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

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?

1. Interaction between EU law and Italian law_________________________________

Need to identify a constitutional basis, justifying the application of EU law in Italy

1. Interaction between EU law and Italian law_________________________________

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_________________________________

FIRST STAGE EU law has the same ranking as Italian ordinary

laws

SECOND STAGEItalian law conflicting with EU law is constitutionally illegitimate (art. 11)

THIRD STAGEEU 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_________________________________

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_________________________________

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_________________________________

- 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_________________________________

- 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_________________________________

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_________________________________

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_________________________________

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_________________________________

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_________________________________

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_________________________________

Self-executing norms

the judge must apply the EU norm and disregard the Italian conflicting norm (“third stage”)

___________________________________________________________

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

_________________________________

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

_________________________________

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_________________________________

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