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Observatory on the practices of inter-legality by Italian High 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 coherent with ItCC 269/2017

  • 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 (case C-481/19, TBD). Fundamental right(s) at issue: judicial protection, fair trial.
  • 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 (case C-350/2020, TBD). Fundamental right(s) at issue: social security, protection of motherhood.
  • 4 February 2020, order no. 10371/2020 by the Court of cassation. 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.

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. Open refusal to follow the new position fostered by the ItCC, 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.
  • 21 January 2019, Court of Cassation: preliminary reference to the CJEU (TBD, case C-37/19, conclusions of the AG Hogan on 29 January 2020). Relevant norms: Article 36.3 Const.; Article 31 CFREU. 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.
  • 27 May 2020, Tribunale amministrativo regionale per l’Emilia Romagna: preliminary reference to the CJEU (case C-236/20, TBD). Similar case to that raised by the Giudice di pace di Bologna (see above). No mention whatsoever of ItCC 269/2017. Fundamental right(s) at issue: fair wage for onorary judges.

 

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