Presentation minutes

of 15
 INTRODUCTION TO ITALIAN LAW

GOALS OF THE COURSE

AND Viadrina
Universit

INTRODUCTIVE PART
• DR. TANIA BAZZANI
• VIADRINA UNIVERSITY, ACADEMIC YEAR 2022/2023
 GOALS AND
HOW TO ACHIEVE THEM

➢ WHICH CONTENTS ARE WE GOING TO DISCUSS

TOGETHER?
➢ ITALIAN LAW (EU AND COMPARATIVE PERSPECTIVE)
Viadrina
Universit

➢ HOW TO USE ENGLISH WHEN APPROACHING LEGAL

TOPICS?
➢ IN PARTICULAR: MAKING THE COMMUNICATION
WORKING!
➢ VERBAL COMMUNICATION
➢ WRITTEN COMMUNICATION
 HOW TO WORK ON IT?
➢ YOU WILL BE PROVIDED WITH SLIDES AND
MATERIALS TO READ
➢ I WILL PROPOSE TO DO SIMPLE TASKS, FOR
EXAMPLE:
➢ SUM UP IN ONE OR TWO SENTENCES THE MAIN Viadrina
Universit

IDEA
➢ WHICH IS YOUR OPINION ABOUT THE
ARTICLE/PIECE OF LEGISLATION/ETC.?
➢ HOW IS WORKING IN YOUR COUNTRY?
COMPARISON
➢ DURING THE CLASS, YOU WILL WORK TOGETHER:
 OUR CALENDAR

Friday, 9.00 (9.30)-11.00 - GD 201 - Introduction

to Italian Law (1 SWS - SPB 4 )

21.10
4.11 Viadrina
Universit

18.11
2.12
16.12
13.1
27.1
 OUR CALENDAR
• HISTORICAL INTRODUCTION
• SOURCES OF LAW
• DIVISION OF POWERS / LEVEL OF COURTS

• CONSTITUTIONAL LAW WITHIN AN EU PERSPECTIVE Viadrina

Universit

• PENDING ISSUES AND ITALIAN LAW

• WE WILL NOT FOCUS ON CRIMINAL LAW, HOWEVER IT IS

IMPORTANT TO HIGHLIGHT…
 Viadrina
Universit

Do you know them?

 mnation US
connection maxi
-

-
processo

I d)

Viadrina

~
Universit

M
Paolo Borsellino and Giovanni Falcone (Sicilia) were two judges and prosecuting
magistrates, who found out how the mafia organised itself and its connections in the US.
They promoted the firsts overseas investigations in Italy and organised the biggest trial that
was ever organised in that time (Maxi Trial in 1986–1987). They were assassinated by the
 -

Viadrina
Universit

Nicola Gratteri (Calabria)

Several cases against ‘Ndrangheta
2019: 334 arrested people and 416 suspects
WHAT DO YOU EXPECT
FROM THIS COURSE?
Viadrina
Universit
 INTRODUCTION TO Viadrina
Universit

ITALIAN LAW
• DR. TANIA BAZZANI
• VIADRINA UNIVERSITY, ACADEMIC YEAR 2022/2023
 ITALIAN LAW
• CIVIL LAW (DIFFERENT FROM COMMON LAW – STARE DECISIS)
• RESULT OF ITS HISTORICAL DEVELOPMENT
• ORIGIN: ROMAN LAW
• CITY-STATES (LOCAL STATUTE AND CITY AND MUNICIPAL LAW )
• THE CIVIL LAW: INFLUENCE BY ROMAN LAW, CANON AND
GERMANIC AND FEUDAL LAW AS INTERPRETED AND APPLIED IN Viadrina
Universit
THE MIDDLE AGES AND RENAISSANCE
• PRINCIPLE OF CODIFICATION: EASTERN EMPEROR JUSTINIAN
IN THE 6TH CENTURY. JUSTINIAN’S LAW, OR MEDIEVAL ROMAN
LAW, EXPERIENCED ITS REBIRTH IN NORTHERN ITALY DURING THE
12TH AND 13TH CENTURIES (CORPUS IURIS CIVILIS AND CORPUS
IURIS CANONICI)
 ITALIAN LAW
• 2 OPPOSED TENDENCIES: FRAGMENTATION/UN-
SYSTEMATICITY V NEED OF UNIFORMITY
• THE INFLUENCE OF THE FRENCH REVOLUTION 1789:
• IDEAS
• CODIFICATION
• CODE NAPOLEON OF 1804, THE CODE OF CIVIL PROCEDURE OF Viadrina
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1807, THE COMMERCIAL CODE AND THE CODE OF CRIMINAL
PROCEDURE, BOTH OF 1808, AND THE CRIMINAL CODE OF 1810.
ITALY RECEIVED BOTH THE IDEOLOGY OF THE REVOLUTION
AND THE FRENCH CODES
 ITALIAN LAW
• THE FIRST NON-NAPOLEONIC ITALIAN CODE WAS
PROMULGATED IN LOMBARDY IN 1871(ON THE BASE OF THE
AUSTRIAN CIVIL CODE)
• THE CODIFICATION MOVEMENT WAS INFLUENCED BY THE
SERIES OF CODES PROMULGATED IN SARDINIA BETWEEN 1837
AND 1854 Viadrina
Universit

• BY 1860, WITH THE POLITICAL CONSOLIDATION OF ITALY UNDER

THE HOUSE OF SAVOY. HOWEVER, EACH PROVINCE OF THE NEW
KINGDOM RETAINED AND ENFORCED ITS OWN SET OF LAWS.
• 1861: REIGN OF ITALY
• THE NEW ITALIAN CIVIL CODE WAS PROMULGATED IN 1865
 ITALIAN LAW
• CODIFICATION UNDER FASCISM
• CIVIL CODE: A CODIFICATION OF PRIVATE (NON-GOVERNMENTAL)
ASPECTS OF LABOR LAW AS WELL AS AN EXTENSIVE
CODIFICATION OF THE RIGHTS OF CITIZENS AND THEIR
PROTECTION. IMPORTANT TECHNICAL ASPECTS.
• AFTER FASCISM: THE CODES SURVIVES IN THEIR MAIN Viadrina
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STRUCTURES, ELIMINATING THE FASCIST ASPECTS

