Nel presente lavoro il rapporto tra Corte di giustizia e Corti costituzionali nazionali è analizzato alla luce del paradigma del diritto (internazionale) collaborativo. Tale analisi, che conforta l’ipotesi dell’autocostituzione dell’ordinamento giuridico interindividuale dell’UE nello spazio lasciato libero dal ritrarsi degli ordinamenti giuridici degli Stati membri, è condotta tenendo a mente la perdurante dimensione (anche) internazionale del diritto UE. In tale contesto si possono apprezzare, in primis, il cambiamento di approccio della giurisprudenza della Corte di giustizia relativa ai tratti strutturali fondamentali dell’ordinamento giuridico UE nei suoi rapporti con gli ordinamenti degli Stati membri. Se all’origine era caratterizzata da un’attitudine prevalentemente assertiva ed intransigente, quella giurisprudenza si è via via orientata ad un tratto pienamente collaborativo tanto nei meccanismi, in particolare in una certa concezione del rinvio pregiudiziale, quanto nella sostanza, attraverso il sostanziale riconoscimento della pluralità di sistemi giuridici e giurisdizionali che concorrono a garantire effettività dell’ordinamento interindividuale comune. In secondo luogo, si valuta il percorso, altrettanto profondamente trasfigurato rispetto alle sue origini, della giurisprudenza costituzionale italiana, caratterizzata da un primo passaggio da scontro a collaborazione, e da un successivo graduale avvicinamento ad una collaborazione diretta. Si valutano tuttavia criticamente gli ultimi sviluppi della giurisprudenza della Consulta, che mostrano una sopravvalutazione della clausola relativa all’identità costituzionale nel TUE, ferma la collaborazione procedurale. In terzo luogo, si analizza la tormentata parabola della giurisprudenza europea della Corte costituzionale federale tedesca. Pur sottolineandone i passaggi costruttivi di un modus vivendi con la Corte di giustizia, prima relativamente alla questione della tutela dei diritti fondamentali, poi relativamente alla questione del controllo ultra vires, si constata il carattere di fondo non collaborativo dell’approccio della Corte di Karlsruhe, basato su una valutazione statocentrica del processo di integrazione europea e su una sostanziale autoreferenzialità, che finisce per negare ad un tempo, l’essenziale carattere comune del diritto dell’integrazione europea e con esso il ruolo riconosciuto alla Corte di giustizia dai Trattati, e la stessa dimensione internazionale pattizia su cui si sorregge la costruzione europea, in un approccio di nazionalismo giuridico che assume, oramai, tratti teorici preoccupanti. In tutto questo, tuttavia, l’approccio di collaborazione procedurale sembra oramai acquisito anche nelle scelte di Karlsruhe. Anche grazie a tali finestre di collaborazione procedurale, lasciate aperte da entrambi i suoi interlocutori, si dispiega la sostanziale influenza pacificatrice della Corte di giustizia, capace di gestire le sfide che le vengono lanciate da una posizione di autorevolezza collaborativa. In conclusione, si constata come un approccio di diritto collaborativo possa avere, in questa materia, interessanti ricadute teoriche su un tema (politicamente caldo) quale quello della sovranità. In particolare, si cerca di mostrare come le scelte teoriche di fondo nel dibattito sulla natura della sovranità non siano affatto neutrali nel contesto dell’Unione e possano rinsaldare (o invece indebolire) il processo di autocostituzione dell’ordinamento interindividuale dell’Unione.

* This is a slightly abridged version of a study that will appear in Essays in Honour of Catherine Kessedjian, Ed. by S. CORNELOUP, forthcoming. I am grateful to Prof. Corneloup for the permission to publish it in this Review.

SOMMARIO:

Section I. Introduction: I. Collaborative Law. - II. The Structural Elements of the Relationship between EU and National Law: The Self-Establishment of an EU Supranational Interindividual Legal System between Confrontation and Collaboration - III. Outline of Further Analysis - Section II. The European Court of Justice: IV. On Direct Effect, Primacy and Collaborative Law: The Van Gend en Loos and Costa / ENEL Judgments Reconsidered. - V. From Simmenthal to Melki and Abdeli, from Confrontation to Collaboration. - VI. The Preliminary Ruling Procedure as a Collaborative Law Tool. - VII. (continues): National Courts as Structural Elements of a Collaborative Law Network. - VIII. From Taricco to M.A.S. and M.B.: To Collaborate or not to Collaborate? - Section III. The Corte costituzionale: IX. The Corte costituzionale: An Early Switching from Confrontation to Collaboration. - X. Indirect v. Direct Dialogue: A Collaborative Law Alternative. - XI. The Risks of a Structural Failure in Collaboration: The M.A.S. and M.B. case. - XII. Is There a Way Out? Procedural Collaborative Elements in Taricco and M.A.S and M.B. - Section IV. The Bundesverfassungsgericht: XIII. The Solange Human Rights Case Law: From Bilateral Confrontation to Bilateral Dialogue. - XIV. … Or Not? The Difficult Road from Solange-II through the 2000 Banana Judgment. - XV. The ultra vires Case Law: Swinging thorough Collaboration and Confrontation. - XVI. Ultra vires Scrutiny by National Courts as a Non-Collaborative Approach: A Critique in Five Points. - XVII. i) Disregard of ECJ Competences. - XVIII. ii) Subjects, Not Masters – Disregard of the Interindividual Character of the EU Legal System. - XIX. iii) Disregard of the Nature of the Founding Treaties as Special International Law. - XX. iv) Disregard of Sister States’ and Sister Courts’ Positions and Equality. - XXI. v) The problem with the exercise of a unilateral ultra vires scrutiny by constitutional courts, as claimed by the Bundesverfassungsgericht, though, is more radical: the Master/Servant ideology it clearly puts at the basis of its Maastricht and Lisbon rulings [178] is essentially based on an old-fashioned Hegelian conception of international commitments as essentially non-binding, and on a voluntarist characterization of international (and European) law as being just the external reflection of internal public law unilateral decisions (äusseres Staatsrecht) [179], following early 20th century Jellineck’s Allgemeine Staatslehre [180]. Moreover, if one may accept, from an ethical point of view, that the possibility of a last resort defence could block the opening of a State’s legal system towards an external source of law – be it international or European – to protect really fundamental human rights against a complete and total forfeiture, the problem with an ultra vires unilateral assessment lies with the fact that it is essentially based on a nationalist preference for State (German) democratic procedures and institutions over the common ones. The accent is, essentially, on the preference for the Kulturnation, as becomes clear with the Lisbon decision [181]. - XXII. The Kulturnation Approach and Cultural Unilateralism in the Identity Scrutiny: The Graveyard of Collaboration. - Section V. Conclusions: XXIII. The ECJ/Constitutional Courts relationship between Collaboration and Confrontation. - XXIV. Some Final Remarks on Collaborative Coexistence of Sovereignties. -

Section I. Introduction: I. Collaborative Law.

