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Observatory on the practices of inter-legality by Italian Courts

The aim of this Observatory is to give empirical evidences (as it is inherent to the inter-legality approach) to the evolution of the relationship between the Italian constitutional order and the EU on a crucial issue as it is the protection of fundamental rights.
It is based on two pillars, focusing on different aspects of fundamental rights cases’ adjudication in the Italian legal order.

The first pillar aims to offer instrument to elaborate on the seminal judgment by the Italian Constitutional Court no. 269/2017 which nudged to give a new centrality to the same Court. In cases of dual preliminarity (so involving both a question of constitutionality and a matter of interpretation or validity of EU law), the ItCC asked to put the former before the latter, so subverting its own position which had been settled since the 1980s. The Observatory will list and give a brief presentation to both:

  • questions of constitutionality submitted to ItCC by ordinary courts (and subsequent decisions by the same ItCC), so following the new approach fostered by it;
  • decisions by ordinary courts which do not follow such approach (either by raising a preliminary reference to the CJEU or by directly disapplying conflicting domestic law).

The second pillar is more focused on the ItCC and its attitude toward supranational law in adjudicating fundamental rights cases, when both internal constitutional norms and external standards (in particular, CFREU, and ECHR) had been simultaneously invoked.
 

 

 

Ordinary Courts & ItCC 269/2017

Questions of constitutionality which contributed to the refinement of the new doctrine on dual preliminarity.

  • 19 March 2017, order by the Court of Appeal of Milan, decided by the ItCC with the judgment no. 63/2019 (EN translation). Relevant norms: articles 3 and 117.1 Const.; article 49 CFREU. Fundamental right(s) at issue: legality in criminal matters, retroactivity of sanctions.
  • 19 September 2017, order by Tribunale amministrativo del Lazio (sect. 1-quarter), decided by the ItCC with the judgment no. 20/2019 (EN translation). Relevant norms: articles 2, 3, 13 and 117.1 Const; articles 7, 8 and 52 CFREU. Fundamental right(s) at issue: privacy.
  • 16 February 2018, several orders by Court of Cassation. Relevant norms: articles 24, 117, 117.1 Const.; article 47 CFREU. The ItCC, with the order no. 117/2019 (EN translation), issued a preliminary reference to the CJEU, suggesting an interpretation of articles 47 and 48 CFREU consistent with articles 24 Const and 6 ECHR. The Court of Justice (Grand Chamber) accepted the suggestion (case C-481/19). The ItCC later applied the agreed interpretation (judgment 84/2021) Fundamental right(s) at issue: judicial protection, fair trial.
  • After a preliminary reference to the Court of Justice (C-302/19), the Cassation referred to the Constitutional Court and the latter seized the opportuinity to clarify once and for all that the 269-doctrine does not prevent previous involvement of the ECJ (judgement 67/2022, EN translation).

 

