relationship between internal and community sources, what will Europe be like?



The European project has always been a great dream for many citizens, but it has never been successful. In this period of severe economic and social crisis, the role of Europe becomes decisive both for the support and recovery of the Member States, but above all for the existence. In the Karlsrhue judgment, the profound reasons for the difficulties of concretizing the European project can be taken into account, that is, on the one hand, national governance will hardly give up its power for a new legal order and, on the other, there is a lack of the push to part of the people for the realization of the United States of Europe. For this reason, it is believed that without a serious constituent path, new legal systems can hardly be established. The approach put in place at the beginning of the 90s, that is, of a simply monetary and banking union, is very weak and has numerous limits, which are clearly showing today. Therefore, one could imagine this pandemic emergency as a new fact in Europe, which could lead to new scenarios, otherwise it would be desirable to keep the European project alive, a confederative and non-federal path.

The European project has always been a great dream for many citizens, but has never managed to materialize. In this period of severe economic and social crisis, Europe’s role becomes decisive both for the support and recovery of the Member States, but above all for existence. In the Karlsrhue judgment, the profound motivation for the difficulty of concretizing the European project can be taken into account, that is, on the one hand, national governance will hardly give up its power for a new legal order and, on the other, there is a lack of the push to part of the people for the realization of the United States of Europe. For this reason, it is believed that without a serious constituent path, new legal systems can hardly be guaranteed. The approach put in place at the beginning of the 90s, that is, of a simply monetary and banking union, is very weak and has numerous limits, which are clearly showing today. Therefore, one could imagine this pandemic emergency as a new fact in Europe, which could lead to new scenarios, otherwise it would be desirable to keep the European project alive, a confederative and non-federal path.


1. Introduction

2. Relationship between the Constitutional Courts and the Community norm

3. Today’s scenario

1. Introduction

In the last few weeks, an unresolved, but extremely interesting, debate has started relationship between the internal and the Community sources, since the German Constitutional Court has objected to the failure to respect the principle of proportionality in the Treaty or ultra vires, i.e. the failure to respect the division of competences between the European Union and the Member States, for regarding the issue of QE in 2015 and 2019.

In this case-law reference, the principle of proportionality is intended as a counterfactual analysis which weighs the advantages and disadvantages of the decision.

The Karlsruhe Court ruling highlights how the European project is particularly in difficulty.

And indeed, each nation state is based on sovereignty popular, and certainly not on monetary sovereignty, so much so that it has been possible to detect the serious limits, if not even the failure, according to some, of the unification process that has been in place since the late 1990s, with who wanted to unify only the banking and monetary system, rather than harmonize and try to universalize the principles and values ​​on which States are founded.

Concepts like are not of secondary importance community, citizenship is sovereignty, understood as power and will that imposes itself on others.

It seems clear that the Union of States is a rather complex case, which could not be resolved with a mere monetary and banking unit, since the interests in the field and the differences between the States are considerable.

It should not be forgotten that the main model and yardstick of the “Federal Union of States”, that is, that of the United States of America, has taken place after years of civil wars and did not concern States already consolidated and formed as they are present in Europe.

Today, the inefficiency of the approach that we wanted to give to the European Union, that is to say constitute a unity from the banking and monetary point of view, clearly demonstrating that a State or a union of States, to be such it must have in common an effective legal order crystallized in a real European Constitutional Charter, of values, a language, a tradition, in short it must have a soul and not only a common currency or a common banking system.

In light of the above, a question arises: can there really be a European project in the coming years?

2. Relationship between Constitutional Courts and Community law

To carry out a complete examination on this point, it is considered fundamental to take into consideration the relationship between internal and community sources in our country.

With the law n. 234 of 24 December 2012 “General rules on the participation of Italy in the formation and implementation of European Union legislation and policies”, the procedures for the participation of institutional subjects in both the “ascending” and “descending” preparatory phases of European legislation are identified and our legal system is adapted to the profound changes that have taken place in the European Union with the entry into force of the Lisbon Treaty.

Furthermore, the new regulation of transposition of European legislation in our State is relevant, with particular reference to directives.

However, the main instrument through which the national legal system adapted to the Union’s legal acts was the annual Community law, provided for from article 9 of Law 11/2005, a sort of container law in which all the European acts that had to be transposed were collected.

The Community law could proceed with the transposition both through the direct legislative modification, and through the attribution to the Government of a series of powers to prepare legislative decrees in coherence with the European directives.

In addition, it was envisaged that in the matters of concurrent and residual legislation there could also be an intervention of the individual Regions, after identifying in Community law the fundamental principles which they must comply with when transposing European acts.