I. It is not an easy task to talk of the relationship between the ECJ and the national Constitutional courts by using a collaborative law paradigm [2], as a tool to better understand today’s international and European law. In approaching such a challenge, I of course accept Kessedjian’s characterization of collaborative international law. Thus, moving along the lines dictated by her, but changing the order to address them to fit better into my scheme, I can sketch the following empirical identifiers of a collaborative law approach to international and European law: a pattern of cooperation between courts [3]; the acceptance of a necessary coexistence of legal systems [4], involving the refusal of a competition of systems approach, and a structural phenomenon of complementarity of relevant sources [5]; a significant role of the cultural element in creating rules and individual legal solutions, but also in possibly determining obstacles and limits to their recognition and circulation [6].

II. The Structural Elements of the Relationship between EU and National Law: The Self-Establishment of an EU Supranational Interindividual Legal System between Confrontation and Collaboration

II. Applying a collaborative law paradigm within the present framework of analysis appears daunting, because the relationship between the ECJ and the national Constitutional courts involves fundamental doctrines of EU law as developed by the ECJ, on the one side, and equally fundamental doctrines elaborated in some member States’ national constitutional settings, on the other. Accordingly, harshly confrontational tones have been used on both sides to deal with a number of issues. On the ECJ side, I am referring first of all to the bold assertion of primacy of EU law over member States laws, and to the development of an «autonomous» doctrine of direct effect of Treaty provisions, and its extension to directives. Moreover, I’m referring to the more recent extension of that doctrine to the general principles of EU law, as well as to the imposition of effectiveness as a limit to member States’ procedural autonomy. On the constitutional and supreme courts’ side, one could mention the issues of human rights protection in the EU, the fate of the member States’ constitutional identities, as well as the Kompetenz-Kompetenz question as it emerges through the ultra vires control, all involving some degree of confrontation. Nonetheless, on closer inspection, a collaborative law approach might well prove to be a useful tool to understand the incredibly complex phenomenon that eventually led – thanks to the interaction between the ECJ and the national judiciaries – to the effective creation of the EU interindividual legal system, and also to grasp its actual main features. Within this framework, even significant tensions like the ones referred to above can be observed in a different light. As I tried to show elsewhere [7], the process which I proposed to qualify as the self-establishment (autoconstitution) of the EU interindividual legal system was certainly driven by the ECJ “plan”, and by the sometimes audacious assertions developed in its foundational jurisprudence, as well as by later developments thereof. Nonetheless, the objectives thus enunciated by the ECJ were only achieved due to the positive attitude eventually taken by the member States’ legal systems, in an overall balance. To put it differently, it was the effective retraction of member States’ sovereign powers that left the floor open to the direct exercise of a power of government over [continua ..]

III. Outline of Further Analysis

III. As already said, the establishment of the new EC/EU legal system was, in its essence, a coordinated process, in which ECJ and national courts worked in a coherent way [10]. Was it however – and is it now – the expression of a collaborative law attitude? To answer this question, I will first try to use some of the empirical identifiers mentioned above to give an assessment of the ECJ case law upon which the structural features of the EU legal system are based, and of the preliminary ruling system itself. Then, I will go on to comment, under the same perspective, the practice of the Italian Corte costituzionale relevant to the definition of the relationship between EU and national legal systems. Finally, I will address the corresponding practice of the German Bundesverfassungsgericht. The choice of these two ECJ counterparts is of course very limited, as a comprehensive assessment should include most, if not all, member States’ supreme or constitutional courts. Nonetheless, the choice is not arbitrary, as it helps to show the analogies and differences in the dynamics of a long-term structured dialogue between the ECJ and two of its most demanding counterparts. Further, among the founding member States only Italy and Germany had, from the outset, constitutional courts set up as specialized and authoritative guardians of their respective constitutions. Those courts were therefore the unavoidable partners the ECJ had to deal with from the very beginning in a dialogue that would eventually lead to the effective establishment of the new legal order. In my contribution I will not address the actual choices of the ECJ and national constitutional courts concerning the content of a human rights regime. Nonetheless, it is worth stressing that a collaborative law perspective might well be an interesting lens through which that subject can be looked into. The cultural element is indeed at the core of some fundamental rights choices linked to the individual’s identity, including religious and sexual orientation – just to mention two highly sensitive areas. The inherent tension between unity and diversity might thus become particularly visible and problematic [11] and require a collaborative law approach to avoid dangerous clashes.

Section II. The European Court of Justice: IV. On Direct Effect, Primacy and Collaborative Law: The Van Gend en Loos and Costa / ENEL Judgments Reconsidered.

IV. The ECJ practice relevant to the present study is made up first of all of the threegrands arrêts of the 1960s and 1970s, van Gend en Loos, Costa/Enel, and Simmenthal: three judgments that it would be quite counterintuitive to define as collaborative. Starting with van Gend en Loos, what really matters in this analysis is the deliberate decision by the ECJ not to rely on national systems. Essentially, the Court did not recognize that, under the culturally differentiated approaches of the then six member States, direct effect was in any case reachable [12]. The reason why the ECJ clearly refused to bow before cultural (legal) diversity was that it felt the need to establish autonomous legal foundations upon which it would start building the new interindividual legal system of the EEC, as it clearly appears from the statement of reasons upon which that judgment is based [13]. Here, insisting on the existence of a new legal system was in fact the essential advancement of the Court case law, and building it on its autonomous character was certainly the easiest and clearest way to follow. In this sense, we could well agree with Pescatore that direct effect was an infant disease of Community law [14]. However, that early dose of autonomy vaccination had no immunization effect. Autonomy of the new legal system will later become not only one of its essential structural features, but also a leitmotiv in the ECJ case law [15], to such a degree that it has now almost become a problem for the EU [16], making any collaborative approach on the ECHR accession question a Fata Morgana. Continuing with the foundational jurisprudence of the 1960s, the bold assertion of primacy the ECJ made in Costa/ENEL [17] was not an example of collaborative law either, and it could hardly have been otherwise. On its general terms, in fact, primacy appears to be at odds with the idea of coexistence of legal systems, and it rather seems to imply a hierarchical relationship inside a single legal system [18]. However, just concluding that the ECJ approach was not collaborative in the two foundational judgments recalled here would miss the point. At that moment of the historical evolution of the EEC legal system, a collaborative law approach by the ECJ would not have been realistic. To put it another way, a collaborative law approach would have needed, as a precondition, a [continua ..]

