New trends in the case law of the Italian Constitutional Court on the treatment of national acts conflicting with the Charter: a problematic judicial ‘quartet’?

The Italian Constitutional Court – after a long period of well-settled relations between the Court of Justice, national judges, and itself – has delivered, in recent years, a series of path-breaking decisions aimed at a significant recasting of its role vis-à-vis other judicial actors. In the well-known Taricco saga,^{Footnote 7} the Italian Constitutional Court challenged the assessment of the Court of Justice concerning the alleged duty of domestic judges to retroactively disregard criminal rules by invoking its power to safeguard the inviolable content and scope of constitutional guarantees in criminal matters as a limit to the effect of EU rules.^{Footnote 8}

With decision n. 269/2017,^{Footnote 9} the Italian Constitutional Court may have unleashed a less striking yet even more pervasive judicial revolution. With a sudden révirement, it announced that national judges are basically prevented from disregarding domestic rules that conflict with the rights enshrined in the Charter; they have to lodge an incidenter proceeding before the Italian Constitutional Court itself, mainly because of the need to preserve the centrality of the constitutional review of fundamental rights enshrined in the Constitution that are at risk of being set aside by an extensive judicial application of the Charter.

In particular, the Italian Constitutional Court has limited judges’ power to directly apply the rights of the Charter, since they are ‘a part of Union law that is endowed with particular characteristics due to the typically constitutional stamp of its contents’ and therefore ‘violations of individual rights posit the need for an erga omnes intervention by this Court, including under the principle that places a centralized system of the constitutional review of laws at the foundation of the constitutional structure’.^{Footnote 10} The Italian Constitutional Court has thus vindicated its right to have the first word in the conflict between domestic law and the rights of the Charter in the framework of the incidenter proceedings, thereby reversing its traditional stance according to which it was up to the judge to directly apply enforceable EU rules and, if necessary, to lodge a preliminary reference with the Court of Justice. Both these tasks have thus been reserved as a matter of priority (though not exclusively, as we will see) by the Italian Constitutional Court, which has the ‘first word’ while leaving the ‘last word’ for the Court of Justice.^{Footnote 11}

The révirement initiated by decision n. 269/2017 on the judicial treatment of national legislation that is in conflict with EU fundamental rights is evidenced, from the outset, by the announcement of a new trend aimed at reversing its previous approach in this field. The basic elements of this new trend can be summed up as follows.

First, the established ‘judicial protocol’ which regulates conflict situations involving internal law and EU rules needs to be modified with regard to the area of fundamental rights, mainly because ‘[t]he principles and rights laid out in the Charter largely intersect with the principles and rights guaranteed by the Italian Constitution (and by other Member States’ constitutions). It may therefore occur that the violation of an individual right infringes, at once, upon the guarantees enshrined in the Italian Constitution and those codified by the European Charter’.^{Footnote 12} The quest for effectiveness and legal certainty in fundamental rights protection requires that such conflict situations are taken charge of by the Italian Constitutional Court itself, even in light of ‘the principle that places a centralized system of the constitutional review of laws at the foundation of the constitutional structure (Article 134 of the Constitution)’.^{Footnote 13}

Second, whenever a national act infringes both the rights of the Charter and the national constitutional rights (so-called ‘dual preliminarity’ situations), the concurrence of judicial remedies has to be managed by the domestic court in the light of Melki ^{Footnote 14} and A v B ^{Footnote 15} judgments of the Court of Justice, according to which EU law does not preclude the prior involvement of national constitutional courts,

Third, as a final step in this line of reasoning, the Italian Constitutional Court imposes a duty for the domestic judge to activate an incidenter constitutional review ‘where a law is the object of doubts concerning the rights enshrined in the Italian Constitution or those guaranteed by the Charter of Fundamental Rights of the European Union in those contexts where EU law applies’ (lit.: ‘in ambito di rilevanza comunitaria’), even though – in line with Melki – the ‘possibility of making a referral for a preliminary ruling for matters of interpretation or of invalidity of Union law, under Article 267 TFUE’ must in any case be respected.^{Footnote 17}

Upon publication, this decision gave rise to either concern or enthusiasm. The insistence of the Italian Constitutional Court on the revitalisation of centralised constitutional review in the field of fundamental rights raised concern about its compatibility with the so-called ‘Simmenthal mandate’, in particular with the duty of the domestic judge to refer questions to the Court of Justice and to consequently disapply internal law without any procedural limitation.^{Footnote 18} In the same line, some scholars have complained about the unjustified abandonment of well-established procedures and, in particular, have highlighted the risk of depriving judges of their role as the gatekeepers of EU rights in domestic law.^{Footnote 19} At the other end of the spectrum, many have warmly welcomed the re-centralisation of fundamental rights adjudication and, in particular, the renewed importance of national constitutional rights.^{Footnote 20}

Our impression is that the implications of this decision are much more blurred; in particular, it does not represent per se a hostile approach vis-à-vis the Court of Justice.

