Breaking the Isolation? Italian Perspectives on the Dialogue Between the European Court of Justice and Constitutional Courts

European Public Law is an English language journal edited at the Institute of European Public Law at the Law School, Hull University. A forum for the discussion of issues in the development of public law, the journal traces the public law of the Member States as it is shaped by the law of the European Union as well as by the Council of Europe’s European Convention on Human Rights.

European Public Law provides a detailed analysis of constitutional and administrative law at a crucial stage of European integration and legal development. In its articles, authorities in the field investigate the extent to which the separate systems of public law in each Member State are, notwithstanding their distinct historical and cultural backgrounds, developing a European Public Law in tandem with the law of the European Union Treaty. The journal also examines the public law systems of new Member States.

Without neglecting the more traditional concerns of constitutional and administrative law, the journal explores the emerging constitution of the European Union and the interplay between law and politics. It is concerned with the identification, examination and control of public power as public and private become ever more intertwined. Public law is given a wide interpretation, including the structure of government, judicial review, the conduct of regulatory bodies, redress of grievance through ombudsmen and administrative bodies, protection of human rights and protection against discrimination, openness and transparency, fiscal and monetary policy, and the role of regulation in the contemporary state and the European Union.

In short, the journal embraces the operation and control of government and government agencies, regulation of economic and commercial affairs and relationships between the state and individuals.This article focuses on the relationships between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (ECJ) when the necessity of managing policies affecting delicate constitutional issues is at stake. The mechanisms which govern the use by national courts and particularly constitutional courts of the preliminary reference are put under scrutiny. The author claims that for the dialogue between the two courts to work is important to review the legal premises on which the involvement of a constitutional court in matters of European Union (EU) law is based. In Italy in principle only when EU law lacks direct effect would there be room for the ICC to intervene in the process of adaptation of the domestic legal system to the European, irrespective of the matter at stake. In this way the role of a constitutional court is barely distinguishable from regular courts. The article purports that this situation is unsatisfactory from a normative point of view according to which constitutional courts should take part – using preliminary reference to the ECJ – in a broader European constitutional discourse and that a concept of ‘ sensitive constitutional issues ’ should instead inspire the mechanism by which constitutional courts deal with the area covered by Article 267 TFEU.