Private and Public law
lesson 5
The impact of EU law on the domestic legal
system; implementation of EU law into
national legislations; Italy (and EU) external
relations and relevant legal basis
INDEX
1. interaction between EU law and Italian law: the
evolution of the Court approach
2. The new art. 117 of the Italian Constitution
3. The impact of non self-executing norms (EU law) on
Italian law
4. The principle of supremacy of EU law
5. Technical implementation of EU law into Italian law
1. interaction between EU law and
Italian law: the evolution of the
Court approach
1. Interaction between EU law and Italian law
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What is the ranking of EU law (within the Italian
system of sources)? Equal to ordinary laws,
constitutional laws, or other?
- “lex posterior derogat priori”
- what happens in case of conflict with a domestic
rule?
Need to identify a constitutional basis, justifying the
application of EU law in Italy
1. Interaction between EU law and Italian law
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Need to identify a constitutional basis, justifying
application of EU law in Italy
Art. 10, par. 1, of the Italian
Constitution: “Italy conforms to
commonly recognized
international law”
Art. 11 of the Italian Constitution:
“Italy consents, on a reciprocity
basis with other States, to
limitations to sovereignty for the
purpose of ensuring peace and
justice among Nations; it
promotes international
organizations devoted to that
purpose”
1. The evolution of the Constitutional Court approach
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FIRST STAGE
EU law has the same ranking as Italian ordinary
laws
SECOND STAGE
Italian law conflicting with EU law is constitutionally
illegitimate (art. 11)
THIRD STAGE
EU law is an autonomous and independent system,
as opposed to Italian law (art. 11 + law
implementing the EU Treaty): disregarding domestic
law
1. FIRST STAGE
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The “Costa vs. ENEL” decision:
- EU law has the same ranking as Italian ordinary
laws
- in case of conflict, a norm prevails over those
which were previously enacted
1. FIRST STAGE
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The “reaction” of the European Court of Justice
- The EU legal order is not “separate” from domestic legislations
- the principle of supremacy of EU law is irrespective of the
relevant implementation mechanisms
- domestic rules conflicting with EU law should be held as totally
ineffective
- EU law is assimilated to “ordre public” rules (mandatory
provisions of law), overriding domestic legislation
1. SECOND STAGE
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- The “Frontini” decision: Italian law conflicting with EU
law is constitutionally illegitimate (art. 11 of the Italian
Constitution: “Italy consents, on a reciprocity basis with
other States, to limitations to sovereignty for the purpose
of ensuring peace and justice among Nations; it promotes
international organizations devoted to that purpose”). An
intervention of the Constitutional Court is required
the doctrine of “counter-limitations”: EU law may
not impact on fundamental rights of individuals,
according to each domestic Constitution
1. SECOND STAGE
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- The “Industrie Chimiche” decision: the Italian judge
may not disregard the domestic rule of law. If ever, in
case of conflict with EU law, he/she may submit the
issue to the Constitutional Court
1. SECOND STAGE
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The “reaction” of the European Court of Justice
- The “Simmenthal” decision (the Italian judge must
disregard domestic rules conflicting with EU law, both
prior or subsequent to the EU norm, without the
need for any intervention of the Constitutional Court)
- The “Factortame” decision
1. THIRD STAGE
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The “Granital” decision:
- EU law and Italian law are autonomous and separate legal orders.
EU law regulates areas from which Italian law “voluntarily
withdraws”
- therefore, the Italian judge should apply EU law and
ignore/disregard the domestic rule conflicting with the EU
provisions – this is by virtue of Art. 11 of the Constitution + the
law implementing the EU Treaty in Italy
- counter-limitations
1. THIRD STAGE
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Other decisions of the Italian Constitutional Court:
- The Italian Government challenged a decision issued
by Umbria (Regional law) conflicting with EU law
(1994)
- The impact of EU law on the domestic
(constitutional) system regulating competences and
powers of the Regions and the central State (1996)
1. THIRD STAGE
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Other decisions of the European Court of Justice:
- The Italian judge might disregard Art. 2909 Civil Code (the Court
decisions bind all parties, their successor and assigns, as well as
any third party involved in the dispute), if that hampers full
application of EU law
- the national judge should interpret domestic law (including non
self-executing norms) in order to make it consistent with EU law
2. The new art. 117 of the Italian
Constitution
2. The new art. 117 of the Constitution
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Art. 117: “legislative power is exercised by the State and the Regions
within the limits (and in compliance with the obligations) set out by EU
law and by the international legal order”:
a parameter for the Italian legislative bodies
+
Art. 11 of the Italian Constitution: “Italy consents, on a reciprocity basis
with other States, to limitations to sovereignty for the purpose of
ensuring peace and justice among Nations; it promotes international
organizations devoted to that purpose”:
the legal basis for the obligation for Italy to conform to EU law
3. The impact of non self-executing
norms (EU law) on Italian law
3. Non self-executing norms of EU law
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Self-executing norms
the judge must apply the EU norm and disregard the Italian conflicting
norm (“third stage”)
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Non self-executing norms
the judge must submit the issue to the Constitutional Court
4. The Treaty of Lisbon and the
principle of supremacy of EU law
4. The Treaty of Lisbon and the principle of
supremacy of EU law
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The “supremacy clause”:
- the Treaty of Lisbon does not include it
- It is stated in the Declaration No. 17 attached to the Treaty of
Lisbon
- It is mentioned in several decisions of the European Court of
Justice decisions
- It is mentioned in several decisions of National Constitutional
Courts decisions
4. The Treaty of Lisbon and the principle of
supremacy of EU law
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The Principle of Supremacy is subject to the following:
- the principle of conferral being complied with
- who is competent to evaluate whether the EU
competences were correctly exercised?
5. Technical implementation of EU
law into Italian law
5. EU law implementation mechanisms
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Implementation may happen by means of:
- an ordinary law (“legge comunitaria”)
- The Parliament delegates to Government to implement EU law
- [Deregulation]
- implementation by administrative decisions