01 November 2024
Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU. Continue reading >>
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11 June 2024
Delegitimizing by Procrastinating
In countries where populist movements have garnered significant electoral support, their self-proclaimed role as the sole representatives of the true will of a unified people has led them to assert that their democratic legitimacy surpasses the technocratic authority of constitutional courts. The requirement of supermajorities in the election of Italy's constitutional judges has, in combination with a changed political landscape, led to political deadlocks, entailing the risk of jeopardizing the Court’s operability and partisanship-based appointments. Continue reading >>
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21 February 2022
Constitutional Identity in and on EU Terms
The EU protects national constitutional identities and does not protect national unconstitutional identities. This is the message the Court of Justice of the EU has sent with its decision of 16 of February 2022, in the cases initiated by Hungary and Poland about the rule-of-law conditionality mechanism, in which it ominously referred to the constitutional identity of the EU. Constitutional identity, according to the CJEU, is a key concept of public law and a fundamental pillar of the EU, so Member States constitutional identities may not be manipulated in such a way that turns into a violation of the constitutional identity of the EU. Continue reading >>
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26 September 2019
“Constitutional Paternalism” and the Inability to Legislate
On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter – which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution. Continue reading >>14 March 2018
Constitutional Rights First: The Italian Constitutional Court fine-tunes its “Europarechtsfreundlichkeit”
Only a few days after the Court of Justice of the European Union buried the hatchet in the so-called Taricco saga, the Italian Constitutional Court issued a decision that may inaugurate the most significant shift of its jurisprudence in European affairs since 1984, when the Constitutional Court fully accepted the principle of primacy of EU law and blessed the disapplication of national legislation incompatible with EU law. Continue reading >>31 January 2017
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?” Continue reading >>
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