The EU Charter of Fundamental Rights in Constitutional Adjudication. The Italian Perspective

The purpose of this paper is to critically consider the impact of the Charter of Fundamental Rights of the European Union (CFR) within the Italian constitutional adjudication system. After briefly recalling the Italian Constitutional Court’s well-established jurisprudence on the relationship between domestic and European Union law’s main features (Sect. 3), the most recent approaches developed by the Italian Constitutional Court (ICC) with reference to the Charter of Fundamental Rights will be highlighted, taking into account the substantially constitutional nature of the EU Charter of Fundamental Rights and the large overlap of its guarantees with those provided for in the Constitution of the Italian Republic (Sects. 2, 5, 5.1, 5.2). The tricky question of the relationship between the two charters has led to a rethinking of the link between the Italian Constitutional Court, the European Court of Justice (ECJ) and the ordinary court. In this regard, the ICC deemed it necessary to make a ‘clarification’ on the so-called ‘dual preliminarity’, through an obiter dictum in a decision rejecting a constitutional challenge (Sects. 6–6.2). In this occasion, the Italian Constitutional Court had the opportunity to enhance its role as a court of referral under Art. 267 TFEU despite its previous reluctance in such a recognition (Sect. 4). Indeed, the very reason for the aforementioned ‘clarification’ seems to be the dissatisfaction with the formulation of the preliminary questions proposed by the Tribunal of Cuneo to the Court of Justice in the case that gave rise to the well-known ‘Taricco Saga’ (Sects. 7–7.1). After the decision of the Court of Justice on this case, the Italian Constitutional Court considered it necessary, in fact, to better clarify the interpretative questions already submitted to the ECJ by the territorial Tribunal, proposing a new preliminary ruling on the same object in a constitutional proceeding in which the remitting judges (giudici a quibus) had decided to follow the Constitutional Court’s ‘clarification’ on the ‘first word’, although it was not legally binding (Sect. 6.1). The analysis that follows will show how an open dialogue and a spirit of cooperation characterise in principle the attitude of the Italian Constitutional Court towards the Court of Justice. The tensions that have also occurred seem to be inherent in the physiological dynamic of constructive relationships. The crucial role played by the two Courts in defining national identity and common constitutional traditions has initiated a heated and rich doctrinal debate, which, however, does not yet seem to have found shared ground. After all, this is a highly complex task under a constitutional perspective with delicate political repercussions. The discussion on the so-called counter-limits doctrine, in particular, deserves further and deeper consideration (Sect. 8).