• IN FORCE FROM THE 1ST JANUARY 1948: ITALIAN CONSTITUTION
 SOURCES OF LAW
like German one , anti-fascist

·Lifloce
• CONSTITUTION: FUNDAMENTAL CHARTER OF THE ITALIAN
1 Representing
SYSTEM 2 Chambers
• ORDINARY LAW rejous
the

•
government
DECREE LAW, LEGISLATIVE DECREE
I d I
La 60 days powerin ChamberViadrina
parliament
Universit
• REGIONAL LAW unless parliament ,aw
it
to
<
21 regions convers
• REGULATION
• CUSTOMARY LAW (USI E CONSUETUDINI)
Gewohnkeitsrecht

• IN LABOUR LAW: COLLECTIVE AGREEMENTS (PRIVATE LAW)*

WHICH ARE THE SOURCES OF LAW OF THE
GERMAN LEGAL SYSTEM (OR OF YOUR
SYSTEM, IF DIFFERENT FROM THE GERMAN
ONE)?
ITALY GERMANY
MAKE A COMPARISON
Constitution: fundamental charter
of the Italian system
Viadrina
Ordinary law Universit

Decree law, legislative decree

Regional law
Regulation
Customary law (usi e
consuetudini)
In labour law: collective
agreements (private law)*
 WHAT IS ABOUT
ITALIAN
CONSTITUTIONAL LAW?
CONSTITUTION
CONSTITUTIONAL LAW
Viadrina
Universit

CONSTITUTIONAL COURT’S DECISIONS

HOW IS THE RELATIONSHIP
BETWEEN THE NATIONAL
AND THE EU LEGAL
SYSTEMS? Viadrina
Universit
 SOURCES OF LAW
The principle of the primacy
(also referred to as ‘precedence’)
EU of EU law is based on the idea
that where a conflict arises
• CONSTITUTION LAW? between an aspect of EU law
and an aspect of law in an EU
country (national law), EU law
will prevail. If this were not to
• ORDINARY LAW be the case, EU countries could
simply allow their national laws
• DECREE LAW, LEGISLATIVE DECREE to take precedence over primary
↳ or secondary EU legislation, and
Ermachtigung in DE
• REGIONAL LAW the pursuit of EU policies would
become unworkable.
• REGULATION The primacy of EU law only
applies where EU countries have
• CUSTOMARY LAW (USI E CONSUETUDINI) ceded sovereignty to the EU

• IN LABOUR LAW: COLLECTIVE AGREEMENTS (PRIVATE LAW)*

ITALIAN CONSTITUTION:

MAIN FEATURES
Viadrina
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 ITALIAN CONSTITUTION
• BELONG TO THE CONSTITUTIONS BORN FROM THE RESISTENCE, TO
REJECT TOTALITARIAN EXPERIENCEES (I.E. THE FRENCH AND
GERMAN ONES; PORTUGUESE, SPANISH AND GREEK
CONSTITUTIONS IN THE 70IES)
• STATO DI DIRITTO=RECHTSSTAAT:
1. CONSTITUTIONAL PROVISIONS ON ACCESS TO COURTS AND Viadrina
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JUDICIAL REVIEW; AND
2. THE LEGALITY PRINCIPLE, WHICH SUBORDINATES
ADMINISTRATIVE ACTS TO PARLIAMENTARY STATUTES (THE
INTRODUCTION OF CRIMINAL OFFENCES AND IMPOSITION OF
OBLIGATIONS AND TAXATION IS PERMISSIBLE ONLY ON THE BASIS
OF A PARLIAMENTARY STATUTE)
 OPENNESS
• ‘INTERNATIONALIZATION OF MODERN CONSTITUTIONS’
• PRODUCT OF A POLITICAL COMPROMISE AMONG VERY DIFFERENT
DEMOCRATIC FORCES THAT HAD, AS THEIR ONLY COMMON POINT,
THE REJECTION OF THE TOTALITARIAN EXPERIENCES
• STRONG PROGRAMMATIC CHARACTER
Viadrina
• SUCH AS OTHER CONSTITUTIONS, IT CLAIMED THE NEED FOR NEWUniversit
SOCIETAL MODELS
• VERY RICH IN DECLARATIONS OF PRINCIPLE, REFLECTING A WISH TO
PRODUCE A BREAK WITH THE PAST.
• VALUES AND PREMISES OF THE SOCIAL LIFE WITHIN AND OUTSIDE
NATIONAL BOUNDARIES (EXTERNAL OPENNESS)
 POLITICAL COMPROMISE
• ‘THEITALIAN CONSTITUTION IS THE RESULT OF A
POLITICAL COMPROMISE (‘COMPROMESSO’) AMONG
THE THREE MOST IMPORTANT FORCES THAT ACTED
AS THE ENGINE OF THE CONSTITUENT PHASE: THE
LIBERAL, THE CHRISTIAN DEMOCRATIC AND THE
SOCIALIST-COMMUNIST (LEFT-WING) TRADITIONS. Viadrina
Universit

‘GLUE’ OF THIS COMPROMISE WAS THEIR SHARED

ANTI-FASCISM.

• CLN (NATIONAL LIBERATION COMMITTEE): FREE TO WRITE A NEW

CONSTITUTION THAT WAS AN ‘AUTOGENOUS
PRODUCT’ OF THE ASSEMBLY
 PACIFIST IDEA

• THE ITALIAN CONSTITUTION CAME INTO FORCE ON 1

JANUARY 1948. ALL OF THE MAIN MEMBERS OF THE
CONSTITUENT ASSEMBLY, ALTHOUGH SO DIFFERENT
IN THEIR CULTURAL AND POLITICAL BACKGROUNDS,
WERE UNITED AROUND THE MEMORY OF THE PAST.
Viadrina
Universit

• AS WE WILL SEE, ALL OF THE CONSTITUTIONAL

PROVISIONS THAT GOVERN THE FOREIGN RELATIONS
OF THE ITALIAN REPUBLIC RESULT FROM THIS IDEA,
STARTING WITH ART. 11, WHICH IS DEVOTED TO THE
PACIFIST PRINCIPLE.
 ART. 11 C.