Questions of constitutionality coherent with ItCC 269/2017

  • 26 March 2019, Tribunale amministrativo regionale per il Lazio (sect 2), orders 99-100/2019. Relevant norms: articles 3, 11, 41, 117 Const.; articles 16, 20, 21 CFREU. The question was admitted and discussed, but declared unfounded by the ItCC (judgement 49/2021).
  • 17 June 2019, several orders by the Court of Cassation. Relevant norms: articles 3, 31 and 117.1 Const.; articles 20, 21, 23, 33 and 34 CFREU. The ItCC, with the order no. 182/2020 (EN translation), issued a preliminary reference to the CJEU. The Court of Justice agreed on the incompatibility of domestic provisions with the article 34 of the Charter (case C-350/20). Fundamental right(s) at issue: social security, protection of motherhood.
  • 17 October 2019, Tribunale di Bolzano order 78/2020. Relevant norms: articles 2, 3, 11, 29, 117 Const.; articles 7, 21 CFREU. Fundamental right(s) at issue: personal identity, non-discrimination, respect for private and family life. TBD.
  • 16 December 2019, Collegio Arbitrale ANAC, order 105/2020. Relevant norms: article 3, 97 Const. Fundamental rights at issue: efficienty and impartiality of the public administration. Declared inadmissible (judgement 239/2021). Only judgement abiding by the 269-doctrine in which Charter rights are not clearly identified (so far).
  • 4 February 2020, order n. 102/2020 by the Court of Cassation. Deemed inadmissible by the ItCC, becasue of the intervention of the legislator in February 2021 (Order 60/2021). Relevant norms: articles 3, 11, 27.3, 117.1 Const.; articles 7, 21 CFREU. Fundamental right(s) at issue: respect for private and family life, equality and non-discrimination in the application of the European Arrest Warrant.
  • 10 February 2020, order 174/2020 by Tribunale amministrativo del Lazio (section second bis). Relevant norms: articles 3, 11, 24, 28, 47, 97, 101, 102, 103, 111, 113, 117 c. 1 Const.; article 47 CFREU. Fundamental rights at issue: equality, liability of State’s officials, constitutional protection of savings, efficiency and impartiality of the administration, effective judicial protection (TBD).
  • 02 May 2020, Tribunale di Brescia, order 106/2020. Relevant norms: articles 2, 3, 38, 117 Const.; articles 20, 31, 34 CFREU. Fundamental rights at issue: non-discrimination, social security, fair working conditions. TBD.
  • 02 July 2020, order n. 183/2020 by the Court of Cassation. Relevant norms: articles 3, 41, 45, 47, 53 Const.; articles 16 and 41 CFREU. Explicit reliance on judgment 269/2017 to justify the prior involvment of the ItCC. Rejected by the Constitutional Court (judgment 149/2021).
  • 10 July 2020, Tribunale di Bergamo, order 180/2020. Relevant norms: 2, 3, 31, 38, 117 Const.; articles 20, 21 CFREU. Fundamental rights at issue: non-discrimination, social security. TBD
  • 17 September 2020, Corte d'Appello di Milano, order 194/2020. Relevant norms: 2, 3, 32, 111 Const.; 35 CFREU. Fundamental rights at issue: health care, fair trial. The Constitutional Court referred the question to the Court of Justice (order 216/2021). TBD
  • 27 October 2020, Corte d'Appello di Bologna, order 42/2021. Relevant norms: articles 2, 3, 11, 27(3), 117(1) Const.; article 7 CRFEU. Fundamental rights at issue: rieducational function of criminal sanctions, respect for family life. The Constitutional Court referred the question to the Court of Justice (order 217/2017). TBD
  • 06 November and 11 December 2020, orders 14 and 29/2021, Corte d'Appello di Lecce. Relevant norms: articles 11 and 117 Const.; article 48 CFREU. The question was admitted and discussed, but declared unfounded by the ItCC (judgment 182/2021).
  • 10 November 2020, Tribunale di Roma, order 88/2021. Relevant norms: articles 3, 27, 117 Const.; article 48 CFREU. Fundamental rights at issue: presumption of innocence and right to defence. TBD.
  • 11 March 2021, Corte d'Appello di Salerno. Relevant norms: articles 2, 3, 24, 29, 30, 111 Const., article 24 CFREU. Fundamental rights at issue: rights of the child. TBD.
  • 26 March 2021, Collegio Arbitrale di Vicenza. Relevant norms: articles 3, 24, 41, 111 Const.; 16 and 52 CFREU. Fundamental rights at issue: effective judicial protection, freedom to conduct a business. TBD.
  • 26 April 2021, Council of State. Relevant norms: 3 Const.; 49 CFREU. Fundamental right at issue: lex mitior. TBD.
  • 26 June 2021, Court of Cassation, order 137/2021. Relevant norms: 3, 10, 24, 111; articles 18, 19, 47 CFREU. Fundamental rights at issue: non-discrimination, effective judicial protection. Declared unfounded (judgement 13/2022).
  • 12 July 2021, Tribunale di Firenze. Relevant norms: 2, 3, 23, 24, 41, 42, 45, 47, 111 Const.; articles 17 and 47 CFREU. Fundamental rights at issue: property, effective judicial protection. TBD.
  • 27 January 2022, Tribunale di Milano. Relevant norms: 3, 11, 27, 42, 111 Const.; 17, 48, 49 CFREU. Fundamental rights at issue: property, legality in criminal law.