V. From Simmenthal to Melki and Abdeli, from Confrontation to Collaboration.

V. Within a collaborative law perspective, much more problematic than Van Gend en Loos and Costa is the 1978 Simmenthaljudgment [22]. At that time, in fact, it was no longer a question of gaining recognition for the new legal system as having an interindividual character, nor of gaining respect for the ECJ as its keeper in the dialogue with national legal systems and constitutional courts. In what was a clearly confrontational attitude towards the Italian Corte costituzionale, the ECJ rejected the impressive rethinking of the former’s case law concerning the then EEC legal system, which had led the Corte costituzionale to fully accept the pre-eminence of EEC law in its 1975 ICIC decision [23]. The solution embraced by the Corte costituzionale was of course inscribed in the Italian constitutional structure. In post WW2 democratic Italy, that structure was based, for important historical, political and legal (in a word: cultural) reasons, on a centralized control of constitutionality, which is essentially activated by common courts via a preliminary ruling procedure. Not considering this and simply wiping that system off on the assumption that an internal preliminary ruling procedure would exclude direct applicability of EC law was an unnecessary confrontational move: should the Simmenthal approach hold true, then even Art. 267 TEU compulsory preliminary ruling would, as such, exclude direct applicability! Moreover, the Simmenthal approach was essentially flawed, and non-collaborative, also in that it failed to recognize the jurisdictional role played by the Corte costituzionale in its preliminary ruling function [24]; as a consequence, it contributed to eloign direct collaboration between the latter and the ECJ for a long time. The unnecessary character of the Simmenthal rule was later proven by the same ECJ in its 2010 judgment in the Melki and Abdeli case [25]. According to the new jurisprudence, a prior obligatory preliminary procedure for the control of constitutionality is compatible with the features of EU law, and also of its system of judicial control, provided that some procedural safeguards are respected. Melki and Abdeli marks therefore a fundamental change in case law, although the ECJ does not openly admit its revirement [26] – and this is not a laudable [continua ..]

VI. The Preliminary Ruling Procedure as a Collaborative Law Tool.

VI. Assuming now a somehow wider perspective, it is here submitted that a collaborative element has always been there throughout the process that led to a retraction of member States’ spheres of sovereignty, and to the corresponding expansion of EU law as an interindividual legal system. That process, in fact, was only possible thanks to the structural cooperation between national courts and the ECJ established by what is now Art. 267 TFEU. Essentially, the whole ECJ jurisprudence defining the structural features of the new legal system is the result of a direct dialogue with national courts: a superior court in Van Gend en Loos, a first instance one in Costa/ENEL, as well as in Simmenthal, a supreme court in Melki and Abdeli, just to mention some of the judgments I address in this essay. Since the beginning of that process the ECJ had relied upon the collaboration of member States’ ordinary courts of law. Only at a later stage did the collaborative attitude structurally inherent in the preliminary ruling mechanism finally involve also the Constitutional Courts [27], including the Italian Corte costituzionale [28] and the German Bundesverfassungsgericht [29]. In this regard, I cannot really agree with the position of Catherine Kessedjian and exclude the preliminary ruling procedure from the category of courts cooperation, due to its vertical character [30]. There is certainly a risk of inequality in the preliminary ruling procedure [31]; however, just focusing on that risk overlooks that Art. 267 is essentially based on the equal dignity of its two sides [32]. This emerges from a number of its essential features, as they ensue from the ECJ practice. The preponderantly cooperative character of the preliminary ruling mechanism is first of all manifest in the ECJ abstaining, save in exceptional cases [33], from checking the relevance of the questions referred to it; and that, from the very foundational Costa/ENEL case [34]. Second, that character also appears where the ECJ excludes taking any stance on the correctness of the interpretation of national law, upon which the referring court bases its question, even when it comes to assessing the possible existence of a contrast between EU and national law. This is a steady line of case law [35] and is particularly striking as it often refers to objections directly raised by the member State whose [continua ..]

VII. (continues): National Courts as Structural Elements of a Collaborative Law Network.

VII. Further, the preliminary ruling mechanism empowers not only the ECJ, but also national courts, and elevates the latter to the status of EU common courts. This element appears clearly from the very beginning of the ECJ’s foundational case law, remains still for a long time, just like a watermark theme, and is later developed into a silver thread, an essential structural element of the whole integration process [53]. Correspondingly, national courts are endowed with a decisive role also in the interpretation of EU law – and with it in the solution of questions of compatibility of national law with EU law. In fact, preliminary ruling remains just an option for common courts of the member States as long as they are not courts of last instance. This means that even the interpretation of EU law, and not just its application, remains well inside the national courts’ competences. And that is true even when it could lead to disapplying national law [54]. This helps to understand why, when a reference is made, it triggers an essentially cooperative mechanism. Now, the qualification of common national courts as common courts of the EU legal system is not just helpful in understanding the success of the preliminary ruling procedure, and with it the effectiveness of the EU interindividual legal order. If one looks at it closely enough, the structure of this hybrid jurisdictional system shows some clear ingredients of a collaborative law approach. In building a system where its main competence rests upon a network of national courts, the Court of justice accepts the necessary coexistence of EU and national procedural systems in the pursuit of a unitary goal: the judicial protection of individual rights. Sharing the responsibility for the pursuit of that common goal necessarily involves accepting the structural complementarity of sources of law and respecting cultural (legal) diversity: national judicial protection systems, with their procedural autonomy, coexist with the EU system and reinforce it. Vice versa the ECJ collaboration, as enshrined in the preliminary ruling procedure, helps to reinforce the national courts in their judicial protection tasks and is, as such, utterly cooperative.