ITALY REJECTS WAR AS AN INSTRUMENT OF

AGGRESSION AGAINST THE FREEDOM OF OTHER
PEOPLES AND AS A MEANS FOR THE SETTLEMENT
OF INTERNATIONAL DISPUTES. ITALY SHALL AGREE,
ON CONDITIONS OF EQUALITY WITH OTHER STATES, Viadrina
Universit

TO SUCH LIMITATIONS OF SOVEREIGNTY AS MAY BE

NECESSARY TO ENSURE PEACE AND JUSTICE
AMONG NATIONS. ITALY SHALL PROMOTE AND
ENCOURAGE INTERNATIONAL ORGANIZATIONS
PURSUING SUCH GOALS.
DO YOU HAVE A SIMILAR ARTICLE IN YOUR
SYSTEM?
PACIFIST IDEA + INTERNATIONAL
RELATIONSHIPS
Viadrina
Universit
 STRUCTURE CONST.

• THE ITALIAN CONSTITUTION CAME INTO

FORCE ON 1 JANUARY 1948.
• 139 ARTICLES:
• THE FIRST 12 ARTICLES: FUNDAMENTAL Viadrina
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PRINCIPLES
• PART I: ‘RIGHTS AND DUTIES OF CITIZENS’
• PART II: ‘ORGANISATION OF REPUBLIC’
 STRUCTURE
PART I (ARTS. 13–54) CONTAINS THE FOLLOWING
SUBSECTIONS:
‘CIVIL RELATIONS’; ‘ETHICAL AND SOCIAL RIGHTS AND DUTIES’;
‘ECONOMIC RIGHTS AND DUTIES’, AND ‘POLITICAL RIGHTS AND
DUTIES’.

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PART II IS DIVIDED INTO SIX ‘TITLES’:
THE HOUSES AND THE LEGISLATIVE PROCESS; THE PRESIDENT OF
THE REPUBLIC; THE GOVERNMENT; THE ‘JUDICIAL BRANCH’,
COVERING BOTH THE ‘ORGANIZATION OF THE JUDICIARY’ AND
THE ‘RULES ON JURISDICTION’; AND ‘REGIONS, PROVINCES,
MUNICIPALITIES’ (AMENDED IN 2001) + ‘CONSTITUTIONAL
GUARANTEES’, WHICH CONCERNS THE CONSTITUTIONAL COURT
AND ‘AMENDMENTS TO THE CONSTITUTION AND

STRUCTURE
THE FORMULA ‘REPUBLICAN FORM’ INCLUDED IN
ART. 139 (DEVOTED, AS WE WILL SEE, TO THE
IMPOSSIBILITY TO AMEND THE ‘REPUBLICAN FORM’)
CORRESPONDS TO THE SUPREME PRINCIPLES

Viadrina
THE LOGIC IS THE FOLLOWING: ANY CHANGE Universit

CONCERNING THESE PRINCIPLES WOULD RESULT IN A

REVOLUTION IN THE TECHNICAL SENSE OF THE WORD.
THESE FUNDAMENTAL PRINCIPLES THUS REPRESENT
THE ‘CENTRE OF GRAVITY’ OF THE ITALIAN
CONSTITUTION.
 A RIGID CONSTITUTION
• THE CONSTITUTIONAL AMENDMENT PROCEDURE IS
GOVERNED BY ART. 138
• LAWS AMENDING THE CONSTITUTION AND OTHER
CONSTITUTIONAL LAWS SHALL BE ADOPTED BY EACH HOUSE
AFTER TWO SUCCESSIVE DEBATES AT INTERVALS OF NOT LESS
THAN THREE MONTHS, AND SHALL BE APPROVED BY AN
Viadrina
ABSOLUTE MAJORITY OF THE MEMBERS OF EACH HOUSE IN Universit

THE SECOND VOTING. POSSIBLE SUBMIT SUCH LAW TO A

POPULAR REFERENDUM
• NO OTHER OPTIONS ARE AVAILABLE AND THUS THIS WAS THE
PROCEDURE FOLLOWED TO CHANGE, INTER ALIA, ART. 117.
ITALIAN CONSTITUTIONAL Viadrina
Universit

LAW
• DR. TANIA BAZZANI
• VIADRINA UNIVERSITY, ACADEMIC YEAR 2022/2023
 ITALIAN
CONSTITUTION
AND EU LAW
Viadrina
Universit
 ART. 11 C.

ITALY REJECTS WAR AS AN INSTRUMENT OF

AGGRESSION AGAINST THE FREEDOM OF OTHER
PEOPLES AND AS A MEANS FOR THE SETTLEMENT
OF INTERNATIONAL DISPUTES. ITALY SHALL AGREE,
ON CONDITIONS OF EQUALITY WITH OTHER STATES, Viadrina
Universit
TO SUCH LIMITATIONS OF SOVEREIGNTY AS MAY BE
NECESSARY TO ENSURE PEACE AND JUSTICE
AMONG NATIONS. ITALY SHALL PROMOTE AND
ENCOURAGE INTERNATIONAL ORGANIZATIONS
PURSUING SUCH GOALS.
 CONSTITUTION AND EU

•HOW IS THE RELATIONSHIP BETWEEN

EU AND CONSTITUTION IN YOUR
COUNTRY?
Viadrina
Universit

•BETWEEN EU AND YOUR COUNTRY‘S

SYSTEM?
• PRINCIPLE OF THE PRIMACY
• CONSTITUTION: FUNDAMENTAL
 CONSTITUTION AND EU court
constitutional
Italian
• AT FIRST AND FOR A LONG TIME, THE ITCC USED ART. 11 IN
ORDER TO COVER THE NECESSARY LIMITATIONS OF
SOVEREIGNTY REQUIRED BY THE EUROPEAN INTEGRATION
PROCESS. THIS WAS THE CASE UNTIL 2001 WHEN THE FIRST
IMPORTANT AMENDMENT CONCERNING EUROPEAN
INTEGRATION WAS INTRODUCED WITH CODIFICATION OF THE Viadrina
Universit
DUTY TO EXERCISE LEGISLATIVE POWER IN COMPLIANCE
WITH COMMUNITY LAW.
↳ Principle of Primacy

