Pouring New Wine into Old Wineskins

The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To effectively address the challenges faced by national constitutional courts and the Court of Justice, it is essential to leverage existing procedural tools within domestic legal systems. While focusing primarily on recent trends in Italian constitutional case law, these insights may resonate across various jurisdictions in the EU. The suggested approach will ensure the direct effect of EU law, uphold its primacy, and provide robust protection of fundamental rights across both domestic and European legal frameworks. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies within the Union and its Member States may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU.

The first truism – the driving role of the apex courts

The first trivial statement is as follows: constitutional courts have played a driving role in developing and strengthening constitutional democracy in the European Union. The most striking example of this role is the impetus that the case-law of national constitutional courts has provided for the Union to have a Parliament directly elected by citizens and for the European legal system to have a Charter of Fundamental Rights (Solange and Frontini).

The second truism – EU democracy and its impact on national decision-making power

The second trivial statement is that these challenges, occasionally taken up with success by political bodies, have then generated new ones: on the front of democratic legitimacy, the electability of the European Parliament has understandably generated increasing pressure for that body to be given more incisive powers in the decision-making process. In turn, this has generated concern among the guardians of national democracy about the excessive erosion of the decision-making margins of national parliaments (Maastricht and Lissabon). On the front of fundamental rights protection, the provision of bill of rights in the European legal system has naturally generated increasing friction between judicial circuits. Which fundamental rights are to be protected? How much to protect one right at the expense of the other? And above all: who does what?

The third truism – the unfriendly change of tone vis-à-vis the Court of Justice

This inflationary process (Avbelj) in the circuits of constitutional rights protection has now become a topos of constitutional literature. In the face of these new challenges – this is my third and final trivial statement – it is known that several constitutional courts have changed their approach in dealing with the Court of Justice of the European Union. For at least a decade now, there has been an increasingly aggressive use of the notion of constitutional identity, especially by apex courts in Central and Eastern Europe. Even among the founding Member States, where the process of European integration traditionally enjoys broad political and public support (how uncritical that support is, is another matter), there has been a shift in constitutional jurisprudence, with an increasingly europarechtsunfreundlich approach. This change in approach emerges, in particular, in cases where there is competition between constitutional and European sources in the protection of the same constitutional rights.

Re-centralising the dialogue

For several years, there has been a tendency for constitutional courts to re-centralize the dialogue with the Court of Justice. The Italian Constitutional Court has made this shift in perspective explicit since 2017 (Tega). Through an obiter dictum, the Court stated that in cases of “double preliminary ruling” (when a law is suspected of being in conflict with both the Constitution and the Charter of Fundamental Rights of the European Union), it was no longer necessary to go to Luxembourg first, and then to the national Constitutional Court (see on this development and its successive fine-tuning Scarcello). This jurisprudence has since been confirmed and refined several times (especially excluding that the judge is obliged to go to Rome before Strasbourg, see orders no. 216 and 217 of 2021: the judge can but does not have to go to the Constitutional Court first), and it can now be said to be constant jurisprudence.

In the face of this trend, the reaction of the Court of Justice has not always been crystal clear. The Court has reiterated its classic jurisprudence on primacy and direct effect. However, it has also allowed some openness to these signals coming from national constitutional courts. These openings have materialized both in some retreats on the merits (one thinks of the CJEU Taricco case, the Italian Constitutional Court referral and CJEU M.A.S. M.B. second-thoughts), and in method, allowing that in cases where a characteristic feature of a specific constitutional tradition of a Member State is at stake, it is up to the apex courts of that State to interpret the content of the national constitutional specificity (RS, reiterated, very recently, in Energotehnica). It will then be up to the Court of Justice to draw the consequences in terms of the application of European Union law, while the fundamental principles that mark the traits of the constitutional identity of the European Union itself cannot give way to abusive and unconstitutional interpretations of national constitutional traditions.