VIII. From Taricco to M.A.S. and M.B.: To Collaborate or not to Collaborate?

VIII. We have come to mention the role of procedural autonomy, as necessarily implied in the division of tasks between ECJ and national courts set by Art. 267 TFEU, in characterizing that cooperation process as collaborative. Of course, one has to recognize that procedural autonomy is just a principle, which finds its limits in the well-known principles of assimilation (non-discrimination) and effectiveness of the judicial protection [55]. Admittedly, when those limits operate, the EU legal system takes precedence over national peculiarities. Still, also at that point, collaborative law might find its way even through the most assertive ECJ case law. The 2015 judgment rendered by the ECJ in the Taricco case is an example of leaving the way open to a collaborative approach even in such a conflictual situation: although in principle requiring the national judge to disapply the relevant limitation rules applicable to a criminal law case, at the same time the ECJ leaves the way open to a different outcome, based on the national court assessment of the accused person’s fundamental rights [56]. This move by the ECJ is best explained by the assumption of a coexistence [57] and complementarity of sources [58] as necessary corollaries to the duty of respecting national constitutional identities, and can only be realized through a real cooperation between courts. That’s the way in which the Corte costituzionale has interpreted the Taricco judgment [59], and that’s precisely the de-escalation element the ECJ relied on in its highly collaborative M.A.S and M.B. judgment of 5 December 2017 [60]. In that judgment, as we will see further [61], the ECJ did not expressly reply to the constitutional identity argument raised by the Corte costituzionale. However, it clearly rewarded the (procedurally) cooperative attitude of the latter, with a substantially collaborative answer to the main question raised by its counterpart. In fact, it was able to show respect for the Italian constitutional diversity, but was at the same time able to wisely channel its solution within the common constitutional framework, and inside its own sphere of review.

Section III. The Corte costituzionale: IX. The Corte costituzionale: An Early Switching from Confrontation to Collaboration.

IX. As is well-known, the approach of the Corte costituzionale was not collaborative at all at the beginning. Its Costa/Enel judgment of 1964, in fact, was first of all a blind approach to the issue of conflict between the Treaty of Rome obligations and a subsequent law enacted by the Italian Parliament. Such an approach disregarded the most promising doctrines of Italian international law authorities on the presumption of conformity of internal law to international obligations, and on the lex specialis approach that would avoid such conflicts [62]. It was also unnecessarily confrontational: had the Corte referred a question for preliminary ruling on the substantive issue at stake, or had it just waited for the answer to the question the giudice conciliatore had in fact already submitted to the ECJ, it would have avoided any conflict and, therefore, any need to take a stance on primacy. From that point on, however, the approach of the Corte costituzionale changed and was constantly oriented towards a collaborative law dimension in its dialogue with the Court of justice. To appreciate that, one might single out two lines of jurisprudence. The first line of jurisprudence shows us the change in the three movimenti of a concerto on pre-eminence played by the Italian constitutional court from the 1964 Costa/ENEL confrontational largo sforzato, to the 1984 Granital collaborative finale in contrappunto, through the 1975 ICIC already collaborative intermezzo allegretto: all pieces played, as a matter of course, in a dualist tonality. The second line of jurisprudence deals with another decisive issue: namely, that of fundamental rights protection, and here the collaborative approach is always present, even if, admittedly, in a dualist tonality, too. As to pre-eminence (and not primacy, at least in the Corte costituzionale dualist approach), we already know the (dis)harmony played in the “primo movimento” in Costa/ENEL: a largo, as it slowed down any perspective of concurring in the early and effective establishment of the new legal system, and sforzato, as it was performed by the Corte with a particular emphasis. The change was sharp in ICIC, where pre-eminence was indeed guaranteed inside the judicial proceedings pending before the referring court, [continua ..]

X. Indirect v. Direct Dialogue: A Collaborative Law Alternative.

X. Even the (later abandoned) [73] refusal by the Corte costituzionale to consider itself a «court or tribunal of a member State» entitled to refer a question for preliminary ruling to the ECJ might be seen as part of a collaborative law approach, at least when it comes to the former’s indirect competence of constitutionality review. The Corte costituzionale developed what was called a «doppia pregiudizialità» approach: in the absence of a guiding precedent by the ECJ, before any preliminary question concerning the breach of the Italian Constitution by an Italian legislative act supposedly conflicting with EC law could be referred to the Corte costituzionale, a preliminary ruling had to be referred to the ECJ by the national referring court [74]. It is here submitted that such an approach fully respected the ECJ role and its direct relationship with the common courts directly dealing with the case. In particular, I cannot share a criticism that has been voiced against this solution, arguing that it unduly transformed into an obligation the power to submit a reference, which Art. 267 TFEU gives to courts other than last instance courts [75]. In fact, the referring court was always free to decide the question of EU law interpretation on its own, without necessarily referring it to the ECJ, as long as it was able to interpret national applicable rules in line with the applicable EU law provision. If the national judge deemed it impossible to reach such a result, asking him/her to have first of all recourse to the ECJ helped reach two positive targets. On the one side, it facilitated the direct dialogue between national and EU courts. On the other, should the question be about the possible violation of human rights, it reinforced the practicability of an interprétation conforme solution [76], and helped at the same time to strengthen the actual position of the ECJ as a fundamental rights court. The new Corte costituzionale case law, according to which it accepts directly referring a request for preliminary ruling to the ECJ in cases where the question of interpretation of EU law originates from the latter’s interaction with Italian Constitutional law (since 2008 for direct constitutionality actions [77], since order 207 of 2013 for cases of indirect constitutionality review), is a further effective step in the collaborative [continua ..]