• OTHER AMENDMENTS WERE INTRODUCED IN 2012 TO

CONSTITUTIONALISE THE SO-CALLED ‘GOLDEN RULE’.
 CONSTITUTION -
MULTILEVEL
THE NEW ART. 117(1) CURRENTLY READS,
‘LEGISLATIVE POWERS SHALL BE VESTED IN THE STATE AND THE
REGIONS IN COMPLIANCE WITH THE CONSTITUTION AND WITH THE
CONSTRAINTS DERIVING FROM COMMUNITY AND INTERNATIONAL
OBLIGATIONS’.
A MORE RECENT AMENDMENT WAS INTRODUCED TO CHANGE THE TEXT Viadrina
Universit
OF ART. 81 OF THE CONSTITUTION TO INTRODUCE AN EXPRESS MENTION
OF THE ‘BALANCED BUDGET’ PRINCIPLE THROUGH CONSTITUTIONAL
LAW NO. 1/2012. ARTICLES 97, 117 AND, ABOVE ALL, THE FIRST
PARAGRAPH OF ART. 119 WERE ALSO AMENDED -

Verordnung
-
regulation
-

regolament
directive
directive
-

Richtlinie -

decisioni
Beschluss decision
-

-recommendation - raccommendazioni
Empfehlung
 Opinion
Stellunguahve
-
-
paveri

CONSTITUTION -
MULTILEVEL
• ART. 117(1) HAS BROUGHT INTERESTING INNOVATIONS IN THE
ITCC’S CASE LAW.

AFTER THE REFORM, THE INTERPRETATION OF THIS ARTICLE

CREATED A DIVISION AMONG SCHOLARS:
• ACCORDING TO SOME, ART. 117(1) GRANTED A SORT OF A Viadrina

POSTERIORI ASSENT TO EUROPEAN PRIMACY AS HAD BEEN Universit

DEVELOPED BY THE COURT OF THE JUSTICE (ECJ) AND

ACCEPTED ACROSS THE EUROPEAN UNION.
• OTHER SCHOLARS, EMPHASISED THE IMPORTANCE OF THE
CONSTITUTIONAL STATUS GIVEN TO PRIMACY OF EU LAW, AND
ASSERTED THAT ART. 117 PAVED THE WAY FOR ACCEPTANCE OF
THE ITALIAN MONIST THESIS.
 letzte Instanz
Corto di Cassazione

CONSTITUTION - EUCortod'Apello
I

I .
Instanz

FLEXIBILIZATION OF SUPREMACIES I Instant

.
Tribunale

• DEVELOPMENT OF THE ITCC’S CASE LAW REGARDING EU LAW:

PROGRESSIVE DEPARTURE FROM THE PURE DUALIST VIEW FIRST
ADOPTED BY THE COURT. FIRST PHASE: TWO ‘AUTONOMOUS AND
SEPARATED, ALTHOUGH COORDINATED’ LEGAL SYSTEMS.
• THE ECJ, IN OFTEN ADOPTING A BENIGN AND TOLERANT ATTITUDE,
HAS DEMONSTRATED THAT IT APPRECIATES THE EFFORTS MADE BY Viadrina
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THE NATIONAL COURTS. SOME SCHOLARS HAVE LABELLED THIS
PARTIAL CONVERGENCE WITH THE TERM (LIMITED).
• ==> DESPITE THIS RAPPROCHEMENT, THE EXPANSION OF THE
EUROPEAN COMMUNITIES’ COMPETENCES HAS OFTEN GIVEN RISE TO
SOME DEGREE OF TENSION BETWEEN THE DOMESTIC JUDICIARY AND
THE EC COURTS, EACH TIME THAT THE ALLOCATION OF COMPETENCE
ON BORDERLINE ISSUES HAS BEEN AT STAKE.
 DOMESTIC – EU ORDER
Dualistic Monist

European
order

Domesti European
c order Viadrina
order Universit

Domesti
c
order
 MULTILEVEL COURT
SYSTEMS
DOMESTIC - EU
European
order

Domesti European
c order
order Viadrina
Universit

Domesti
c
order

ICC ECJ ECJ Italian Courts

 ECJ - ITCC
• FIRST OF ALL, THE ECJ HAS PROGRESSIVELY OBTAINED THE
TRUST OF ORDINARY NATIONAL JUDGES, WHO ALSO PLAY A
FUNDAMENTAL ROLE IN THE CONSTITUTIONAL REVIEW
PROCEEDINGS AT DOMESTIC LEVEL. SUCH INFLUENCE HAS
RESULTED IN THE DETERIORATION OF THE RELATIONSHIP
BETWEEN ORDINARY JUDGES AND THE ITCC: WHEN ORDINARY
JUDGES WANT TO OBTAIN AN EXPLANATION REGARDING THE Viadrina
Universit
RELATIONSHIP BETWEEN EC LAW AND THE NATIONAL
CONSTITUTION, THEY DO NOT REFER TO THE ITCC, BUT RATHER
TO THE ECJ.
• THIS IS A CONSEQUENCE OF THE SELF-EXILED STATUS OF THE
ITCC, WHICH HAS NORMALLY PREFERRED NOT TO ADDRESS
QUESTIONS CONCERNING THE RELATIONSHIP BETWEEN LEGAL
ORDERS.
 I- Chronological Criterion
ECJ - ITCC II- Interpretation of Art. 11 C. = but
goes behind its literal meaning

• IN CASE NO. 14/1964 THE ITCC INTERPRETED THE RELATIONSHIP BETWEEN

NATIONAL AND EC ACTS IN LIGHT OF THE CHRONOLOGICAL CRITERION LEX
POSTERIOR DEROGAT PRIORI (SINCE THE ENABLING DOMESTIC ACT
RATIFYING THE TREATIES WAS AN ORDINARY LEGISLATIVE ACT);

• LATER ON, IN CASE NO. 183/ 1973 THE ITCC CHANGED ITS POSITION AND
CLAIMED THAT THE CONSTITUTIONAL BASIS FOR EC LAW PRIMACY CAN BE
FOUND IN ART. 11 C. THIS PROVISION WAS ORIGINALLY CONCEIVED TO
JUSTIFY ITALY’S MEMBERSHIP IN THE UNITED NATIONS, RATHER THAN IN
Viadrina
THE EU. Universit