Therefore, to improve the relationship between the Community and national systems, the Italian legislator realized that it was essential to streamline the procedure, taking into consideration a plan containing only the powers delegated to the Government, ensuring a faster parliamentary process, so to allow the Executive to implement the acts of the European Union more quickly. To this end, two distinct laws have been enacted:

a) the European delegation law, to be presented to Parliament by February 28 of each year, concerning only legislative delegations and authorizations for regulatory implementation;

b) the European law, if any, (therefore, a specific submission deadline is not indicated) to be presented to the Parliament also separately from the European delegation law, which concerns provisions modifying or repealing internal rules subject to infringement procedures or judgments of the Court of Justice, necessary to implement the acts of the European Union and the international treaties concluded by the Union.

Well, what is of greatest concern are the differences between the different European legal systems, especially as regards the values ​​and principles they protect rather than their legal structure.

In fact, if you think that Community law exists only if it falls within the legal system of each Member State, it is evident that a Community law, in and of itself, does not exist.

The situation in Italy has worsened with the modification of Title V of the Constitution which has entrusted the regions with the task of implementing the European directives in numerous sectors of social and economic life, which makes coveted harmonization extremely difficult given the dubious effectiveness and efficiency of these entities (e.g. failure to use or waste significant European funds).

The drafting of a real rigid European Constitution and the establishment of a European Constitutional Court would be desirable. In this sense, the Charter of Fundamental Rights of the European Union has not been helpful because it places the individual, not the person, at the center of its action. The aforementioned choice poses a problem, that is, the status personae represents a set of rights and duties, while the individual takes into consideration only the rights.

Community law at the moment, as already mentioned, does not exist in itself, but must be integrated and integrated into the legal system of each Member State in compliance with its internal structures and regulatory sources.

An Italian-EU system would be desirable, i.e. the realization of a harmonization between the state and the Community norms, based on common principles, but to have such a system it is also essential that there is a Constitution or at least a universalization of the principles.

On this point, this horizon is complex, due to different characteristics between the Member States, since on the one hand there is not the political voluntas to abdicate this power to a European and common institution with other countries and, on the other hand, there are also nuances of values ​​and principles on which the various Constitutions are based, which are not only form but also substance.

For example, in France, the French Constitutional Court initially exercised indirect control of constitutional legitimacy over secondary Community law. There are no impediments to the possibility that the Conseil will be called to judge, according to the senses of Article 61 of the French Constitution, on a law that implements a regulation or represents the transposition of a community directive.

Therefore, a possible conflict was resolved through an ex ante evaluation of the Constitutional Court which established the compatibility between Community and French constitutional rules.

Subsequently, however, the Conseil returned to settle on a position of strict observance of Community principles with sentence no. 2004-496 of 10 June 2004, concerning a law for the promotion of the digital economy. With which he posed the principle that the transposition into national law of a Community norm derives from a constitutional requirement, to which only an express contrary provision of the Constitution could make an obstacle, which given the absence of such a provision, only the judge Community, which has been referred for a preliminary ruling, can verify compliance by the Community directive with the competences defined by the Treaty and with the fundamental rights guaranteed by Article 6 of the Treaty on European Union.

While in Germany, the Court of Karlsruhe, in a first phase, claimed that the bodies of the European Community were required to fully protect fundamental rights. Subsequently, it changed the rigidly dualist orientation, arguing that national fundamental rights are not completely removed from the influence of Community law, so as to be able to affect the interpretation and application of rights, provided that their essential content is respected. But at the same time it reserved the right to intervene whenever the Community level does not protect the fundamental rights of the German Constitution.

Finally, the Italian Constitutional Court which, if on the one hand recognizes the task of the Court of Justice to resolve the interpretative contrast between the Community and national norms, on the other considers itself competent to purify the Italian legal system itself from the norms incompatible with Community law by virtue of the precept of regulatory clarity and certainty in the application of the law.

Where the Constitution is rigid, the Constitutional Courts check that the Community legislation does not conflict with their fundamental principles or with the inviolable human rights and at the same time verify that the internal legislation does not conflict with the Community rules.

On this point, the reference to the sentence of the Constitutional Court n. 20 of 2019, in which the stoats highlight the importance of being questioned sooner or later in the contrasts between the national and supranational systems, as a qualified interpreter of the common European constitutional heritage.

In fact, it resumes the previous pronunciation of the Consulta n. 269 ​​of 2017 ‘which established criteria for the choices of the ordinary judge in cases where internal legislation violated both the provisions of the national Constitution and the Nice Charter, therefore, the reasons for theobiter dictum reside in wanting to preserve the opportunity of a possible intervention with erga omnes effects of the Court of legitimacy, by virtue of the principle that affects the centralized union of constitutionality at the basis of constitutional architecture.