XI. The Risks of a Structural Failure in Collaboration: The M.A.S. and M.B. case.

XI. The new approach contains in itself some structural features that make a collaborative law approach more likely. This does not exclude, however, that confrontation might arise on the substantive level for what appears to be essentially a direct challenge of the ECJ’s approach on Art. 53 of the Charter. A clear example of this strange combination of procedural collaboration and structural substantial confrontation is the Corte costituzionale’s order n. 24 of 2017 in the M.A.S. and M.B. case, directly questioning compatibility with the Italian constitutional identity of the Taricco judgment of the ECJ [79]. With this order, the Corte costituzionale prepares the terrain for a possible first-time application of its controlimiti doctrine in an EU case, by pointing at two apparently essential issues: namely, the scope of the legality principle in criminal law and the role of the criminal judge in a legal system. If we take a closer look, however, the approach followed by the Corte costituzionale appears to be extremely disappointing, and structurally non-collaborative. First of all, concerning the guarantee of non-retroactivity in criminal matters, the Corte costituzionale resorts to the controlimiti doctrine in a case that does not involve the complete forfeiture of any form of protection of the most fundamental human rights, as appeared to be its focus when it had been formulated in Frontini and confirmed in Granital [80]. Instead, it goes to the barricades to defend an Italian constitutional oddity on the substantive nature of the statute of limitation [81], notwithstanding the fact that the common EU standard and the ECHR go hand in hand in the opposite direction. Second, the Corte costituzionale does not consider that the ECJ Taricco judgment already contained a balancing exercise, thus taking into account the peculiar Italian approach. Indeed, the Taricco judgment itself, and more clearly the Opinion of the Advocate General in that case [82], stressed that the privileged statute of limitation bar to criminal action could only be disapplied if the relevant time-limit had yet to expire [83], following the general case law of the ECJ [84] and the ECtHR case law on statute of limitation extension [85]. Effectiveness of sanction, therefore, would not have precedence [continua ..]

XII. Is There a Way Out? Procedural Collaborative Elements in Taricco and M.A.S and M.B.

XII. What is equally important to stress, though, is that the M.A.S and M.B. order for reference left a path open to proceduralcollaboration, on which the ECJ could rely in its judgment of 5 December 2017 [96]. Indeed, the Corte costituzionale made it possible for the ECJ (and for itself) to embrace a collaborative law approach, by building on the role the ECJ itself left to national courts in its Taricco judgment, to protect in any case the fundamental rights of the accused person [97], thereby de-escalating the constitutional identity/controlimiti issue. It is worth stressing that the Corte costituzionale does so without criticizing the ECJ for the result reached in Taricco, which might allegedly collide with the Italian constitutional identity. In fact, it stresses that in the post-Lisbon system the way in which national constitutional identities are to be preserved is one that necessarily involves a complex participation of national courts and the ECJ [98]. According to such an approach, the first step is the request for a preliminary ruling by the ECJ on the interpretation of EU law, to be proposed by the ordinary court of law dealing with a possible infringement of fundamental rights as a consequence of EU law application. At this stage, it will be for the ECJ to check, on general terms and with reference to the common legal framework applicable in this matter – the EU Charter and the general principles, taking into account the ECHR – the compatibility of the relevant EU law provisions with the fundamental rights of the individual. In a second step, if the national judge fears and the Corte costituzionale confirms that the application of EU law, as it appears to be mandated by the ECJ, would be at odds with some fundamental principles in the field of human rights, whose forfeiture would destroy the constitutional identity of Italy, it should then be up to the Corte costituzionale to refer the question to the ECJ, to let it reassess its previous ruling in light of the constitutional identity issue, leading thus to a sort of inverted certification procedure – before considering any «unilateral measure» for preserving it [99]. Reference is made here to the US certification procedure, whereby US federal courts can submit a reference to national courts to clear legal issues of state law. Here of course the [continua ..]

Section IV. The Bundesverfassungsgericht: XIII. The Solange Human Rights Case Law: From Bilateral Confrontation to Bilateral Dialogue.

XIII. A look at the Bundesverfassungsgericht approach to the European issues shows that its case law is even less cooperative than that of the Corte costituzionale under various viewpoints. In this drama in several acts, the scene opens in 1974 with the Solange-I confrontational approach over the protection of fundamental rights [112]. The Bundesverfassungsgericht approaches the ECJ in an utterly non-collaborative way by not recognizing the good will that its direct counterpart has shown in dealing with the human rights issue since Stauder [113], and then in the very same case that led to the Solange-I judgment. As is very well known, in that case the ECJ took a quite nuanced, but positive stance with its Internationale Handelsgesellschaft judgment where, despite rejecting the possibility of a human rights control based on a specific national constitution, because of the autonomous and unitary character of EEC law [114], it confirmed its power to give «analogous guarantee[s]» to the fundamental rights, based on the general principles of EEC law, as inspired by the common constitutional traditions of the member States. A couple of weeks before the Solange-I decision, moreover, the ECJ had issued its Nold judgment [115], where its commitment to take into consideration the international human rights regime was also stated, with a clear although not express reference to the ECHR. As a direct reply to the first judgment, and an indirect one to the second, the Solange-I decision just slammed the door in the face of the ECJ, both on substantial and on procedural issues: no dialogue (even defiant) took place. Moreover, the Bundesverfassungsgericht’s Solange-I decision disregarded at the same time the developments of the Italian Corte costituzionale case law on that very same issue – a jurisprudence of a sister constitutional court which had been set on a collaborative track since 1965, and had been further refined since 1973. There was, indeed, no horizontal collaboration either [116]. This is quite striking, as the Bundesverfassungsgericht and the Corte costituzionale were, at that time, the only member States’ specialized constitutional jurisdictions, operating within a comparable institutional framework. As we know, the Bundesverfassungsgericht eventually [continua ..]