• EU MEMBERSHIP, IN FACT, IMPOSES LIMITATIONS OF SOVEREIGNTY FOR

GOALS THAT CLEARLY GO BEYOND ‘PEACE AND JUSTICE BETWEEN NATIONS’.
THUS THE ITCC WAS FORCED TO ‘MANIPULATE’ THE ORIGINAL MEANING OF
ART. 11 IN ORDER TO ALLOW FOR THESE LIMITATIONS. THE ITCC HAD KEPT
THE TASK OF MONITORING RESPECT FOR PRIMACY OF EC LAW (AS A
CONTROL OF INDIRECT VIOLATION OF ART. 11 OCCURRING WHEN NATIONAL
PROVISIONS ARE FOUND TO BE IN CONFLICT WITH EC LAW), BUT THE
CONSISTENCY OF EC LAW WITH THE ITALIAN CONSTITUTION COULD NOT BE
REVIEWED BY THE ITCC, GIVEN THAT IT CAN RULE ON THE VALIDITY OF

HOW DO YOU THINK HAS

BEEN SEEN THE
RELATIONSHIP BETWEEN Viadrina

NATIONAL Universit

CONSTITUTIONAL COURTS
AND ECJ (NOW CJEU) IN
THE OTHER MEMBER
STATES?
 RELATIONSHIP BETWEEN COURTS:
NATIONAL AND EUROPEAN LEVEL
SOLANGE I - 1970
INTERNATIONALE HANDELSGESELLSCHAFT VON EINFUHR-
UND VORRATSSTELLE FÜR GETREIDE UND FUTTERMITTEL,
DECISION OF 29 MAY 1974, BVERFGE 37, 271 [1974] CMLR 540.

CASE: A EU LAW INTRODUCED AN IMPORT LICENSING Viadrina

SYSTEM ASKING FOR A DEPOSIT, WHICH WAS Universit

CONSIDERED EXCESSIVE AND THEREFORE INFRINGING

THE GERMAN CONSTITUTION BY THE CLAIMANT. THE ECJ
HELD THAT THE SYSTEM WAS VALID. BUT THE GERMAN
CONSTITUTIONAL COURT...
• HTTPS://EUR-LEX.EUROPA.EU/SUMMARY/GLOSSARY/PRIMACY_OF_EU_LAW.HTML
 RELATIONSHIP BETWEEN COURTS:
NATIONAL AND EUROPEAN LEVEL

SOLANGE I – 1970 (“AS LONG AS”)

GERMAN CONSTITUTIONAL LAW.

FUNDAMENTAL RIGHTS A INTEGRAL PART OF THE GENERAL
PRINCIPLE OF THE EC.... BUT... Viadrina
Universit

THE GUARANTEE OF FUNDAMENTAL RIGHTS IN THE

CONSTITUTION PREVAILS AS LONG AS THE COMPETENT ORGANS
OF THE COMMUNITY...
REJECTION OF THE PRIMACY OF COMMUNITY LAW.
 RELATIONSHIP BETWEEN COURTS:
NATIONAL AND EUROPEAN LEVEL

SOLANGE II – 1986

GERMAN CONSTITUTIONAL LAW

“AS LONG AS” THE EUROPEAN COMMUNITIES AND

IN PARTICULAR THE CASE OF THE EUROPEAN Viadrina
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COURT GENERALLY ENSURE AN EFFECTIVE

PROTECTION OF FUNDAMENTAL RIGHTS: ABLE TO
PROVIDE ADEQUATE PROTECTION.
 THEREFORE, ALONG THE
YEARS…
TENSIONS EUROPEAN / NATIONAL LEVEL
• CONSTITUTIONAL COURTS NORMALLY HAVE JURISDICTION OVER
NATIONAL LEGISLATION (INCLUDING THE LEGAL SOURCE OF
EXECUTION OF TREATIES) BUT NOT OVER EC PROVISIONS: THE
LATTER ARE BEYOND THEIR JURISDICTION BECAUSE, AS THEY
ARGUE, THEY BELONG TO ANOTHER LEGAL ORDER. Viadrina
Universit

• THIS IS WHY THE CONSTITUTIONAL COURTS HAVE TRADITIONALLY

REFUSED THE POSSIBILITY TO STRIKE DOWN EU LAW PROVISIONS,
SINCE THE ACCEPTANCE OF THIS OPTION WOULD IMPLY
ADHESION TO THE MONIST THEORY OF THE ECJ.
 ITALIAN SOLUTION:
“CONTROLIMITI” THEORY
TENSIONS EUROPEAN / NATIONAL LEVEL: HOW TO PRESERVE
THE CONSTITUTIONAL CORE OF THE MEMBER STATES? THE
ITALIAN SOLUTION…

• IT IS BY A LEGAL FICTION THAT IT IS POSSIBLE TO DEFEND THE

HARD CORE OF CONSTITUTIONAL LEGAL ORDERS BY PRESERVING Viadrina
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THE FORMAL AUTONOMY OF THE NATIONAL AND SUPRANATIONAL
ORDERS AND THE JURISDICTION OF THE ECJ. THE IDENTIFICATION
OF THESE BARRIERS TO EUROPEAN INTEGRATION REPRESENTS
THE ESSENCE OF THE COUNTER-LIMITS DOCTRINE (‘DOTTRINA DEI
CONTROLIMITI’), DEVISED BY THE ITCC IN THE FRONTINI
JUDGMENT - (BUT
Constitutional
SEE ALSO Courts:
THELegal Fiction (depending
GRANITAL JUDGMENT).on the system)
- Preserve the dualistic view
- Barriers to European Integration
ECJ – ITCC: COUNTER-LIMITS DOCTRINE

• ITALIAN AND GERMAN CONSTITUTIONAL COURTS, SUCH AS OF

OTHER MEMBER STATES, HAVE CLAIMED ALONG THE YEARS TO
MAINTAIN THEIR OWN ROLE (THE ROLE OF THE GUARDIANS OF
THE NATIONAL CONSTITUTIONAL IDENTITY) WITHOUT
EXCEPTIONS. THEY HAVE DENIED THE ACCEPTANCE OF
Viadrina
DANGEROUS MONIST VISIONS IN ORDER TO PRESERVE THE Universit

CONSTITUTIONAL IDENTITY OF THEIR LEGAL ORDERS.

