P6; CH3: Italian Constitutional Court and the Doctrine of Counterlimits

Question 1

Where did EU LAW is founded in the Constitution?

Answer 1

Art.11 Cost., so not outside the national system or modifying the Constitution

It follows that it allows for derogations and not-limitless erosion of sovereignty in favour of EU System

Question 2

What’s the Doctrine of Retroaction?

Answer 2

Developed in Granital by the Consulta and founded on a dualist construction, this doctrine states that:
- EU law and National systems are separated and autonomous
- Italian system recedes/retracts from the space occupied by the acquis if conflicting norms
- Judges have the power to NON APPLY domestic conflicting law (not disapply, which presumes a ground of invalidity)

Question 3

What’s the Doctrine of Counterlimits?

Answer 3

It applies when national and eu differences are exacerbated. This doctrine counteracts limitations of domestic sovereignty when the pre-eminence of certain fundamental principles of the Italian Constitution are at stake.

Question 4

Does the Doctrine of Counterlimits apply oftenly?

Answer 4

No, since generally Italian judges tend to follow ECJ and Primacy of EU LAW.
Moreover, since there’s a common cultural basis, every legal disputes between national and eu level can be easily resolved most of the times.

Question 5

Taricco case implications

Answer 5

• REVERSE PRIMACY THEORY: since fund. rights are superior to EU LAW, the latter retroacts when conflicting with fund. rights
• JUSTICE CARTABIA’s OPINION: the division of competences makes the national judges in charge of deciding + the reverse primacy theroy is necessary for the constitutionality of the European Integration Process

Diversity between ECJ and ICC is based on the different grounds of legitimation of EU law

Question 6

What are the consequences of the diversity between ECJ and ICC regarding the different grounds of legitimation of EU law?

Answer 6

a) A supreme national court may create areas of exclusive domestic jurisdiction by unilaterally invoke the founding principles underlying the counterlimits.
[Case of consiglio di stato: health and equality prevailed over free market]

b) The ICC may interfere in the (exclusive) interpretation of EU Law

c) The ICC must proactively intervene whenever a domestic provision implementing Union’s law conflicts with both the Italian Constitution and the Charter of Fundamental Rights