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Implementing "EU Law" by Italian national judges: an introduction

25 March 2015, Nicola Canestrini

Typically, national judges must strive to interpret national law in compliance with their national Constitutions.

In addition, they are under the obligation to interpret domestic laws in such manner so as not to breach EU and ECHR law obligations.

This duty results from the principle of primacy of EU law over national law, and from the obligation of the High Contracting Parties to ensure that the Convention is implemented within the domestic legal order.

According to the doctrine of consistent interpretation, a national judge has to choose among the different possible interpretations of a domestic norm one that does not lead to a conflict with EU norms or the ECHR.

In particular, as far as EU law is concerned, consistent interpretation is a technique through which national judges can sometimes overcame the lack of implementation of EU legislation by the domestic legislator, eventually limiting the implications of the lack of horizontal effect of certain EU secondary sources (notably, directives).

Under italian law, the national judge can directly disapply national law conflicting with EU law only if it is self executing ("direct effect"); if EU law has'nt the direct effect, including ECHR provisions, the only viable way is to strike them down through the constitutional review.

In order to perform conform interpretation with EU law, national judges must use the room available under national law (as a whole) in order to achieve the purpose of the EU act.

In decision 227/2010 the Italian Constitutional Court struck down as unconstitutional Art. 18, cl. 1, lett. r of Italian Law no. 69 of 22 April 2005 which, implementing the European Arrest Warrant discipline, established that an Italian judge could legitimately refuse to extradite an Italian citizen while provided that the same judge could not refuse to extradite a citizen from any other European country. The judges of the Italian Constitutional Court ruled, in fact, that this Law was unconstitutional because discriminatory under European Union law. The Court stated, in fact, that judges can refuse to extradite citizens of any European country legally and effectively residing in Italy.

Within the Italian legal system, firstly Arts. 11 It. Const. and then, expressly, Art. 117, cl. 1, It. Const. provide the foundation for Italy's participation to the European Union and for the principle that European Union Law prevails over national lawand that national judges, almost always, have the duty to disapply national laws which are incompatible with European Union Law (see Const. Court, decisions no. 170/1984; the only exception is if Eu law breaches the fundamental principles of the constitutional order or the fundamental rights of the individuals, so called "counter-limits doctrine").

The supremacy of EU law is recognized by the constitutional court by means of an imperative interpretation of art. 11 It. Const. and was further acknowledged through the 2001 constitutional amendment, according to which the ?obligations deriving from the Community system? (art. 117, 1° c., Cost.) over the domestic legislative power are for the first time formally included in the constitutional charter.

However, in this case the European decision was not directly applicable: indeed, in these cases ? the Constitutional Court stated that national laws need to be declared unconstitutional and ordinary judges cannot merely disapply it.

The Court firmly clarifies, in this occasion, the right procedure to follow for non selfexecuting directives: same cannot lead to the non-application of the internal conflicting provision.

In accordance with the primacy of community law, though, these latter cannot be applied either: accordingly, the only viable way is to strike them down through the constitutional review.

In this sense, it is important to recall that judgment no. 28/2010, which very clearly defines the EU provisions as binding and prevailing over the internal laws thanks to art. 11 and 117, para. 1, It. Const.: but if the national law is in conflict with a community act without direct effect the national judge canot merely disapply the conflicting national law, but has to promote an incidentaliter proceeding before the italian Constitutional Court.

In sum, it is possible to grasp in the reasoning of the Court that, together with the a very classical (and steady) reading of the primacy of community law - even in a sensitive field as criminal law and even if the community law is not self-executing -, another equally classical reading of the non-application of the internal provision in conflict with non selfexecuting directive is thus reaffirmed: the judge cannot "disapply" the conflicting law but have to pass through a declaration of unconstitutionality - with the corresponding "supremacy" of the Constitutional Court in this field.

Vice versa, if the european provision is immediatly applicabile (principle of direct effect), it enables individuals to immediately invoke a European provision before a national or European court .

As far as primary legislation is concerned, i.e. the texts at the top of the European legal order, the Court of Justice established the principle of the direct effect in the Van Gend & Loos judgment (1963). However, it laid down the condition that the obligations must be preciseclear and unconditional and that they do not call for additional measures, either national or European. It should be noted that the the direct effect relates even to acts from secondary legislation: regulations, directives (ECJ Judgement of 4 December 1974, Van Duyn and if the Member States have not transposed the directive by the deadline Judgement of 5 April 1979, Ratti), decisions (Judgement 10 November 1972, Hansa Fleisch), but even international agreements (ECJ Demirel Judgement of 30 September 1987 in accordance with the samecriteria identified in the Judgement Van Gend en Loos).

European Convention of Human rights has a sub-constitutional status in the italian legal system: it prevails over ordinary law but has to be interpreted according to italian Constitution.

Regarding specifically the European Convention of Human Rights, the italian Constitutional Court has affirmed its "subcostitutional status"; that means that ECHR prevails over ordinary law but has to be interpreted according to italian Constitution. It has to be noted that the relationship between national and supranational legal order, is very complicated: the Constitutional Court alternates between a "circular model" (judgement No. 388/1999, regarding shyly the complementarity of interpretation for affirming human rights between the European Convention and the italian Constitution ) and the classic "pyramidal model" (Judgment 49/2015, stating that only “consolidated law” resulting from the case law of the European Court on which the national courts are required to base their interpretation, whilst there is no obligation to do so in cases involving Strasbourg rulings that do not express a position that has not become final).

Present-day the Italian and ECHR legal system coexist in a complicated geometrical structure: the impression is that the It. Constitutional Court does not accept the alignment of It. constitutional structure to ECHR system, (still) affirming that italian constitutional system .. superiorem non recognoscens.

For the future, it seems that the readiness of different kinds of legal order to co-operate and enter into dialogue is the only constructive way of dealing with differences and preventing legal conflicts.

This kind of "legal coexistence" is impossible under conditions of subordination: future will clarify if the Italian Constitutional Court is going to take up the challenge .



Post scriptum: according to EUobserver, an independent online newspaper, Italy had the worst record among all member states in 2013 when it came to implementing EU laws. An EU commission performance chart on EU law compliance noted Italy had 104 infringement cases in 2013, followed by Spain (93), and Greece (79). The best performers were Latvia, Malta and Estonia.