One initially detects, in the decision, a clear intention to reaffirm the European commitment of the Italian Constitutional Court, in particular by emphasising the need for a ‘framework of constructive and loyal cooperation between the various systems of safeguards, in which the constitutional courts are called to enhance dialogue with the ECJ (…), in order that the maximum protection of rights is assured at the system-wide level (Article 53 of the EUCFR)’.^{Footnote 21} This duty of loyal cooperation is put to the test, however, when the Italian Constitutional Court recalls the Melki jurisprudence in order to set the reasons for and the limits of requests for its prior involvement whenever the rights of the Charter are at stake, combined with the persisting need to preserve the primacy and direct effect of EU law ‘as consolidated in both European and constitutional case law’.^{Footnote 22}

Another crucial point deserving of a closer look is the ‘constitutionalisation’ of the Charter, i.e. the choice, by the Italian Constitutional Court, to use the rights of the Charter as a distinguishing yardstick of constitutional legitimacy. This has, in our opinion, a two-fold objective. On the one hand, it contributes to freeing the Charter from having its rules entrapped within the realm of EU ordinary legislation, thus bolstering its constitutional ambitions at both the European and national levels. On the other hand, this is a necessary step if it is ever to overcome, with regard to fundamental rights, the basic framework that, until recently, has governed the relationship between the Italian Constitutional Court itself and the ordinary judiciary with regard to the implementation of EU rules, i.e. the direct effect doctrine. This mixture of cooperative intent and strategic behaviour hints, at a more basic level, at a way of dealing with constitutional conflict that is able to activate a dialogue without falling into the trap of hierarchical relationships.

The last point is also in need of clarification. The prior involvement of the Italian Constitutional Court and the reversal of previous judicial protocols does not result in a separation between the national catalogue of rights and those enshrined in the Charter. Although decision 269/2017 is not the final word in this matter, it follows from its reasoning that the Italian Constitutional Court plans to adjudicate, from now on, fundamental rights cases, if so requested by the referring judge, on the basis of the interplay between constitutional and Charter rights, since the latter are plainly deemed to be part of the legal parameters of judgment.

Confirmation of such a reading can be found in a triptych of decisions delivered by the Italian Constitutional Court in 2019, i.e. nos. 20, 63 and 117. In the first decision, the Italian Constitutional Court had to strike a balance between privacy and transparency in a case concerning the disclosure of the personal financial data of public servants. The case involved the application of both national and European rights, in particular the principle of equality (Article 3 of the Italian Constitution) and Articles 7 and 8 of the Charter in connection with Articles 6(1)(c), 7(c) and (e) and 8(1) and (4) of Directive 95/46, establishing, in particular, that the processing of personal data must be ‘adequate, relevant and not excessive’. The main question, in this case, was whether and to what extent Article 8 of the Charter had to be interpreted in light of the procedural principles governing data treatment as laid out in the aforementioned directive. According to the Italian Constitutional Court, ‘[t]he principles laid out by the directive are marked, indeed, by a singular connection with the relevant provisions of the CFR, not only in the sense that they provide it with detail or implement it, but also in quite the opposite sense that they constituted the ‘model’ for those rules and, therefore, they can be used as evidence of their nature, as expressed in the Explanations Relating to the Charter of Fundamental Rights’.^{Footnote 23} That interpretation was indirectly upheld by the Court of Justice itself when it stated that those directive rules, although provided with direct effect, must be interpreted in light of the factual circumstances of the case by the national judge,^{Footnote 24} with the consequence that – in the words of the Italian Constitutional Court – ‘there is no truly discernible self-executing regulatory scheme at the European level that applies to the present case’.^{Footnote 25}

