A clever and dangerous move – or: a Roman Court goes Lutheran

2 ½ years after it was rendered, Sentenza 238/14 of the Italian Constitutional Court remains an intriguing decision and continues to divide opinion.  Was this a heroic act in defence of fundamental values, or a foolish, pointless exercise in 'token resistance'? While the language is more guarded, many of the papers presented at a German-Italian […]

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After Sentenza 238: A Plea for Legal Peace

1. INTRODUCTORY REMARKS This post summarizes some of the key points of my presentation at the upcoming Villa Vigoni conference organized by the Max Planck Institute and its partners around the theme ‘Remedies against Immunity? Reconciling International and Domestic Law after the Italian Constitutional Court’s Sentenza 238/2014’. There are no easy answers to the questions […]

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Judgment 238/2014 and the importance of a constructive dialogue

I will focus here on two facets of Judgment 238/2014 and its legal implications. In the first part, I will shed some light on certain drawbacks of the application of the counter-limits doctrine in the relationship between the Italian Constitutional Court and the International Court of Justice (ICJ). Some of these criticisms show that the […]

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Italian Concerns after Sentenza 238/2014

Judicial practice may be a means to overcome the opposition of the State executive to legal development since judicial reliance on customary international law allows for the State’s explicit consent to become less important. At least in democratic constitutional States court networks may, in horizontal dialogues, expedite the development of customary international law even against […]

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Italian concerns after sentenza 238/2014: possible reactions, possible solutions

Introduction 1. International legal thinking has long been dominated by the perception of the State as a unitary subject. Yet, the “need to look behind the monolithic face of the State”1)I borrowed this expression from R. Higgins, ‘The Concept of “The State”: Variable Geometry and Dualist Perceptions’, in L. Boisson de Chazournes and V. Gowlland-Debbas […]

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German concerns after Sentenza 238/2014: Possible reactions – possible solutions

Jurisdictional Immunities, or: A Formally Strong German Position On the international plane, Germany has as strong a position as one could wish for. In its 2012 Jurisdictional Immunities judgment, the ICJ in unambiguous terms found Italy responsible for a threefold violation of the customary principles of state immunity: by allowing civil claims against Germany in […]

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Introduction: In search for conciliation

Sentenza 238/2014 of the Italian Constitutional Court created a legal and political deadlock between Italy and Germany. In denying Germany’s immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II, the Italian Constitutional Court indirectly challenged the International Court of Justice’s (ICJ) judgment of 2012, which had confirmed the […]

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How Could the ECJ Escape from the Taricco Quagmire?

The Taricco saga shows how difficult has become the coexistence between the doctrines that have been developed so far by the ECJ on one side and the national Constitutional or Supreme Courts on the other side. The ECJ and the Constitutional Courts, in all their isolated splendour (or splendid isolation), preferred so far to follow parallel lines, whose meeting could only take place ad infinitum. However, if the parallelism collapses, the two lines are doomed to crash.

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The Italian Constitutional Court in re Taricco: “Gauweiler in the Roman Campagna”

The Italian Constitutional Court’s Tarrico judgement is worded in apparently much milder terms than the BVerfG’s preliminary reference in Gauweiler. The content of the ICC’s decision, though, seems loaded with much more dynamite. In Gauweiler, the CJEU was called to interpret an act of another EU institution. In Taricco, the CJEU is called to reinterpret its own decision, after the ICC essentially asked “please, say it again?”

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Stable Majorities in Italy: an Interview with FRANCESCO CLEMENTI

Last week, the Italian Constitutional Court has declared the electoral law reform constitutional in most respects. Francesco Clementi explains why it will still be extremely difficult to form stable majorities in both chambers of Parliament.

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