Diritto dell'Unione europea e processo costituzionale (EU Law and the procedure before the Constitutional Court)

The paper illustrates the findings of the research financed under the Research Project of Relevant National Interest (PRIN) prot. n. 200832PPPJ, on the issue of “European integration through Procedural Law", which the author coordinated from 2012 as National and Local Unit Supervisor. In this perspective, the paper firstly underlines that the role of the Italian Constitutional Court has been increasingly restrained not only by EU rules having direct effects, but also by general principles to which the Court of Justice grants the same effects, as long as they justify «in any case» the disapplication of inconsistent national rules. Starting from this finding, the paper points out that the Constitutional Court gives nonetheless broad consideration to EU law issues and shows, in so doing, a remarkable opening towards «external» sources of law, as the constitutional judgment No. 80/2011 clearly confirms. In this view, the Court has recently suggested that the provisions of the EU Charter of Fundamental Rights could work as «special» parameters (“norme interposte”) for the purpose of constitutional review of legislation, in order to ensure an adequate level of protection to the rights thereby established. In the same view, the Court has also significantly rethought its relation with the European Court of Justice and it has referred to the ECJ both questions of interpretation and of validity of EU law, although so far only in the course of «principal» proceedings (i.e. proceedings started by the State or other «privileged» applicants) and not yet in the course of «incidental» proceedings (i.e. proceedings concerning questions raised by national courts), despite the unanimous opinion of legal scholarship. The Constitutional Court has finally asserted its capability to play a role within the European integration process by reserving its power (through the application of the so-called counter-limits theory) to review the Italian legislation implementing the European Treaties in the unlikely hypotheses of their contrast with the fundamental principles of the national constitutional order or with the fundamental rights of the individuals.