Against this background, decision n. 20/2019 clarified a few controversial points that had been left undecided by the 2017 decision.^{Footnote 26} In particular, a clear statement was made on the concurrence of judicial remedies when both sets of rights are called into question; courts are now simply (and more convincingly) invited, not compelled, to refer questions to the Italian Constitutional Court first. The consequence of this is that a court’s ability to lodge a preliminary reference with the Court of Justice remains unaffected at all stages of the proceedings and no matter the issue (even if that particular issue has previously been addressed by the Italian Constitutional Court).^{Footnote 27} One could argue that clarification was needed to avoid conflict with the Court of Justice: the duty to institute a constitutional review procedure could run counter to the parallel duty to disapply internal law, as established in Simmenthal. Resorting to the more viable incidenter procedure does not seem to be per se at odds with the Simmenthal and Foto Frost ^{Footnote 28} mandates. A court could always decide not to institute constitutional review, and even if a response has been requested from the Constitutional Court, the court remains free to lodge a preliminary reference at any time pursuant to Melki.^{Footnote 29} Moreover, in light of the intertwinement of national and supranational guarantees, the Italian Constitutional Court has reiterated in clear terms that its task involves the cumulative application of both catalogues of rights; this is demonstrated by the fact that a balance between privacy and transparency has to be struck ‘in keeping with the domestic constitutional provision cited by the referring Tribunal (Article 3), as supplemented by the principles of European extraction’.^{Footnote 30}

Two further decisions rendered by the Italian Constitutional Court in 2019 have a similar baseline. With decision n. 63/2019, which involved a complex issue related to the non-retroactive effect of a milder provision of criminal law (lex mitior), a step forward was made in terms of the procedural and substantive interplay between national and supranational rights. In particular, the Italian Constitutional Court invoked in clear terms its right to review national legislation even in light of the infringement of Charter clauses ‘that protect, substantially, the same rights of the Constitution’. The final outcome is an increasing internalisation of the Charter via Articles 11 and 117(1) of the Constitution.^{Footnote 31} In addition, common courts are given a wide margin of appreciation when choosing which judicial actor to ask to address preliminary questions: a court remains basically free to decide whether to ‘fly to Luxembourg’ or ‘take a train to Rome’ and in any case the court remains free to disregard domestic law if it conflicts with the Charter – even after the Italian Constitutional Court route has been exhausted.^{Footnote 32}

The latest relevant decision to date was a referral order to the Court of Justice (n. 117/2019) concerning the compatibility of Directive 2003/6/EC and Regulation (EU) n. 596 with Articles 47 and 48 of the Charter, as a result of which the right to remain silent (nemo tenetur se detegere) is not relevant in administrative proceedings concerning the violation of rules meant to counter insider trading.^{Footnote 33} This decision would seem to fill the last remaining gap in the typology of this new phase of judicial interaction; the Italian Constitutional Court has made it clear that the convergence of the two different catalogues of rights cannot be directly enforced at the national level because the internal law implements mandatory provisions of EU law, holding that a preliminary ruling becomes a necessity when national authorities lack such a margin of discretion. In such a situation, a preliminary ruling should be made by Constitutional Court itself (as it did on this occasion) before reviewing the constitutionality of a national implementing act.^{Footnote 34}

As we will demonstrate in the following sections, there are at least two reasons why the recent case law of the Italian Constitutional Court should not be allowed to languish in splendid isolation. It is necessary to contextualise those decisions in light of certain domestic factors in order to understand their roots and rationale. Moreover, it is possible, as stated at the beginning of this article, to read the Italian case as emblematic of a broader trend existing at the comparative level. In the second part of the article, we will consider both the internal and external factors at play in the decisions.

The background, part I: an episode in a domestic judicial war?