In a fundamental fragment, the stoats wanted to underline the role of the national courts of legitimacy: “This Court must therefore express its assessment, in the light above all of the internal constitutional parameters, on provisions that, like those now under consideration, although subject to the regulation of the European law, affect fundamental principles and rights protected by the Italian Constitution and recognized by the same constitutional jurisprudence. This is also for the purpose of contributing, for its part, to making the possibility effective, of which Article 6 of the Treaty on European Union (TEU) reasons, signed in Maastricht on 7 February 1992, which entered into force on 1 November. 1993, that the corresponding fundamental rights guaranteed by European law, and in particular by the CDFUE, are interpreted in harmony with the constitutional traditions common to the Member States, also referred to in article 52, paragraph 4, of the CDFUE itself as relevant sources “.

In this regard, the ruling increases the accessibility of the constitutionality check, since it allows the common judge to raise a question of constitutional legitimacy, without running the risk of hearing it declared inadmissible for a possible lack of the previous solution of the question of legitimacy “euro-unification”. Therefore, it expands the power of common judges on legitimacy issues.

The horizon that he tries to trace is a further push to dialogue between the Constitutional Court and the Court of Justice, which derives from the notion of the concurrence of remedies, with the consequent enrichment of the instruments of protection of fundamental rights, to which it refers the recent sentence of the Consulta.

The Court of Justice in the first section judgment of 20 December 2017, CD. Global Starnet, had claimed responsibility for ruling against a reference for a preliminary ruling on Union rules, which are considered to coincide substantially with the rules of the Constitutions, on which the constitutional judge has in turn already ruled.

The divergence of orientation with respect to sent. n. 269 ​​of 2017 of the Constitutional Court and the recent ruling of 20/2019 Short Cost., which reports to the latter’s union the cases of violation of the rules of the Nice Charter, even if they are self-executing in nature, a divergence as a result of which there may be conflicts between the Courts.

Therefore, both the decision of the European Court and of the Italian Court does not indicate an easy meeting point between national and Community rules, but it will certainly require a work of revision of the positions of the European Court, in order to comply with the new requests coming from the National constitutional courts.

Ultimately, for the purposes of the complete realization of the European project, one cannot disregard the necessary constituent path, which allows to legitimize and universalize the values ​​and principles on which the decisions of the supranational institutions are based, otherwise there are always orders that communicate between they but as “outsiders” and never as a single legal order.

3. Today’s scenario

To realize the European dream it is essential to ask ourselves how to overcome the often conflicting relationship between the supranational and the state systems, in fact there was a discussion of a European constitution with the universalization of rights, and then signed in 2007 the Lisbon Treaty that resumed some requests for reform that occurred in the debate of the early 2000s on the European constitutional project.

The European Constitution was discussed at the beginning of the 2000s, this reform project indicated the two great challenges of Europe in the new millennium: an internal one, bringing the European institutions closer to the citizen and strengthening the Union’s democracy; an external one, the role that united Europe would have had, as regards the protection of peace, democracy and fundamental human rights.

The Constitutional Charter introduced a clearer distinction between three types of competences: those exclusive of the Union, those of the Member States, those shared between the Union and the Member States, so as to clarify in a precise manner the different competences and the principle of subsidiarity.

In this regard, it was debated whether to develop a common foreign and security, environmental, health policy, or instead to delegate these issues to the Member States and, where their establishment so requires, to the regions; reduce the number of legislative instruments and summarize the vast legal body of the Union in a single document, to ensure maximum clarity.

This constituent project ended, initially due to the two referendums in France and the Netherlands in 2005, and subsequently the United Kingdom, Poland and Denmark suspended their referendums so as to make ratification impossible.

Indeed, the referendum elections of France and Holland in fact mark the official birth certificate of that vast anti-European movement which today makes the politics of the entire old Continent unstable.

On this point it must also be said that it is a very broad political-ideological array that ranges from the nationalist right to the non-global left, managing to represent a large part of the European population highly skeptical about the project, as a monetary union had taken place without political and institutional union, incorporating Eastern countries without truly integrating them. So much so that it is improbable to want to define the Constitution as the project for reforming and simplifying the treaties, which ended with the Lisbon Treaty, remains very far from a true constituent process.

This would imply a re-foundation of sovereignty and democratic legitimacy. It would require moving the center of gravity of European power from the various capitals to Brussels. A people that gives itself a Constitution, puts it at the foundation of its citizenship, making it possible to speak first of all of European citizens, and only secondly of Italian, French or German. None of this, in the intentions of most governments that in 2001 launched the European Convention for a Constitution for Europe, because there was no real will to delegate sovereignty or to yield legitimacy.

In fact, the lack of the fundamental element, that is the constituent power, produces a great democratic deficit which is reflected in problems of legitimacy, participation and autonomy of the Union, which is permanently placed above the community and therefore escapes to control the population.