XIV. … Or Not? The Difficult Road from Solange-II through the 2000 Banana Judgment.

XIV. Solange-II was essentially confirmed in subsequent case law directly addressing the issue of fundamental human rights protection, and particularly by the relevant part of the 1993 Maastricht decision. That Maastricht did not intend to modify the Solange-II approach was made quite clear by the authoritative interpretation of the previous case law contained in the 2000 Banana Market decision [124]: challenges based on the violation of human rights would (continue to) be declared inadmissible, if not clearly based on the assumption that the overall protection of human rights in the EU is no longer adequate, anticipating therefore what could be qualified retrospectively as a Bosphorus-like approach [125]. The Banana dispute shows however the risk of rupture in the more collaborative approach reached since Solange-II and consolidated in the same 2000 Banana judgment, at least when the human rights issue is mixed with the ultra vires one. The rupture of the system, feared by commentators [126] after a 1995 Bundesverfassungsgericht’s order [127] in that same dispute had disregarded the ECJ’s Germany v. Council [128] judgment on an implied ultra vires approach, was finally avoided. The clash thus provoked by Karlsruhe was dealt with wisely enough by the ECJ through its Atlanta [129] and especially T.Portjudgments [130], thanks to the collaborative attitude of German common courts. Only after the ECJ had endorsed in T.Port the need to envisage a temporary regime in the Banana Market implementing regulations, based on the need to preserve the fundamental right to property as protected by EU law, did the Bundesverfassungsgericht finally restore a collaborative attitude with its 2000 Banana judgment. The possible overlapping of the issues of fundamental rights and ultra vires control, and the confrontational approach somehow inherent in the ultra vires approach need to be carefully discussed. It is therefore time to turn to that thorny chapter of the relationship between the German courts and the ECJ.

XV. The ultra vires Case Law: Swinging thorough Collaboration and Confrontation.

XV. The Bundesverfassungsgericht’s approach to the ultra vires question shows an even more contrasted path. Here the plot starts with a collaborative avoidance of the issue by the 1987 Kloppenburg decision [131], develops in an aggressive stance in the 1993 Maastricht decision [132], and is later set into a more collaborative, but somehow fragile compromise solution marked by the 2010 Honeywell decision [133]. In Kloppenburg the Bundesverfassungsgericht reacted positively to the ECJ’s doctrine of vertical direct effect of directives, by excluding that it could be qualified as an ultra vires development of the ECJ case law, contrary to the assumption of the referring Bundesfinanzhof. Although recognizing that the Community competences were limited, the Bundesverfassungsgerichtfound that doctrine to be an adequate way to sanction the State for its non-compliance with a directive, thus furthering the rule of law. It further found that attributing to national judges such sanctioning powers constituted indeed law creation (Rechtsfortbildung) by the ECJ, but confirmed that in doing so the ECJ had remained well inside the limits of the powers attributed to the Community as a non-sovereign entity [134], and to the ECJ as the Community Court [135]. The Kloppenburgdecision accepted that the ECJ jurisdictional function could well entail law creation activities, while remaining coherent with a well-established, centuries old European legal tradition. The reference is to the common legal cultural roots in ancient Roman law, in the English common law, and in the continental droit commun, and to the confirmation of those roots by more recent developments in French and German administrative and labour law. In connection with Kloppenburg, one has to note that the choice by the Bundesverfassungsgericht not to affirm its power to review EU acts and ECJ decisions on the basis of an ultra vires approach was, per se, the expression of a truly collaborative law attitude. It implied, indeed, recognizing the coexistence of the two concurring legal systems (national and EU) as well as respecting the ECJ competence over Treaty interpretation and legality control of EU acts. The recognition of the commoncultural element building the basis of the coexisting national and supranational legal [continua ..]

XVI. Ultra vires Scrutiny by National Courts as a Non-Collaborative Approach: A Critique in Five Points.

XVI. An assessment of the ultra vires jurisprudence of the Bundesverfassungsgericht from the perspective of a collaborative law approach cannot be limited to the question of how such a control is carried out – as if it were a necessary step to deal with in the relationship between EU and national legal systems. The question is more radical than in relation to human rights, where the issue was, at the beginning, one of filling a gap in the Treaty system, and more recently one of determining the point of balance between two concurring systems whose scope is not clearly defined in the Treaties. Here, in fact, it is the very existence of a unilateral ultra vires scrutiny that is highly problematic. Considered under a collaborative law perspective, the Bundesverfassungsgericht essentially seems to be just concerned with its own legal system and fails to recognize its coexistence with the other legal systems involved. I will try to show how this failure materializes by addressing five points. First of all, a unilateral scrutiny over ultra vires EU acts including ECJ decisions fails to recognize the respective fields of competence of the various courts that should dialogue in this sphere. Second, such a unilateral scrutiny disregards the existence and features of the EU interindividual legal system, of which each member State individually considered is subject, not master, and fails to recognize the position of individuals in that system. Third, it fails to consider that EU law obligations, at the same time and in any case, actually stem from a special international law framework, the interpretation of which cannot be determined unilaterally by any contracting party. Fourth, it disregards the position of the vast majority of other member States (and other member States’ courts) by assuming an unwarranted superiority. Fifth and last, but not least, the fundamental assumption upon which the claim of the Bundesverfassungsgericht that it can exercise a unilateral ultra vires control is based, is in direct and major contradiction with any international collaborative law approach, as it rests on State unilateralism as its fundamental ideology and on an old-time Kulturnation approach.

XVII. i) Disregard of ECJ Competences.

XVII. i) The exercise of unilateral ultra vires scrutiny is first of all in direct contrast to the essential choice of the Treaty to endow a court common to all member States – the ECJ – with the role of final arbiter. Such a role is the necessary consequence of a series of coherent express Treaty provisions on the ECJ competences, which find their consolidation in the ECJ Foto-Frost [153] and Atlanta [154] case law. As to the express Treaty provisions, States can, first of all, directly attack the legality of any EU act by submitting to the ECJ an action for annulment. Moreover they can intervene in any such action raised by a third party, and even propose an independent appeal before the Court of Justice against a decision by the General Court rejecting an action for annulment initiated by a third party [155]. Even after the expiry of the time-limit to submit an action for annulment, member States can defend their position before the ECJ by invoking an alleged illegality of EU acts, and the consequent inapplicability of such acts [156]. The inapplicability defence can also be raised, if necessary, in the framework of an infringement procedure [157]. It is by having recourse to one of these numerous and sometimes privileged legal remedies that member States should challenge an ultra vires act of the EU. The exclusive nature of the task thus conferred on the ECJ is rendered manifest by the prohibition expressed by Art. 344 TFEU to submit any dispute «concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein» [158]. Should the member State’s executive branch not make use of the direct remedies contemplated by the Treaty, then any question of inapplicability of allegedly ultra vires EU acts producing effects on individual positions should be dealt with before national judges, by raising the validity question in a reference for preliminary ruling to the ECJ. At that stage, the executive branch could even step in with its observations before the Court [159]. Before the referring court, moreover, an urgent protection of individual rights could well lead to the concession of a provisional measure implying the temporary suspension of the application of the relevant EU act [160]. Here, however, the unilateral declaration of invalidity of the EU act by a member [continua ..]