In order to understand what provoked the Italian Constitutional Court to deliver decision 269/2017, it is necessary to recall several factors, both judicial and extra-judicial in nature, that epitomise the background of recent judicial developments in Italy. Judicial politics and inter-court competition^{Footnote 35} have always been crucial to the development of EU law; to a certain extent, the Italian scenario is no different. In particular, Professor Augusto Barbera,^{Footnote 36} currently a member of the Italian Constitutional Court, delivered an important speech which offers interesting clues in this respect. On that occasion, Justice Barbera mainly recalled the problematic implications stemming from the constitutional chemistry between the European Convention on Human Rights, the Charter, and the Italian Constitution, i.e. the still ambiguous scope of application of the Charter, the tension brought about by the Taricco saga, and the distinction between rules and principles in the Charter. He shared his concerns about the risk of an ‘overflowing Charter’ (‘una Carta traboccante’),^{Footnote 37} reminded us of the wording of Article 51 of the Charter and the lack of a general competence of the EU in the area of fundamental rights’ protection, and criticised several domestic cases in which common courts had directly applied the Charter^{Footnote 38} in situations that were beyond its scope of application. Finally, Justice Barbera also reconstructed the third element of the fundamental rights’ triangle, i.e. the European Court of Human Rights, and devoted some pages to the post-2007 case law of the Italian Constitutional Court concerning the potential for using the Convention as part of the yardstick employed by the Corte costituzionale. It is worth noting that the post-2007 case law was provoked by judicial dynamics somewhat similar to those at play now with the Charter, as recently confirmed by Justice Viganò in an extra-judicial contribution.^{Footnote 39}

In order to avoid a dangerous (in the eyes of the Corte costituzionale) trend that could have de facto led to a progressive diffusion of the (constitutional) judicial review of legislation, the Italian Constitutional Court decided to centralise the resolution of conflicts occurring between national norms and the European Convention on Human Rights by using the Convention as an external and occasional aspect of the yardstick employed to review the constitutionality of certain pieces of legislation. Even after judgments 348 and 349/2007,^{Footnote 40} there were several episodes of resistance by lower courts and even attempts to involve the Court of Justice, as in the Kamberaj case.^{Footnote 41}

The rationale behind the twin judgments (and the subsequent case law of the Italian Constitutional Court^{Footnote 42}) is the following: national common judges (especially lower courts) could have performed a diffused judicial review of constitutionality in disguise by exercising some sort of control of compliance with the convention. To understand this, it is necessary to recall the ambiguity of the status of the European Convention on Human Rights in the case law of the Corte costituzionale. Since the accession of the Italian legal order to the European Convention on Human Rights was the result of an ordinary law (law 848/1955), the Italian Constitutional Court considered, for a long time and with certain exceptions,^{Footnote 43} that the European Convention on Human Rights was a source of law endowed with primary force, which explains the consequent application of the lex posterior derogat legi priori rule in case of conflict between a law covered by the Convention and another Italian norm. This situation persisted until the 1990s, when the Corte costituzionale, seemingly changing its mind, began to draw a distinction between the content and the form of the laws giving effect to international treaties.^{Footnote 44} In other words, since, from a material point of view, the content of the European Convention on Human Rights aims to protect rights codified in the Italian Constitution, it seemed to be necessary to rethink the previous case law. Another turning point was the constitutional reform of 2001, by which a new version of the first paragraph of Article 117 was adopted. It reads: ‘Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations’. On the basis of this new provision, as the literature has already stressed,^{Footnote 45} Italian common judges started disapplying domestic norms that were in conflict with the European Convention on Human Rights,^{Footnote 46} a mechanism accepted as a consequence of the Simmenthal judgment and aimed at resolving conflicts between directly effective EU law provisions and national norms. Since 2007, the Convention has been viewed as a super-legislative source that could occasionally be used to review the constitutionality of domestic legislation even though it cannot be traced back to the realm of constitutional sources.

What does this have to do with decision 269/2017? Our point here is that the partial centralisation evoked by decision 269 can be explained as a reaction to the risks of the non-correct application (both in terms of scope and content) of the Charter, on the one hand, and as a consequence of the progressive constitutionalisation of EU law, on the other, that has introduced norms that in a way mirrors the contents of certain domestic constitutional norms. We have a system where the coexistence of ‘multi-sourced equivalent norms’^{Footnote 47} has increased rather than decreased the risk of conflict due to the interpretative competition now existing between courts. In order to ensure the correct interpretation of the Charter and its own role as a constitutional interpreter, the Italian Constitutional Court has decided to step in as it did in 2007 with regard to the European Convention on Human Rights. It is interesting to look to some of the academic writing authored by Italian judges for confirmation of this. One of the judges of the Court of Cassation, for instance, described decision 269 as characterised by a ‘lack of trust’ of the Italian Constitutional Court towards the common judges.^{Footnote 48}

