Appunti Fundamental Rights-The effects of the ICC decisions + The Italian Constitution in the European area

DUALIST APPROACH

In Italy, the international and national legal systems are conceived as separated. Other countries intend international law and national law as part of a unique legal order.

DUALISM:

• Treaties need to be transformed by an act of the legislature or Head of State
• In cases in which parliamentary approval of a treaty is required, this is (in principle) in function of the incorporation of that treaty of parliamentary legitimation of the treaty.
• No scrutiny of the ICC on the constitutionality of the treaty (not ex ante).
• But there could be a check ex post, exercised on the ratification and the order of execution (the both are laws of the state approving and giving application to the treaty in the national legal order).

Article 11 ICItaly

Italy rejects war as an instrument of aggression against the freedom of other peoples and as a means for the settlement of international disputes. Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy shall promote and encourage international organizations furthering such ends.

Even though it was meant to apply to the UN...→Solid constitutional basis for the participation to European Union of Italy

Article 117 IC

Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU-legislation and international obligations.

This provision served as a legal basis for the recognition of a special status not only to EU law (directly applicable), but also to ECHR (and judgments of ECtHR) and European Social Charter.

EUROPEAN JOURNEY OF THE ICCa.

At the beginning, the founding treaties of the EU assimilated

1. Criterion of chronology: national law could repeal Eu law! (ICC no. 14/1964→CJEU, C-6/64 Costa v ENEL)
2. The ICC changed its attitude: ”limitations of sovereignty” (ICC no. 183/1973, Frontini)→criterion of hierarchy: but delays in giving primacy and direct effect to EU law →CJEU, C-106/77 Simmenthal
3. ICC 170/1984 Granital(or La Pergola, judge rapporteur) →primacy & direct effect →noannulment but every single judge must set aside/not apply the national law inconsistentwith EU Law →criterion of competence
4. The ICC can still declare unconstitutional the pieces of legislation contrasting with EUlaw (117 IC) -ICC no. 117/2019

COUNTER-LIMITS

Openness of the IC accompanied with some reservations:

• Parallel with Germany and Bundesverfassungsgericht Case law (Solange 1974 und1986)
• There are limits to the limitations of sovereignty: COUNTER-LIMITS (1973)→inviolablerights and supreme principles of the

Constitution.ICC verifies whether this limits are respected and may declare unconstitutional EU law by annulling the ratification/order of execution as it infringes upon the supreme principles (e.g. Tariccosaga)

ECHR

The (ECHR; formally the Convention for the EUROPEAN CONVENTION ON HUMAN RIGHTS Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe.

Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. The convention established the EUROPEAN COURT OF (generally referred to by the initials ECtHR).

HUMAN RIGHTS

Any person who feels their rights have been violated under the convention by a state party can take a case to the court

But there is a prerequisite: .EXHAUSTION OF INTERNAL REMEDIES

Only after having sued the national court, the person whose right was infringed can go before the Court of Strasburg.

Judgments finding violations are binding on the states

concerned and they are obliged to execute them.

The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payments awarded by the court appropriately compensate applicants for the damage they have sustained.

The convention has several protocols, which amend the convention framework.

Historical background:

• the European Convention on Human Rights, and more generally the Council of Europe, continued a project already initiated by the United Nations of building international law and cooperation in order to safeguard against repetitions of mass-scale armed conflict
• growing fear of, on the one hand, the rising power of the national Communist parties, and, on the other, Soviet imperial expansionism into Western Europe

European human rights as mainly a measure against an external threat.

The Convention was mainly assumed to provide the legal and political means for deterring the future rise of any sort of fascism in Europe—from within

or from the outside—rather than, at least initially, being the instrument for substantially altering or unifying the practices of the legal systems of the member states→core European democratic values were listed.

But then evolved far beyond these original goals...ECHR IN ITALY

EU law claimed a privileged position –ECHR left room to define/specify legal status assigned to the Convention

Treated as a typical international treaty for some time…The growing importance led the ICC to recognize a special importance to the ECHR.

ICC no. 348 & 349/2007 (Twin Judgments) →interposed parameter.

Judges cannot set aside the national legislation inconsistent, but must refer to the ICC a Article 117.1 ICC question of constitutionality (in relation to )

For example: an ordinary court found a violation of a certain prohibition. The provision cannot be set aside immediately, but the ordinary court must refer the question of constitutionality to The ICC.

Therefore, in the case of EU law,

HIERARCHY OF NORMS

• CONSTITUTION
• CONSTITUTIONAL ACTS
• EUROPEAN CONVENTION OF HUMAN RIGHTS (ECHR)
• ORDINARY LEGISLATIVE ACTS
• REGIONAL LAWS
• DECREE-LAWS
• LEGISLATIVE DECREES
• RULES OF PROCEDURE (Parliament)
• ABROGATIVE REFERENDUM
• REGULATIONS (secondary laws)
• CUSTOMARY LAWS

CFREU (also CFR)

Charter of Fundamental Rights of the European Union

The (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law.

Solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission.

However, its then legal status was uncertain and it did not have full legal effect until the entry into

The Treaty of Lisbon came into force on 1 December 2009, giving the Charter the same rank as the EU Treaties. This means that the Charter now has direct effect, allowing national judges and courts to set aside or not apply national legislation that is inconsistent with the Charter.

The Court of Justice of the EU is the main institution responsible for interpreting and applying EU law. It is a complex system consisting of different courts, including the European Court of Justice (ECJ), which has been in existence since 1952, and the General Court (formerly the Court of First Instance), which was established in 1988. There are also specialized courts within the system.

The functions of the Court of Justice include references for a preliminary ruling, actions for failure to fulfill an obligation, actions for annulment, actions for failure to act, actions for damages, and appeals and reviews. The preliminary ruling procedure, governed by Article 267 of the Treaty on the Functioning of the European Union (formerly Article 177 of the EC Treaty and Article 234 of the Treaty establishing the European Community), is particularly important in ensuring the uniform and effective application of EU law in all member states.

States:

• To prevent (or, at least) to reduce divergent interpretations
• National judges are the first guarantors of EU law
• Every national judge may (but, if in last instance, must) refer to the ECJ asking either for the clarification the interpretation of EU law or for questioning the validity of a piece of secondary law
• The interpretation given by the ECJ is BINDING for the national judge and the Court's judgment also binds other national courts before which a problem of the same nature is raised

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

1. the interpretation of the Treaties;
2. the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a

ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

DIALOGUE AMONG COURTS

1. decision no. 168/1991: «possibility»6. -Nel caso all'esame di questa Corte -la quale, ferma restando la facoltà di sollevare anch'essa questione pregiudiziale di interpretazione ai sensi dell'art. 177 cit., può procedere, al fine suddetto, alla diretta interpretazione della normativa comunitaria(...) -risultano chiara evidenza…

2. order no. 536/1995 denial: nella Corte costituzionale non è ravvisabile quella "giurisdizione nazionale" alla quale fa riferimento l'art.

177 del trattato istitutivo della Comunità Economica Europea, poiché la Corte non può essere inclusa fra gli organi giudiziari, ordinari o speciali che siano, tante sono, e profonde, le differenze tra il compito affidato alla prima, senza precedenti nell'ordinamento italiano, e quelli ben noti e storicamente consolidati propri degli organi giurisdizionali³. order no. 319/1996: pushing ordinary judges to submit preliminary reference

Spetta ai giudici rimettenti di adire previamente la Corte di giustizia delle Comunità europee

What about principality proceedings?⁴. order no. 103/2008: the first preliminary r