XVIII. ii) Subjects, Not Masters – Disregard of the Interindividual Character of the EU Legal System.

XVIII. ii) Further, the Bundesverfassungsgericht grounds the power to conduct a unilateral ultra vires scrutiny in the assumption that member States remain Herren der Verträge [163], meaning not only that they can collectively decide to modify the Treaties and that each of them would retain the option of leaving the Union, but also that, according to Karlsruhe, each of them would be ultimately free to determine the scope of the powers it has conferred on the EU and on the ECJ. This last consideration leads us to a further, fundamental ground of criticism of unilateral ultra vires control over EU acts and ECJ judgments. The new legal system is one where the individual is a full subject of law, enjoying rights, liberties and powers as a consequence of the obligations and duties assumed by the States. This had been asserted by the ECJ since its Van Gend en Loosand Costa/Enel foundational judgments [164]; it was further reinforced by subsequent developments in the application of EU competences [165], but it was also essentially confirmed by the actual retraction of the member States’ legal systems before the EU interindividual legal system [166]. As a consequence, inside that legal system member States are just subjects to the law, bound to abide by it. In such a system, member States cannot free themselves of their obligations by invoking a superior, privileged position: inside that legal system, therefore, they just cannot act as masters of the Treaties. Thus, the Bundesverfassungsgericht’s contrary position does not only lead to a denial of the essential features of the EU legal system. If it were put into operation, such a unilateral ultra vires scrutiny might actually cause – in a Mangold-Honeywellconstellation – a violation of the individual rights directly provided by the common system of law. One could react to this conclusion by attacking the very foundational judgments of the ECJ as being ultra vires, or, as some said, as a judicial coup d’état [167]. However, any such attack would be groundless on its merits, as the development of such an interindividual legal system occurred well within the hermeneutical possibilities that the Treaty of Rome had opened up to the ECJ. Moreover, and more importantly in the current perspective, should such a criticism be [continua ..]

XIX. iii) Disregard of the Nature of the Founding Treaties as Special International Law.

XIX. iii) As to the third point, it is to be stressed that the primary level of EU law is a complex legal phenomenon which rests on the reciprocal respect of common international obligations assumed by its member States, and not on the transient concurrence of unilateral wills, each of which could only be measured against its internal (constitutional) law points of reference. Primary EU law is essentially made up of a series of (special) international law instruments [170], whose scope, thus, must be determined accordingly. As a consequence, the task of defining the scope of such obligations will be first of all for the common jurisdiction set up by the Treaties. As recalled above, it is in fact to the ECJ that all member States, acting through express Treaty provisions, granted the role of final arbiter on any disputes arising from the interpretation and application of the Treaties. One could not meaningfully rely on the general international law of the treaties to reach a contrary result [171]. Indeed, it is an established and fundamental principle of general international law that internal law cannot justify the breach of an international obligation [172]. It is true, further, that the internal practice developed in the application of a treaty might be relevant in its interpretation, but only if it «establishes the agreement of the parties regarding [the treaty’s] interpretation» [173]. In any case, resorting to any (unanimous) subsequent praxis of application by the member States will have to be confined to interpretations short of any modification. This is a necessary consequence of the “rigid” nature of the special international law system built on the Treaties of Rome, Maastricht and Lisbon, as it is now expressed in art. 48 TEU, and guaranteed by the ECJ.

XX. iv) Disregard of Sister States’ and Sister Courts’ Positions and Equality.

XX. iv) Now, despite the “infective” spreading of ultra vires dicta, or even actual inapplicability judgments, by some member States courts, the Bundesverfassungsgericht’s doctrine of unilateral ultra vires control is far from being unanimously accepted by other member States courts [174]. Its defence in the Bundesverfassungsgericht’s case law, therefore, is not to be explained as the fight of a bunch of noble Karlsruhe’s Knights defending the common member States’ interests against the Kirchberg tyrant: it is much more akin to the position of a political-judicial actor not willing to fully accept the limits on its jurisdiction following from the common system, not caring about the imbalance its attitude produces in the system [175], and not troubled by the actual damages its epigones in Prague [176] or Copenhagen [177] might then actually cause. Further, and quite essential in an analysis devoted to the collaborative law character of the highest level judicial dialogue in the EU, the Bundesverfassungsgericht’s claim to unilaterally define the scope of Germany’s obligation is essentially based on the assumption of a privileged position which is not warranted by the common system to any of its members. By assuming this unwarranted privilege, therefore, the German court not only disregards sister States’ and sister Courts’ overwhelmingly different positions but, more disturbingly, it disregards the fundamental value of member States’ equality, upon which the whole system is built.

XXI. v) The problem with the exercise of a unilateral ultra vires scrutiny by constitutional courts, as claimed by the Bundesverfassungsgericht, though, is more radical: the Master/Servant ideology it clearly puts at the basis of its Maastricht and Lisbon rulings [178] is essentially based on an old-fashioned Hegelian conception of international commitments as essentially non-binding, and on a voluntarist characterization of international (and European) law as being just the external reflection of internal public law unilateral decisions (äusseres Staatsrecht) [179], following early 20th century Jellineck’s Allgemeine Staatslehre [180]. Moreover, if one may accept, from an ethical point of view, that the possibility of a last resort defence could block the opening of a State’s legal system towards an external source of law – be it international or European – to protect really fundamental human rights against a complete and total forfeiture, the problem with an ultra vires unilateral assessment lies with the fact that it is essentially based on a nationalist preference for State (German) democratic procedures and institutions over the common ones. The accent is, essentially, on the preference for the Kulturnation, as becomes clear with the Lisbon decision [181].

XXI. v) The problem with the exercise of a unilateral ultra vires scrutiny by constitutional courts, as claimed by the Bundesverfassungsgericht, though, is more radical: the Master/Servant ideology it clearly puts at the basis of its Maastricht and Lisbon rulings [178] is essentially based on an old-fashioned Hegelian conception of international commitments as essentially non-binding, and on a voluntarist characterization of international (and European) law as being just the external reflection of internal public law unilateral decisions (äusseres Staatsrecht) [179], following early 20th century Jellineck’s Allgemeine Staatslehre [180]. Moreover, if one may accept, from an ethical point of view, that the possibility of a last resort defence could block the opening of a State’s legal system towards an external source of law – be it international or European – to protect really fundamental human rights against a complete and total forfeiture, the problem with an ultra vires unilateral assessment lies with the fact that it is essentially based on a nationalist preference for State (German) democratic procedures and institutions over the common ones. The accent is, essentially, on the preference for the Kulturnation, as becomes clear with the Lisbon decision [181].