The background, part II: elsewhere, in the meantime…

As we have already seen, the obiter dictum included in decision 269/2017 of the Italian Constitutional Court quoted both Melki ^{Footnote 49} and A v B,^{Footnote 50} two decisions that, although they did not originate from preliminary references made by constitutional courts, have in a way contributed to redefining the scope enjoyed by national constitutional interpreters. These references can be read in either way. It is possible to argue that, precisely because of these references, the purpose of that obiter dictum was not to affect the Simmenthal mandate, as the Italian Constitutional Court was very aware of the relevant supranational case law in this ambit. Others instead see in these references a contradiction in the legal reasoning of the Italian Constitutional Court.^{Footnote 51}

In both cases, scholars have stressed the importance of judicial competition in the genesis of these judgments. Melki had its origins in the French reform introduced by Article 61-1 of the French Constitution by which the incidenter control of constitutionality was introduced. This provision was implemented by Organic Law no. 2009-1523, which amended Ordinance no. 58-1067 of 7 November 1958. After that reform, Article 23-5 of the Ordinance, second paragraph, provided for the priority of the question of constitutionality over the review concerning conformity with EU Law. Doubting the compatibility of this provision with the Court of Justice’s case law, the French Cour de Cassation referred a preliminary question to the Court of Justice, asking whether Article 267 TFEU precludes legislation such as that resulting from the French reform ‘in so far as those provisions require courts to rule as a matter of priority on the submission to the Conseil Constitutionnel of the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to European Union law, is in breach of the Constitution?’.^{Footnote 52} Before the Court of Justice pronounced on this, the French Conseil Constitutionnel (on 12 May 2010)^{Footnote 53} had interpreted this provision in a manner consistent with the Simmenthal ^{Footnote 54} and Cartesio ^{Footnote 55} doctrines. In June 2010, the Court of Justice decided to take into account the decision of the Conseil Constitutionnel ^{Footnote 56} which had in the meantime attempted to give an interpretation of the legislation consistent with EU law and with the Court of Justice’s case law. In Melki, the Court of Justice pointed out the necessity of respecting the ‘essential characteristics of the system of cooperation between the Court of Justice and the national courts’.^{Footnote 57} It specified that in no case is it possible, e.g. in proceedings regarding the constitutionality of national legislation implementing a directive, to infer the invalidity of the supranational directive in question from the judgment of a constitutional court declaring the unconstitutionality of the national legislation, since this would result in a violation of the Foto Frost doctrine.^{Footnote 58}

After Melki, things have proceeded – more or less – smoothly between the French Constitutional Council and the Court of Justice, even in a much-discussed case involving the law on the protection of personal data^{Footnote 59} in which certain aspects of the Economie numérique doctrine^{Footnote 60} were extended from directives to regulations. This has been described as characterised by a cooperative flavour notwithstanding the reference to the notion of ‘constitutional identity’. We refer to that case law of the Constitutional Council which reserves special treatment to acts aimed at implementing mandatory provisions of directives. In particular, according to that case law, such domestic acts ‘are not subject to a review of their compatibility with the Constitution (unless France’s constitutional identity is at stake)’.^{Footnote 61} In a more recent decision, the Constitutional Council extended the identity review to regulations as well, stating that

In search of a traditionally euro-friendly Constitutional Court, it is interesting to look at the Austrian scenario. A v B had its origins in a preliminary reference made by the Austrian Supreme Court; commentators have emphasised, even in this case, the impact of judicial friction between national courts. The Austrian case (especially case n. U 466/11-18, U 1836/11-13) is perhaps more relevant than Melki to the reasoning of the Italian Constitutional Court. The latter did indeed refer to a decision of the Austrian Constitutional Court to justify the centralisation of decisions concerning conflict with the Charter, arguing that: ‘Other national constitutional courts with longstanding traditions have followed an analogous line of reasoning (see, for example, the decision of the Austrian Constitutional Court, Judgment U 466/11-18; U 1836/11-13 of 14 March 2012)’.^{Footnote 63} That decision of the Austrian Constitutional Court is interesting for a variety of reasons. First, because the Austrian constitutional court centralised constitutional review by establishing a unitary yardstick which reflected not only the national constitutional norms and the European Convention on Human Rights (which has the rank of a constitutional source in Austria^{Footnote 64}) but also the equivalent norms of the Charter. Second, this decision is relevant because it shows that even traditionally compliant constitutional courts – such as the Austrian one – have been issuing warnings lately concerning the potential misuse of the Charter at the national level. Third, because the Austrian Constitutional Court also referred to the risks connected to the existence of the overlapping zone represented by those shared norms, as recalled by Article 6 TEU and the Charter:

