European Union Law in the Jurisprudence of Italian High Courts: Is the Counter- Limits Doctrine a Dog That Barks but Does Not Bite?

Abstract:

In many Member States Community law has been accepted through the adoption of specific rules of a constitutional nature, in order to identify the specific position of European Union (EU) Law within the national legal system. This was not the case for Italy where, for a long period of time, no special rule of a constitutional nature has been adopted for this specific purpose. In this complex situation the Italian Constitutional Court has constantly stressed the need to protect the fundamental principles of our constitutional law and the inalienable rights afforded to human beings and had identified both as part of a nucleus of Italian constitutional norms resistant to Community norms (controlimiti). Even after the adoption of the Treaty of Lisbon – where, thanks to Article 4 paragraph 2 TUE and Article 53 of the Charter of Fundamental Rights, a ‘unionization’ of the counter-limits has taken place – the Italian Constitutional Court, in a recent judgment of October 2014, has referred again to its mantra-like counter-limits doctrine.

Nevertheless, even if usually barking dogs do not bite, it is the author’s opinion that the counter-limits doctrine should be, once and for all, abandoned and replaced by another issue: the introduction of a specific provision about the European Union into our national Constitution. The real challenge, today, is not who or what prevails over who or what.

The real challenge is to be able to create a workable and effective cooperative relationships ‘Verfassungsverbund’, replacing confrontation and fight for the last word with an ongoing, on mutual trust based dialogue between high Courts.

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