XXII. The Kulturnation Approach and Cultural Unilateralism in the Identity Scrutiny: The Graveyard of Collaboration.

XXII. The last threat to collaboration in the EU court’s dialogue (or lack of it) is the emergence of a comprehensive constitutional identity scrutiny by the Bundesverfassungsgericht, melting the other two areas of scrutiny: ultra vires questions, under the heading of a violation of the democratic principle, and human rights questions, under the heading of the violation of the human dignity clause of the German Constitution. As already anticipated, I believe the very approach to defining the German constitutional identity to be non-collaborative, as it is essentially based on a Kulturnation approach. According to this approach, democracy would only be possible inside a “Volk” concept, whose definition necessarily includes a common language and culture, as a precondition to form a political decision based on the dialectic between a majority and an opposition according to the German parliamentary model. The use of such an approach characterizes the Bundesverfassunggericht’s Lisbon judgment [182], making the identity control a sort of graveyard of collaboration in a number of sectors where either the EU has direct specific competences, or its general competences can have significant effects [183]. By its approach, moreover, the Bundesverfassungsgericht essentially denies the democratic character of the European integration. It does so not only by wilfully disregarding the existence of other models of parliamentary democracy (like the consociational Swiss model), which would contradict the conclusions reached in Karlsruhe. What is even more dangerous, the Bundesverfassungsgericht does so by referring to an old-style nationalist approach which, if it had some merits at the time Pasquale Stanislao Mancini developed it, had already became a dangerous terrain under Carl Schmitt [184]. Of course, the Bundesverfassungsgericht uses it less openly and dresses it with the sociological clothes of the “public sphere” as a necessary dimension of modern States [185]. Still, it takes with it a clear message of closure and self-referentiality [186]. The same message is conveyed by the use of a culturally carved notion of human dignity in the exercise of identity control. Now, the human dignity clause might be an adequate tool when used in the internal constitutional dimension, as a hermeneutic tool to build limits on public [continua ..]

Section V. Conclusions: XXIII. The ECJ/Constitutional Courts relationship between Collaboration and Confrontation.

XXIII. Summing up, a review of the dialogue conducted by the ECJ and the Italian and German Constitutional courts on the relationship between the EU interindividual legal system and those of the member States along the lines of a collaborative law approach leads us to mixed conclusions. First, the existence of a structural phenomenon of complementarity of sources and legal systems – which is an essential consequence of the establishment of concurring systems of interindividual law over the same territories – is essentially recognized by both sides as an important feature of the overall relationship, in particular in the field of human rights protection. In this particular field it is to be stressed that the indirect dialogue through which the Constitutional courts “nudged” the ECJ to build its role as a guardian of fundamental rights in the EU allowed a collaborative attitude to emerge. And that is true not just because of the mere fact that there was a dialogue, and a constructive one, between judges, but also because the answer of the ECJ to the Constitutional courts’ request was based, as it is well known, on member States’ common constitutional traditions. In fact, the very concept of common constitutional traditions is inherently based on the recognition of the complementarity of sources [190]. Still, some frictions exist both in the definition of the scope of application of the EU human rights regime, with the correlate issue of the qualification of the common regime as a ceiling or as a base, and in the claim by both Constitutional Courts considered here that an emergency brake exists, exceptionally enabling them to have a say over the respect of fundamental human rights by the EU. Second, the preceding analysis has revealed that procedural collaboration has found an important place, at least in the direct dialogue between the ECJ and the constitutional courts. However, an indirect, horizontal dialogue between constitutional courts is not yet as mature as it could and probably should be. Third, the claim by a restricted number of constitutional courts, captained by the Bundesverfassungsgericht, that they should exercise ultra vires scrutiny over EU law and even over the ECJ, has been found to be at odds with any collaborative law approach. Procedurally collaborative attitude might help smooth the contrast, but a sorcerer’s apprentice effect cannot be excluded, and has indeed [continua ..]

XXIV. Some Final Remarks on Collaborative Coexistence of Sovereignties.

XXIV. The collaborative law perspective adopted in this essay makes it useful to go back now to one of its starting points. When approaching a collaborative law assessment of the dialogue between the ECJ and Constitutional Courts, in fact, I stressed how it could be better understood by considering the whole process which led to the self-establishment of a new interindividual legal system of the EC/EU, as one built on the effective establishment of supranational, direct powers of government over individuals, thanks to the convergence of the ECJ’s “claims”, on the one side, and the retraction of national sovereignties, on the other. Such a process, I maintain, determined the coexistence of different sovereignties on partially overlapping territories and populations. In suggesting that, I of course refer to sovereignty as an essentially factual concept, relevant in international law, and meant as equivalent to the enjoyment by the sovereign entity of actual prerogatives of independence (external dimension of sovereignty) and domestic jurisdiction (its internal dimension). Sovereign, in other words, is the entity subject to no other law than international law itself, and capable of exercising (normally exclusive) direct governmental control over individuals in a given territory [192]. The results of the present analysis show, in my view, how appropriate the reference to such a concept of sovereignty is, if one is to address in a collaborative way the risk of confrontation still present in the system. Let us start, however, with an assessment of the alternative concepts of sovereignty, and with their shortcomings. The approach followed in this study shows, first of all, how inappropriate and even counterproductive is the rather mainstream reference to an absolute concept of sovereignty, in its internal dimension, based on the theory of Jean Bodin, and meant to be equivalent to the absence of (external) limitations to power [193]. The traditional reading of Bodin’s concept – a profoundly outdated one, based as it was on the need to provide the absolute State with its legitimation to resist any imperial or religious claims to interfere – is at the basis of the widespread idea that, as international and EC/EU obligations have as their object rights and duties of individuals, they would amount to limitations of sovereignty [194]. Such an approach – which is followed also by prominent EU law scholars [continua ..]