Precisely because of the centralisation of the judicial review carried out in that decision of the Austrian constitutional court, in A v B the Austrian Supreme Court raised a preliminary question in order to clarify the compatibility of this judicial shift with the established case law of the Court of Justice:

The issue of the problematic implementation of the Charter is still debated in Austria. According to Klamert, ‘the primary law status of the Charter under EU law has created frictions in the established division of competences between the highest courts in Austria’.^{Footnote 67} More recently, the Austrian Supreme Court again referred to the Court of Justice regarding the issue of the concept of equivalence of protection.^{Footnote 68}

No similar turmoil has taken place in Germany in recent years. Since the well-known Solange II decision,^{Footnote 69} the Bundesverfassungsgericht has repeatedly stated that the fundamental rights enshrined in the Basic Law and those stemming from EU law have to be kept strictly separated at the constitutional level since they have different spheres of application.^{Footnote 70} It, therefore, comes as no surprise that the Charter, as a legal yardstick, plays almost no role in the case law of the Bundesverfassungsgericht,^{Footnote 71} whereas it can be enforced by common judges whenever a national legal act implements a mandatory rule of EU law. Against this background, the Bundesverfassungsgericht has a powerful role when it is called to utter the ‘last word’ on the compatibility of EU law with the Basic Law (identity control, ultra vires). On the other hand, its role seems to be narrower, according to many scholars,^{Footnote 72} in everyday life. Its shift away from the domestic implementation of the Charter leaves it little latitude when called to evaluate, through the direct complaint procedure (Verfassungsbeschwerde), whether a common court has used its power to lodge a preliminary reference to the Court of Justice in accordance with the constitutional ban on extraordinary courts (Article 101 Basic Law).^{Footnote 73}

Despite the growing dissatisfaction in recent legal scholarship with regard to this separationist setting (Trennungsthese),^{Footnote 74} there are no signs yet of a change in approach in the case law of the Bundesverfassungsgericht, even though a decision delivered in March 2018 announced that ‘the Federal Constitutional Court reviews whether a national law is compatible with the Basic Law, including in cases where compatibility with the secondary law of the European Union is also in doubt’.^{Footnote 75}

This quick comparative overview would seem to confirm that even constitutional courts that have accepted the preliminary ruling mechanism are expressing concerns about the activism of the Court of Justice without, however, radically questioning or endangering the primacy of EU law. One of them, the Austrian Constitutional Court, has traditionally been very cooperative. These considerations lead us back to the very first lines of this contribution. Even in cases where national constitutional courts have threatened to raise the spectre of conflict (or have actually triggered conflicts) it is important to distinguish between courts that play fair, e.g. by exchanging arguments with the Court of Justice and trying to persuade the Luxembourg Court (looking for either direct or indirect forms of dialogue^{Footnote 76}) and constitutional courts that have acted in bad faith, e.g. by inappropriately playing the national identity card without consulting the Court of Justice beforehand.^{Footnote 77} It is, of course, difficult to discern a sharp dividing line. Use of the preliminary ruling mechanism could be seen as a sign of loyalty in the expression of dissent. This brings us back to prior case law, e.g. the Honeywell case,^{Footnote 78} where the possibility of declaring an EU act ultra vires was subordinated by the previous involvement of the Court of Justice via Article 267 TFEU.^{Footnote 79}

Thus, scholars^{Footnote 80} who have condemned the German Constitutional Court for devising the ultra vires doctrine or various identity doctrines fail when they conflate legitimate doubt ex Article 4.2 TEU with rebellion and when they underestimate the role that conflicts have traditionally had in the development of EU law.^{Footnote 81}

The ‘judicial atmosphere’ in Europe

Against this background, it can plainly be seen that the recent approach of the Italian Constitutional Court to the overlap of jurisdictional remedies in the field of fundamental rights protection is part of a wider constitutional Zeitgeist concerning the relationship between national fundamental rights and the rights enshrined in the Charter. The decision to subvert certain shared protocols for dealing with EU law in proceedings before the Italian Constitutional Court is closely related to the need for curtailing the domestic spillover effect of the Charter, its tendency to overflow, as critically highlighted by Justice Barbera.^{Footnote 82} As sketched out in the previous section, such a strategic intention is part of a wider problem concerning certain still unresolved key issues involving the role and effects of the Charter at the national level.