Since 2009, in summary, it is inevitable that the juridification and judicialization of the Charter of Fundamental Rights of the European Union has led to a progressive increase in opportunities for confrontation, overlap, and friction with the jurisprudence of national constitutional courts. Different interpretations have been given of this trend. Some have considered it the unmasking of the legal and, before that, logical impossibility of constitutional pluralism (Kelemen and Pech); others have considered that conflicts are physiological in the polemical spirit of European constitutional law (Martinico). Often, it has been hoped, as a preventive remedy to possible conflictual degenerations, that a dialogical approach is necessary (Cartabia).

Using national constitutional leverages for EU law

If we want to go beyond mere abstract speculation and the world of good intentions, it is necessary to identify tools to make this hope-for-dialogue more efficient from the perspective of protecting fundamental rights and the founding principles of constitutionalism. A significant advancement necessary for ensuring the effective protection of fundamental rights within the EU is a more robust role for the Court of Justice in assessing the validity of EU secondary law.

Additionally, an important consideration is the integration of constitutional review mechanisms that evaluate the compatibility of national legislation with European Union law. Given that the majority of national constitutions include provisions mandating respect for EU law, European Union law can serve as a valid criterion for assessing the constitutional legitimacy of national laws in most Member States. Consequently, rulings by national constitutional courts could provide more effective guidance for judges and public administration in upholding compliance with European Union law.

The goat, the cabbage, and the wolf

However, it is certainly not possible to return to relations between domestic law and European Union law that date back to schemes of 50 years ago, when ensuring the primacy of European Union law required navigating the rulings of constitutional courts. To reconcile the goat, the cabbage, and the wolf, it is essential to seek unconventional solutions within the framework of existing law. To this end, the procedural tools that already exist in the Member States could be adapted to ensure both the principle of the primacy of law and direct effect.

In Italy, a promising procedural tool has been introduced as a civil remedy to address specific cases of discrimination. Concerning this remedy, the recent case may be instructive (see judgment n. 15 of 2024, English official translation available here). The cases pertained the requirements for certifying the non-ownership of other residential property (this was a prerequisite in order to access a first home owner or tenant grant). According to the challenged regulation, non-EU citizens had to submit documentation establishing that no member of the family unit owns any residential housing in their country of origin or in the country of previous residence following procedures that differ from those applicable to Italian and EU citizens.

In the specific case addressed through this anti-discriminatory civil action, the common judge initially chose to disapply the law and regulations that guided the administration in a manner incompatible with Union law. This approach ensured the direct effect of the European norm, granting the individual applicant what they were entitled to under EU law. However, the flexibility of this procedural tool allowed the judge to extend their influence beyond the individual case.

Under this unique anti-discriminatory action, the judge can instruct the public administration to develop a plan to eliminate the established discrimination. Given that this discrimination stemmed from the application of the law, the judge did not simply order the administration to disapply the law – which they could have done in strict legal terms – but instead referred the matter to the Constitutional Court, requesting to declare it unconstitutional. This request was promptly granted, effectively removing the source of discriminatory effects from domestic legislation and permanently resolving the conflict with Union law.

Thus, the versatility of the “two-speed” procedural tool, exemplified by the anti-discriminatory action above, enabled the protection of both the interests associated with direct effect and those linked to the primacy of Union law.

New challenges, new tools

The legal system does not always have such tools. Where they do not exist, it would be appropriate to introduce them. Just as it would be appropriate to introduce even more articulated tools to facilitate a formal judicial interaction between the Court of Justice and national constitutional courts whenever useful elements for decisions can be drawn from that confrontation. This could take the form of a “summons” issued by the CJEU to national constitutional courts, an amicus curiae system allowing these courts to file briefs to the CJEU, or even a more developed judicial framework featuring a hybrid judiciary composed of members from both the Court of Justice and national constitutional courts. Such a system would enable the referral of issues of particular significance for the development of the European constitutional order. These are structural innovations that have been discussed by the legal scholarship (e.g. Weiler and Haltern and Lindseth) for some time now, and they seem even more necessary today than when they were first proposed.

It is obvious to everyone that both the Court of Justice and national constitutional courts are facing entirely new challenges, partly generated by their own actions. Accordingly, new challenges sometimes require equipping ourselves with new tools.