In further decisions, mainly orders containing preliminary references to the CJEU, some judges fill anyway bond to underline that the case do not involve fundamental rights and so there is no need to follow the indications given by ItCC 269/2017 (e.g. 23 September 2019, Council of State (IV sect.), orders (I and II) related to C-721/19 and C-722/19)

 

Decisions diverging from ItCC 269/2017

  • 19 September 2018, Giudice di pace de L’Aquila: preliminary reference to the CJEU (case C-618/18, manifest inadmissibility declared on 17 December 2019). Relevant norms: Articles 36, 97, 102, 106, 111.1 and 111.2, 117.1; Articles 31.2 and 47 CFREU. Questions the new doctrine, embracing the reading according to which constitutional courts cannot claim any monopoly of interpretation of fundamental rights if the latter are also protected by the CFREU, as it would harm the role of the CJEU. (see §71-72). Fundamental right(s) at issue: fair wage for onorary judges.
  • 26 September 2018, order by Tribunale amministrativo del Lazio (sect. III): preliminary reference to the CJEU (case C-719/18 Vivendi, judgment released on 2 September 2020). Relevant norms: articles 21, 41 Const.: articles 11.2, 49 CFREU. No mention whatsoever of ItCC 269/2017. Fundamental right(s) at issue: freedom of expression; media companies.
  • 16 October 2018, Giudice di pace di Bologna: preliminary reference to the CJEU (case C-658/18 Ux, judgment released on 16 July 2020). Relevant norms: article 31(2) CFREU. Actually, quite close to the logics of the ItCC: the question of constitutionality is avoided because it would have implied a scrutiny of the discretionally decisions by the Parliament (see §37-38). Thus, expecting a decision of inadmissibility by the ItCC, the judge raises the preliminary reference to Luxembourg. Fundamental right(s) at issue: fair wage for onorary judges.
  • 17 December 2018, Tribunale Amministrativo Regionale per il Lazio. Relevant norms: articles 16 and 17 CFREU. Fundamental right(s) at issue: freedom to conduct a business, right to property. Judgment released on 15 April 2021 (C‑798/18 and C‑799/18).
  • 18 December 2018, Tribunale Amministrativo Regionale per il Lazio. Relevant norms: articles 15, 20, 21 and 31 CFREU. Fundamental right(s) at issue: equality before the law, non-discrimination, fair and just working conditions. Deemed inadmissible on 15 May 2019 (C‑789 and 790/18).
  • 21 January 2019, Court of Cassation: preliminary reference to the CJEU and favourable answer in Luxembourg (Joined Cases C‑762/18 and C‑37/19). Relevant norms: Article 36.3 Const.; Article 31 CFREU. The Cassation bluntly denies the binding value of the request made by the ItCC with the decisions no. 269/2017, as that part is in a “obiter dictum” (see §47). Fundamental right(s) at issue: protection of workers.
  • 29 January 2019, Court of Cassation. Relevant norms: articles 20 and 21 CFREU. Fundamental right(s) at issue: equality before the law, non-discrimination. Judgement issued on 16 July 2020 (C-129/19).
  • 03 April 2019, Tribunale di Napoli. Relevant norms: article 21 CFREU. Fundamental right(s) at issue: non-discrimination on religious grounds. Answered in a favourable manner in Luxemburg (C-282/19).
  • 15 April 2019, Tribunale Amministrativo Regionale per il Lazio. Relevant norms: articles 16, 17 CFREU. Decided in March 2022 (joint cases C‑306/19, C‑512/19, C‑595/19 and from C‑608/20 to C‑611/20).
  • 23 July 2019, Council of State. Relevant norms: articles 16 and 28 CFREU. Fundamental rights at issue: freedom to conduct a business, right to collective bargaining. Decided in October 2021 (C-561/19).
  • 29 May 2020, Tribunale Amministrativo Regionale per il Lazio. Relevant norms: article 54 CFREU. Fundamental rights at issue: abuse of rights. Erased from the register (C-419/19).
  • 05 August 2019, Tribunale di Milano. Relevant norms: articles 20 and 30 CFREU. Fundamental right(s) at issue: equality before the law, protection in the event of unjustified dismissal. Judgment issued on 17 March 2021 (C-652/19).