 “CONTROLIMITI” THEORY:
EXCEPTIONAL CONTROL

• ACCORDING TO CARTABIA, THE COUNTER-LIMITS TEST WAS

CONCEIVED OF AS A WAY TO CARRY OUT AN EXCEPTIONAL
CONTROL OF RESPECT OF THE CONDITIONS FOR
CONSTITUTIONALITY OF THE ITALIAN ACCESSION TO THE EU.
FOLLOWING THIS RECONSTRUCTION, THE COUNTER-LIMITS
Viadrina
ORIGINALLY WORKED AS CONDITIONS FOR EVALUATING THE Universit

LEGITIMACY OF THE LIMITATIONS OF SOVEREIGNTY ACCEPTED

BY THE ITALIAN ACCESSION TO THE EUROPEAN VENTURE.
Exceptional control:
Legitimacy of the limitation of sovereignty accepted
by Italy in order to access the European Economic
Community
 “CONTROLIMITI” THEORY:
SIMPLE CONTROL
• LATER ON (WITH THE FRAGD JUDGMENT), THE NATURE OF THE COUNTER-
LIMITS DOCTRINE CHANGED AND WAS TRANSFORMED FROM AN
EXCEPTIONAL CONTROL INTO A ‘SIMPLE’ CONTROL OF THE
COMPATIBILITY OF EU LAW WITH THE CONSTITUTION WHICH COULD NOT
THREATEN ITALY’S MEMBERSHIP OF THE EU.
• BECAUSE OF THE ‘TRANSFORMATION’ OF THIS DOCTRINE, THE COUNTER-
Viadrina
LIMITS HAVE WORKED AS A LIMITATION TO EUROPEAN PRIMACY: THAT ISUniversit
WHY, ACCORDING TO THE SAME SCHOLARSHIP, STARTING FROM THE
FRAGD JUDGMENT, THE ITCC HAS IMPLICITLY ADMITTED THAT A
POSSIBLE CONFLICT WITH THE CONSTITUTION WOULD NOT CAUSE THE
INVALIDITY OF THE STATUTE ADOPTED FOR EXECUTION OF THE EC
TREATY, BUT JUST THE NON-APPLICABILITY OF THE EC RULE (SEE
Simple control:
CARTABIA AND WEILER 2000).
Non applicability of a specific EC rule without
putting under doubt the limitation of the Italian
system to access the EC
 How are the controlimiti conceived?

CONTROLIMITI AND THE

‘REPUBLICAN FORM’

• ACCORDING TO THE CASE LAW OF THE ITCC,

THE FORMULA ‘REPUBLICAN FORM’ USED IN
ART. 139 OF THE ITALIAN CONSTITUTION Viadrina

CORRESPONDS TO THE SUPREME PRINCIPLES Universit

INCLUDED IN THE FIRST PART OF THE ITALIAN

CONSTITUTION

ART. 139: THE FORM OF REPUBLIC SHALL NOT BE A

MATTER FOR CONSTITUTIONAL
 HOW FAR CAN GO THE
CONTROLIMITI THEORY?

1. WOULD IT BE POSSIBLE TO REALLY LIMIT EU LAW,

WHEN IT IS INFRINGING A CONSTITUTIONAL RULE?
2. IS THE CONTROLIMITI THEORY DENYING THE
Viadrina
SUPREMACY OF EU LAW? Universit

3. WHAT DO YOU THINK ARE THE ADVANTAGES AND

DISADVANTAGES OF SUCH THEORY?
 HOW FAR CAN GO THE
CONTROLIMITI THEORY?

DESPITE THE PRINCIPLE OF PRIMACY OF THE EU

LAW, IN POSSIBLE CONFLICTS BETWEEN THE
NATIONAL AND EUROPEAN LEVEL THERE
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WOULD BE A NUCLEUS OF CONSTITUTIONAL Universit

PRINCIPLES, WHICH ARE CONSIDERED

IMPERVIOUS TO THE EFFECTS COMING FROM EU
LAW ON NATIONAL SYSTEMS (G. P. DOLSO, 2017)
 CHANGING PERSPECTIVE TO
LOOK AT THE SAME ISSUE
UNTIL NOW:
PERSPECTIVE OF THE CONSTITUTIONAL COURT, WHICH
IS BASED ON THE CONTROLIMITI

NOW, A PERSPECTIVE, WHICH INTEGRATE THE FIRST ONE,Viadrina

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BUT WHICH IS A EU PERSPECTIVE

Conflict EU and
Constitutional Law
 THE CONSTITUTIONAL
IDENTITY

Primacy of EU “Constitutional
Law Identity”

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Art. 4 (2) TEU

2. The Union shall respect the equality of Member States before the Treaties as
well as their national identities, inherent in their fundamental structures, political
and constitutional, inclusive of regional and local self-government. It shall respect
their essential State functions, including ensuring the territorial integrity of the
State, maintaining law and order and safeguarding national security. In particular,
national security remains the sole responsibility of each Member State.
 THE CONSTITUTIONAL
IDENTITY

The CJEU did A number of

not define what National
the Constitutional
constitutional Courts have been Viadrina

identity is engaged in the

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definition of its
Relative content by
Interpretation of addressing what is
primacy for them their
constitutional
 identities

