaning is the same throughout national territory.
* Tenured Assistant Professor of Constitutional Law at the University of Naples ‘Federico II’ and Research Fellow in Law at the Durham Law School.
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