The Italian legal system conforms to the generally recognised rules of international law

1. The Italian ConstitutionalThe Italian Constitutional
Court and the EU lawCourt and the EU law
Constitutional Law
A.Y. 2016/17
Marcelo Gomes Freire

2. Italian Constitution and
international law (I)
Art. 10
“The Italian legal system conforms to the generally recognised rules of international law.”
[…]
Art. 80
The Houses authorise by law the ratification of international treaties which are of a political
nature, or which call for arbitration or legal settlements, or which entail changes to the
national territory or financial burdens or changes to legislation.
Art. 11
“[…] Italy agrees, on conditions of equality with other States, to the limitations of
sovereignty that may be necessary to a world order ensuring peace and justice among the
Nations”

3. Italian Constitution and
international law (II)
Dualist approach
International and national legal system are conceived as
autonomous
«general recognised rules of int. law» => constitutional
rank
(1948-2001) International treaties (including Ecs treaties)
enjoy the rank of the legislative act of ratification

4. Italian Constitution and
international law (III)
Art. 117.1 Italian Constitution (amended in 2001):
“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”
«EU legislation» and «international obligations» as limit to the legislative
power

5. Examples from other Constitutions
Art. 24.1 German Basic Law (1949):
“The Federation may by a law transfer sovereign powers to international organisations
Art. 23.1 German Basic Law (amended in 1992):
“With a view to establishing a united Europe, the Federal Republic of Germany shall
participate in the development of the European Union that is committed to democratic,
social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that
guarantees a level of protection of basic rights essentially comparable to that afforded by
this Basic Law. […]. The establishment of the European Union, as well as changes in its
treaty foundations and comparable regulations that amend or supplement this Basic Law,
[…], shall be subject to paragraphs (2) and (3) of Article 79.”
Art. 8.1 Polish Constitution (1997):
“The Constitution shall be the supreme law of the Republic of Poland ”

6. Collision rules - criteria
Hierarchical - lex superior derogat inferiori
E.g.: the Constitution takes precedence over
parliamentary statutes => annulment
Chronological – lex posterior derogat priori
E.g.: more recent law prevails over (abrogates,
overrules) an earlier law of the same legal force =>
repeal (abrogation)
Competence – division of competences between
levels of government (State/Regions)

7. Which “EU sources”?
Difficulty to construct a linear overview of the
European Union’s system of legal sources
Primary sources, founding Treaties (diritto
convenzionale)
Secondary sources, sources that derive from treaties
(diritto derivato):
 non-binding acts (reccommendations and opinions)
 binding acts (regulations, directives, decisions)
 soft laws (f.e.: green papers, white papers, codes of
conduct , …)

8. ECJ approach: “primauté
communautaire”
1963: Van Gend en Loos, C. 26/62
“The Community constitutes a new legal order of international law for
the benefit of which the states have limited their sovereign rights,
albeit within limited fields and the subjects of which comprise not
only member states but also their nationals”
1964: Costa vs. ENEL, C 14/1964 (on the basis of the
unlimited duration of the Community, the autonomy of
Community power):
“By creating a Community [with] its own institutions, its own personality,
its own legal capacity, the member States have limited their
sovereign rights, albeit within limited fields, and have thus created a
body of law which binds both their nationals and themselves ”
It is impossible for the States to set up a subsequent unilateral measure
against a legal order which they have accepted on a reciprocal basis

9. 1978: Simmenthal, C 106/77
“Every national court must […] apply Community law in its entirety and
protect rights which the latter confers on individuals and must
accordingly set aside any provision of national law which may conflict
with it, whether prior or subsequent to the Community rule”
Member States have the duty to set aside national provisions incompatible
with Community law (also subsequent provisions, potentially even
constitutional ones)
1990-1991: Factortame litigation
“whether a national court which, in a case before it concerning Community
law, considers that the sole obstacle which precludes it from granting
interim relief is a rule of national law, must disapply that rule ”
National courts have the duty to secure the full effectiveness of Community
law, even by creating a national remedy where none had previously
existed

10. Italian Constitutional Court
A complex “European journey” composed of (at
least) 4 steps
Step 1: application of the chronological criteria
Decision 14/1964
Art. 11 Const. as the disposition allowing limitation to sovereignty, but it
does NOT derogate to the order among sources of law
conflicts between European and national law are, in the end, conflicts
between two domestic sources: the one at issue and that authorizing the
ratification of the European Treaty
European norms, once entered in the domestic legal system take the rank
of legislation (because is the Law that ratified the Ecs Treaties to permit
their application)
=> application of the most recent source

11. • Step 2: application of the hierarchical criteria
• Decisions 183/1973 and 232/1975
• Same theoretical framework, very different conclusion
• Art. 11 Const. as the disposition allowing limitations to
sovereignty
• By contrasting with the European norm, domestic norm is
actually infringing Art. 11 Cons
• => domestic norms contrasting with European ones have to be
submitted to the Constitutional Court in order to be annulled
(remember: the system of judicial review of legislation is
centralised!)
• => unconstitutionality (to be declared by Const.
Court) of the domestic norm infringing EU one

12. Step 3: disapplication as a consequence of the
criteria of the competent lawmaker
Decision 170/1984 (so called Granital decision)
The intervention of the constitutional Court would
affect the direct applicability of European law
National judges must appeal the ECJ first and apply
directly European law
BUT the Constitutional Court remains the guard of the
“supreme principles”

13. Step 4: the counter-limits doctrine
The disapplication of domestic law is not absolute or necessary in any case
The constitutional principle of art. 11 (admission of limitations to State’s
sovereignty) is subject to conditions listed in the same article:
With regard to the means: conditions of equality with other States
With regard to the ends: necessity in order to ensure peace and justice among
the Nations
Moreover, Art. 11 has to be balanced with other constitutional
values and principles: limitations to sovereignty have their
counter-limits when supreme principles of the Constitution are
at stake (decision no. 1146/1988) that cannot be modified even
through constitutional revision

14. Supremacy, primacy or precedence?
Art. I-6 Constitutional Treaty (rejected in 2005):
“The Constitution and law adopted by the institutions of the Union in exercising competences
conferred on it shall have primacy over the law of the Member States”
Lisbon Treaty, Declaration 17 concerning primacy:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of
the European Union, the Treaties and the law adopted by the Union on the basis of the
Treaties have primacy over the law of Member States, under the conditions laid down by
the said case law. ”
• National law are neither abrogated, nor annulled by EU law
• EU law “takes precedence over” national law
• National law has to be set aside (disapplication) => NOT repeal, NOT annulment