  • 18 September 2019, orders by the Corte d’Appello di Napoli (section I on labor law). Simultaneous reference to the Court of Justice and the ItCC, both deemed inadmissible (C-32/20 and judgment 254/2020). Relevant norms at issue: articles 3, 34, 38 Const.; 20, 21, 30, 34, and 47 CFREU. Fundamental right(s) at issue: equality and non-discrimination, protection of work and social security, effective judicial protection.
  • 19 September 2019, Council of State. Relevant norms: article 21 CFREU. Fundamental right(s) at issue: non-discrimination. Judgment issued on 03 June 2021 (C-914/19).
  • 14 January 2020, Tribunale Amministrativo Regionale per la Puglia. Relevant norms: article 41 CFREU. Fundamental right(s) at issue: right to good administration. Deemed inadmissible (C-17/20).
  • 18 May 2020, Giudice di pace di Lanciano. Quasi-simultaneous reference to both the ECJ and the ItCC (the former sent on 18 May, the latter on 28 May - order 184/2020). Deemed manifesly inadmissible both at the ECJ (order 220/20) and in Rome (judgement 31/2022). Relevant norms at issue: articles 3, 4, 32, 36, 38, 76, 77, 97, 101, 102, 104, 106, 107, 108, 111, 117, 120 Const.; articles 1, 6, 15, 20, 21, 30, 31, 34, 45 e 47 CFREU. Judgment 269/2017 explicitly recalled to justify the simultaneous reference. Fundamental right(s) at issue: non-discrimination, fair and just working conditions, social security, judicial independence, effective judicial protection.
  • 27 May 2020, Tribunale amministrativo regionale per l’Emilia Romagna: preliminary reference to the CJEU. Relevant norms at issue: articles 20, 21, 31, 33, 34 and 47 CFREU. Fundamental right(s) at issue: fair wage for onorary judges. Decided in April 2022 (C-236/20).
  • 18 September 2020, order 19598/2020 by the Court of Cassation (Combined Chambers). Preliminary reference to the Court of Justice (C-497/20). Explicit attempt to overcome the ItCC's case law on article 111(8) of the Constitution by referring to the Court of Justice. Relevant norms at issue: article 111 Const.; article 47 CFRUE. Fundamental right(s) at issue: right to effective judicial protection. Denied by the ECJ, which deferred to Italy's procedural autonomy
  • 09 March 2021, Court of Auditors (Region Campania). Relevant norms at issue: article 47 CFREU. Fundamental rights at issue: effective judicial protection. Deemed inadmissible (C-161/21).
  • 8 april 2021, Court of Cassation. After a preliminary reference ex article 267 TFEU, the Court of Justice deemed the Italian legislation on third country nationals access to welfare allowances incompatible with Directive 2003/109/EC (C-302 and 303/19). The Cassation referred to the Constitutional Court, asking to remove the domestic legislation. The Constitutional Court deemed the EU provision directly effective and dismissed the request (inadmissible). Relevant norms at issue: articles 11 and 117 Const.; article 34 CFREU. Fundamental right(s) at issue: social security and social assistance.
  • 26 May 2021, Tribunale di Rieti. Relevant norms at issue: articles 7, 8, 11, 52 CFREU. Fundamental rights at issue: private life, personal data, effective judicial protection. Erased from register (C-334/21).

ItCC & supranational law

  • 23 October 2019, ItCC judgment no. 253/2019 (EN translation), released upon the questions of constitutionality issued by the Court of Cassation and the Perugia Supervisory Court in the debated cases of ‘irreducible’ sentences of life imprisonment. The ItCC held the automatic blanket ban on access to bonus leaves of absence for lifelong imprisonment for Mafia Crimes was unlawful under the “domestic” articles 3 and 27 It. Const. The referral orders were submitted before the ECtHR decision in the case Viola v. Italy (no. 2), so ECHR could not be a formal yardstick through article 117.1 It. Const. Furthermore, the Viola case concerned whole-life prison sentences for Mafia crimes in general, while the ItCC ruled only on bonus leaves of absence. Nevertheless, the ItCC briefly relied to the Viola case to describe the features of judicial and police cooperation required by Italian legislation as an undue general condition for convicted people to enjoy bonus leaves of absence and other alternative measures