In this light, it is a commonplace that the entry into force of the Charter has somehow modified the traditional balance between national and European rights and, in terms of the federal question, has opened Pandora’s box.^{Footnote 83} Fransson is often invoked as a flagship decision of the Court of Justice in this field. Via Article 51(1), sectors of national legislation that had a weak link with EU law were incorporated into the regulatory framework of the Charter. In our opinion, the unifying potential of Fransson in the field of fundamental rights adjudication cannot be overestimated. In particular, the Court of Justice has made it clear that application of the Charter does not prevent a national court from ascertaining whether and to what extent a national standard of protection of fundamental rights can be applied in a case pending before it, provided the action of the national authorities is not entirely determined by EU rules.^{Footnote 84} In this way, the Court of Justice has set the scene for a potentially more balanced interaction with national authorities (and with national judges in particular), by giving them a certain amount of leeway when Member States enjoy a margin of discretion in the implementation of EU law. This opens up the possibility that the Charter could lose some of its pre-emptive power vis-à-vis national law since, in similar circumstances, the rights of the Charter and those enshrined in national constitutions are meant to interact, i.e. be applied jointly (or cumulatively) by the national judicial authorities.^{Footnote 85}

This is likely to be considered the strategic point that the Italian Constitutional Court sought to make in order to stake a claim to a role in a game that it had until recently refused to play. This comeback is, moreover, favoured by the emergence of Article 53 Charter as a possible counterpart of Article 51(1). The former clause, which seemed to have largely lost its purpose and content in Melloni,^{Footnote 86} is to a certain extent simultaneously rehabilitated in Fransson, i.e. as a conflict rule that governs the relationship between the national and the supranational regime of fundamental rights protection in those areas where the presence of discretionary powers of the States makes both levels of protection potentially applicable.^{Footnote 87} A similar stance was adopted by the Court of Justice in the M.A.S. (Taricco II) decision, where the referral to para. 29 of Fransson was made in order to enable a national court to assess whether and to what extent a national standard of fundamental rights’ protection in criminal matters could prevent it from enforcing EU rules offering a lesser degree of protection,^{Footnote 88} with particular regard to a field (repression of VAT frauds) in which States enjoy a margin of discretion in the implementation of supranational law.

Against this backdrop, the recent judicial trend to allow an overlap of Articles 51(1) and 53 replicates, although from an unprecedented perspective, the dialectic between a power rationale (emerging in the ‘incorporating’ potential of Article 51(1)) and a rights rationale (closely related to Article 53)^{Footnote 89} which shapes, in pluralistic terms, every authentic federal arrangement. Another basic question needs to be answered, however, when addressing the terms of the current constitutional conflict involving the nature and scope of the Charter in its relationship to national systems; this involves the reconciliation of unity and diversity in the field of rights’ protection. Undoubtedly, in the pre-Charter era, the meaning and scope of EU fundamental rights were strictly related to the unifying potential of their standing as ‘general principles’ of EU law whose enforcement was mainly delegated to national judges in a framework of a para-federal separation of functions between the internal and EU systems.

The substantive constitutional nature of a fully-fledged catalogue of rights like the Charter makes such an assumption untenable in the long run; the pervasive nature of its clauses demands a more balanced approach vis-à-vis the differing patterns of fundamental rights protection emerging at the national level. The logic underpinning the functioning of the Charter in its relationship to the legal orders of the Member States cannot rely exclusively on a strict separation of functions and ambits of application; this is still deemed to be a valid and viable approach – but only when an EU rule entirely predetermines the scope and content of the national implementing act (as in Melloni, whose approach remains unaffected in such situations).^{Footnote 90} Whenever national authorities enjoy a margin of discretion in the implementation of EU rules, a strict separation of functions and ambits of application progressively gives way to a cumulative approach by which the various catalogues of rights arrive on the scene simultaneously and a different logic seems to be emerging vis-à-vis the functioning of the Charter: its standing is not as an ultimate yardstick governing a pre-established set of powers and competences but as a standard of protection that in extreme circumstances can even be derogated via Article 53 whenever national rights afford a more intensive (or more extended) level of protection.^{Footnote 91} In our view, the solution recently advanced by the Corte costituzionale seeks to find such a flexible setting by challenging the Court of Justice on its own terrain. In so doing, this judicial response seems capable of promoting dialogue without taming the conflicts surrounding fundamental rights protections.^{Footnote 92}