1. interaction between EU law and Italian law: the evolution of the Court approach

1. Private and Public lawlesson 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-March 26, 2014-

2. INDEX1. interaction between EU law and Italian law: the evolution of the Court approach2. The new art. 117 of the Italian Constitution3. The impact of non self-executing norms (EU law) on Italian law4. The principle of supremacy of EU law5. Technical implementation of EU law into Italian law

3. 1. interaction between EU law and Italian law: the evolution of the Court approach

4. 1. Interaction between EU law and Italian law • _________________________________ 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

5. 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”

6. 1. The evolution of the Constitutional Court approach • _________________________________ 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

7. 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

8. 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

9. 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 requiredthe doctrine of “counter-limitations”: EU law may not impact on fundamental rights of individuals, according to each domestic Constitution

10. 1. SECOND STAGE • _________________________________ - The “IndustrieChimiche” 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

11. 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

12. 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

13. 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)

14. 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), 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

15. 2. The new art. 117 of the Italian Constitution

16. 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

17. 3. The impact of non self-executing norms (EU law) on Italian law

18. 3. Non self-executing norms of EU law • _________________________________ Self-executing normsthe judge must apply the EU norm and disregard the Italian conflicting norm (“third stage”)___________________________________________________________Non self-executing normsthe judge must submit the issue to the Constitutional Court

19. 4. The Treaty of Lisbon and the principle of supremacy of EU law

20. 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

21. 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?

22. 5. Technical implementation of EU law into Italian law

23. 5. EU law implementation mechanisms • _________________________________ Implementation may happen by means of:- an ordinary law (“leggecomunitaria”)- The Parliament delegates to Government to implement EU law- [Deregulation]- implementation by administrative decisions