DIFFERENT NARRATIVES ON
EU CONSTITUTIONALISM
Constitutional Possible Claims of
Pluralism Constitutional
And Multilevel Autonomy within a
Constitutionalism non hierarchical
system Viadrina
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2 Tendencies
Absolute Primacy Relative Primacy as
as defended by defended by certain
the CJEU Constitutional Courts
 NATIONAL CONSTITUTIONAL COURTS
Those Constitutional Courts, which support a Relative
Primacy, base their position internally in different ways.
Germany (Solange): Article 79 paragraph (3) of the Basic Law for
the Federal Republic of Germany (German: Grundgesetz). The eternity
clause establishes that certain fundamental principles of Germany's
democracy can never be removed, even by parliament. The fundamental principles,
Viadrina
(i.e., "the basic principles" of Articles 1 and 20), are as follows:
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Duty of all state authority: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority."
(Article 1); Acknowledgement of human rights: "The German people therefore acknowledge inviolable and inalienable
human rights as the basis of every community, of peace and of justice in the world." (Article 1 Paragraph 2); Directly
enforceable law: "The following basic rights bind the legislature, the executive and judiciary as directly enforceable law."
(Article 1 Paragraph 3); Republic (form of government): (Article 20 Paragraph 1)
Federal state (Länder): (Article 20 Paragraph 1); Social state (welfare state): (Article 20 Paragraph 1); Sovereignty of
the People: "All state authority emanates from the People." (Article 20 Paragraph 2); Democratic: "All state authority is
exercised by the people by means of elections and voting and by specific legislative, executive and judicial organs."
(Article 20 Paragraph 2); Rule of law (Rechtsstaat): "Legislation is subject to the constitutional order. The executive and
judiciary are bound by the law." (Article 20 Paragraph 3); Separation of powers: "Specific legislative, executive and
judicial organs", each "bound by the law". (Article 20 Paragraphs 2–3)
 Art 325 TFEU-
COMBATTING
FRAUD - Internal
ITALIAN CONSTITUTIONAL COURT Market

Taricco I
Between 2005 and 2009, Mr. Taricco and others were charged before the Tribunale di
Cuneo for value-added tax (VAT) fraud concerning bottles of champagne.

ISSUE: “Since a 2005 Italian Penal Code (Codice Penale; IPC) revision shortened the
time by which limitation periods could be extended, VAT fraudsters could often not be
-

verja urt

adjudicated before their crimes would be time-barred. According to the IPC, the duration
of the limitation period for criminal offences is equal to the maximum duration of the Viadrina
penalty, and can be extended by no more than a quarter of this maximum. As tax evasion Universit

cases usually involve complex investigations, the duration of the proceedings is such that
de facto impunity is the norm rather than the exception.
The Tribunale thus referred to the CJEU the question whether IPC provisions on limitation
periods are at odds with EU law, specifically, Articles 101, 107, 119 of the Treaty on the
Functioning of the EU (TFEU) on competition and economic policy and Article 158 of
Council Directive 2006/112/EC on warehousing exceptions.
In response, in its ruling in Taricco I the CJEU empowered the Tribunale di Cuneo to
disapply the IPC provisions at hand”.
The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity, Robbert Bruggeman and Joris Larik, (2020) 35(1) Utrecht Journal of
International and European Law pp. 20–34, P. 25
 ITALIAN CONSTITUTIONAL COURT

After Taricco I: DEBATE WITHIN THE ITALIAN SYSTEM

Constitutional Principle: set the sanctions/terms in advance in
criminal law
Problem of the fundamental rights of the charged person
ACCORDING TO THE COURT: The EU did not set any rule on Viadrina
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the limitation period.
Taricco I: does not comply with the principle that the law has to be
foreseeable and precise.

The Italian constitutional Court: ORDER TO THE CJEU

 ITALIAN CONSTITUTIONAL COURT

“The Corte argued that in view of Italy’s constitutional identity, the

CJEU’s decision ‘cannot be interpreted as requiring a Member State
to give up the supreme principles of its constitutional order’.”

The It.Const. Court: “it is acknowledged that the duty of Article 325
TFEU still exists, however, it should rather be for the Italian legislator
to enact effective legislation to that end.” Viadrina
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“…the Corte Costituzionale noted that the Italian Constitution offers a

higher level of fundamental rights protection, in line with Article 53
CFR, pursuant to which Member States may maintain higher levels of
fundamental rights protection than those provided for under EU law.“
The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity, Robbert Bruggeman and Joris Larik, (2020) 35(1) Utrecht Journal of International
and European Law pp. 20–34, P. 26 FF.
 ITALIAN CONSTITUTIONAL COURT

RESPONSE of the CJEU: Taricco II. The Order of the CJEU

… the Court … stresses the obligation stemming from Article 325

TFEU, the direct link between domestic VAT fraud and the Union’s
financial interests, and the necessity of criminal penalties in
combatting serious cases of VAT fraud.
After this, however, the Court acknowledges that limitation was ‘at Viadrina
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the time’ not subject to EU harmonisation, which allowed for Italy’s

substantive interpretation, subjecting it to the principle of legality.
The CJEU recalls the requirements of foreseeability, precision,
and non-retroactivity of criminal law, as enshrined in Article 49
CFR. It states that in view of Article 51(1) CFR on the scope of the
Charter, implementing Article 325 TFEU cannot run counter to
Article 49 CFR.”
SOURCES FOR THESE SLIDES:

➢ THE CONSTITUTION OF ITALY: AXIOLOGICAL CONTINUITY

BETWEEN THE DOMESTIC AND INTERNATIONAL LEVELS OF
GOVERNANCE?, GIUSEPPE MARTINICO, BARBARA GUASTAFERRO
AND ORESTE POLLICINO, IN ANNELI ALBI AND SAMO BARDUTZKY
EDITORS, NATIONAL CONSTITUTIONS IN EUROPEAN AND GLOBAL
GOVERNANCE: DEMOCRACY, RIGHTS, THE RULE OF LAW, Viadrina
Universit
NATIONAL REPORTS, SPRINGER, 2019; THE ITALIAN CONSTITUTION.

➢ THE ELUSIVE CONTOURS OF CONSTITUTIONAL IDENTITY:

TARICCO AS A MISSED OPPORTUNITY, ROBBERT BRUGGEMAN AND
JORIS LARIK, (2020) 35(1) UTRECHT JOURNAL OF INTERNATIONAL
AND EUROPEAN LAW PP. 20–34
Dr. Tania Bazzani

Italian Constitutional Law

Fundamental Principles
0
 Fundamental Principles of
the Italian Constitution

0
 Fundamental Principles of
the Italian Constitution
1.Democracy - art. 1, 1st paragraph
2. Popular sovereignty - art. 1, 2nd paragraph
3. Inviolability of rights - art. 2
4. Formal equality and substantial equality - art. 3
5. Right to work - art. 4
6. Recognition of local autonomies - art. 5
7. Protection of linguistic minorities - art. 6
8. Religious freedom - art. 8
9. Development of culture, environmental protection and historical and artistic
heritage - art. 9
10. Recognition of international collaborations - art. 10
11. Rejection of war as an instrument of offense a - art. 11
0
12 Structure of the Italian flag - art. 12
 Art. 1

Italy is a democratic Republic, founded on

labour.
Sovereignty belongs to the people, which
exercises it in the forms and within the
limits of the Constitution

0
 Art. 1

0
 Art. 2

0
 Art. 3

0
 Art. 4

0
 Art. 5

0
 Art. 6

0
 Art. 7

0
 Art. 8

0
 Art. 9

0
 Art. 10

0
 Art. 11

0
 Art. 12

0
key words conflict regions
-
State

autonomy E > unity

regional Statutes national scrutiny

·
division of competence
subsidiarity
principle of
·

regional legislative power

Dr. Tania Bazzani

Italian Constitutional Law

The Subsidiarity Principle
2
3
4
Principle of Subsidiarity

Administrative functions must be carried out by the

institutions ‘‘closest to the citizens’’—in the instant
case, by the municipalities—‘‘unless they are
attributed to the provinces, metropolitan cities and
regions, or to the State, pursuant to the principles of
subsidiarity, differentiation, and proportionality, to
ensure their uniform implementation.’’ (Art 18, It.
Const.)

Tania Groppi and Nicoletta Scattone, Italy: The Subsidiarity Principle, p. 133 (see in moodle)
5
Constitutional Law

- 2001 constitutional reform

- Decisions concerning jurisdictional disputes
between the state and the regions increased
from 2 percent of the docket in 2002 to 15
percent in 2003, to 22 percent in 2004:
- guarantee of constitutional rights: incidenter (ordinary court)
proceedings resulting from a constitutional claim lodged
during separate court proceedings.

Tania Groppi and Nicoletta Scattone, Italy: The Subsidiarity Principle, p. 131 (see in moodle)
6
Constitutional model
Constitution of 1948: new model of government

- Neither a unitary state nor a federation but 21 regions

with degree of autonomy: subsequently adopted by other
European states such as Spain, Belgium, and Poland;

- This model: the legislative power given to both the

national and regional parliaments (as in federal systems)
but with limitations on the powers of the regions derived
from the supremacy of the central state.

7
Constitutional model

Regional statutes had to be submitted to the

national government for review before
coming into effect and also prescreened by
-

the Constitutional Court for their

constitutionality.

8
 First implementation
• Considerable delay in setting up the regions
(only in 1970, with exception of the five special
regions created shortly after World War II).
• Moreover, the limited powers of the regions
and the complicated relations among the three
different levels of government all contributed to
making the system relatively inefficient.

9
First implementation

This system worked in a very centralist way,

mainly because the national government was
able to infringe on the constitutional separation
of powers by citing the ‘‘national interest’’ clause
(contained in former art. 127 of the Constitution)
to justify legislation on subject matter supposed
to be assigned to the regions.

10
Constitutional Reform 2001
Constitutional Law no. 3, October 18, 2001, amending
articles 114–133

Intense political debate (North-South; efficiency; etc.)

Wide range of other subject matter, that relates

to the concurrent or shared legislation of both the
state and regions. In this context, the regions
have legislative power over all subjects except
for the fundamental principles that are still
questions of state law.
11
The shift

Drastic transformation: prior to this amendment, the

regions were authorized to approve laws only on the
subjects enumerated in the Constitution and only within
limits prescribed by the state.

Despite this change, often problems of interpretation

12
The shift

Control on the regions’ statues: ex post -

the state can lodge a claim against a
regional law only after it has been enacted
All references to ‘‘national interest’’ have
disappeared
Financial autonomy of the regions and of
local authorities: strengthened.
13
Problems

The national Parliament appears reluctant to

allow regional parliaments to legislate on the
new specifically regional subjects.
Regional governments have frequently asked the
Constitutional Court to set the infringement of
regional competences.

14
Constitutional Court‘s
interpretation
Just after the approval of the constitutional amendment,
the regions of Tuscany, Marche, Campania, Basilicata,
Emilia-Romagna, Umbria, and Lombardy, along with the
autonomous provinces of Bolzano and Trento, lodged
constitutional complaints against several provisions
of Law no. 443 of December 21, 2001. This law assigns
to the national government the task of locating public
and private infrastructures and strategic production
sites pertinent to developing and modernizing the country.
The law was considered unconstitutional.

15
Constitutional Court‘s
interpretation

According to the regions:

- This subject was not exclusive competence of

the State
- This law infringed:
- previous agreements between regions and State
(bilateral decision-making process)
- Regional concurrent legislative power

16
Constitutional Court‘s
interpretation… Derogation?

Derogation of regional competences: when it is

possible?
Only to the extent that it is proportionate to the
public interest that justifies the exercise of
regional functions by the state.
The derogation should not be unreasonable in
light of strict constitutional scrutiny

17
Constitutional Court‘s
interpretation… in the specific
case
The Constitutional Court envisages a procedure to
be followed to guarantee a flexible application of the
principle of subsidiarity.
Dialogue State – regions.
OK national competence in planning infrastructures,
BUT advice of the so-called Unified Conference (a
conference of state ministers and the presidents of regions,
provinces, and municipalities, instituted by statute in 1997)
18
Flexibility

The Constitutional Court introduced an unwritten flexibility

clause, similar to that contained in article 72 of the German
Grundgesetz:
The State can intervene when a certain level of government is
inadequate to reach a certain goal.
Some authors: concern re-introduce the concept of national
interest.
However, the Const. Court set specific criteria:
- the evaluation of unitary interests must be proportionate and
not unreasonable;
- prior agreement between the state and the regions
19
Flexibility

Obligation of an agreement: is it enough to open

negotiations?
Process of a joint decision: evokes the concept of
cooperative federalism and, in particular, the German
principle of federal loyalty (Bundestreue)

Court: guardian of the principle of equitable cooperation

Thus, the distribution of competences determined by the

constitutional reform of 2001 is flexible.

20