So much so that the United States of America, which is an affirmed and consolidated Federal State, with a well-defined institutional political structure and a unitary and representative foreign policy of all the Member States, has a Constitution that opens with “We People of the United States … we order and establish this Constitution … “, while in the preamble of the European Constitutional Project reference was made to the will of the representatives of the Member States.

It is peaceful, therefore, the different strength of the constituent power between the American and the European one, also taking into consideration that the American one is a real Constitution, which presents the photograph of the institutional political situation that produced it and the set of traditions and culture of a people. Despite carrying more than two centuries of history on its shoulders, it is always current and continues to always bring back the exact cultural and institutional framework of the United States, obviously thanks to the contribution of the Supreme Court which has modified it over time, making it ever closer to needs of the people who wanted it.

The European one, on the other hand, is a simple agreement between States which tries to resume the Constitutional style, but it is only a semblance because it remains in the logic of the Treaty anyway. The will of the people was only the last instance to which it was subjected. The process was carried out in reverse, i.e. the initiative started from above, by a mediation of the national summits which did not present ideological proposals and projects but simply collected the lowest common denominator of the national Constitutional Cards.

Several jurists have reflected on the importance of concretely and definitively implementing the European project, which they deem essential that European principles are universalized, in order to avoid conflicts between state and supranational norms, so as to allow a rationalization of the legal system and consequently a homogeneous protection in Europe of fundamental human rights.

However, it seems clear that to date, the implementation of the United States of Europe project is decidedly impossible, as there would be no conditions for the we the people or the voluntas of the Member States to want to abdicate their sovereignty, i.e. to surrender the its power to a supranational institution.

For this reason, a clear and timely discussion is deemed necessary both within the States and between the plenipotentiaries, in order to establish formal and substantial legal recognition.

A federalist form of Europe is believed to be more feasible, keeping the sovereignty of the Member States, rather than the realization of the United States of Europe.

This is explained quite clearly by Ferrajoli, who argues that the realization of a supranational order, in which there are institutions that guarantee equality and respect for the fundamental rights of all European citizens, could only materialize through the will of the countries most influential of the Union, which should protect the economic and political interests of all member countries, rather than protect the particular benefits of their states.

The foregoing clearly demonstrates the reasons underlying the judgment of 5 May issued by the German Constitutional Court, which highlights how there is basically no solidarity principle on which a European Union should be based.

Therefore today, the act issued by the aforementioned Court also strongly weakens the feasibility of the economic aid plan, the so-called Recovery Fund, as requested by the countries most in difficulty due to the health emergency.

So much so that, we think on a plan of extraordinary interventions, through the instrument of “common debt”, but by reducing the economic scope of European action, since there are different cultural and political visions and traditions among the so-called Northern European countries and those of Mediterranean Europe.

However, a lack of significant and solidarity-based intervention could put an end to the European project, demonstrating how fragile the European Union that has been imagined and implemented, since a constituent path has not been put in place, but we wanted to start from a economic and monetary point of view.

In conclusion, the European integration process has now reached a crucial and definitive point. The future, however, is still to be written and if European countries do not give new impetus to the Union project, what awaits us is a return to the past. The weaknesses of the Union have emerged both with the crisis of 2008 and above all, with the health crisis of these months, in which it has been shown that European countries are less united than they should be.

Can this crisis be an opportunity to give a new impulse to the formation of the “United States of Europe”?

Definitely, it can be that event from which a wider process of formation of a European integration path can arise. But as previously said, the advent of a federal state is desirable, but given the status quo it seems far and illusory to materialize the United States of Europe without a strong awareness and will from the citizens and at the same time, the intention by States to cede part of their power, legitimizing a higher level institution.

Rather, given the objective difficulties, it would be imaginable to create a true Confederation, which is an association of States created by means of a treaty, in order to draft a common Constitution, so as to universalize the fundamental principles and values, on which to base the Confederation of States and, consequently, present themselves as the only international interlocutor.

From a monetary point of view, however, it would be desirable for the ECB to become a true central bank like the Federal Reserve in the United States of America, which must support States with a change in the economic paradigm or by implementing an expansive monetary policy , for example by financing the European Investment Bank and the public investment banks of the individual states, so that the investments that will be needed to rebuild the economies of the member countries can be facilitated.

Moreover, European states apply very different rates and this allows the various multinationals to choose where to have their headquarters, to pay less taxes, so as to penalize companies that have their headquarters in states with the highest taxation. This last example highlights the importance of sharing principles and values, as it would avoid a disadvantage and competition within the Confederation for the member countries, which is useless and strident if there is really the will to achieve a common project.

Otherwise, it is impossible to say that the European project has failed or, at least, is in deficit, as it has not been. capable in recent years, of giving those social and political responses that only a constitutionally legitimated state, and for what is said above sovereign, can give.

In view of the foregoing, if the status quo does not change, the consequences could be, on the one hand, the concealment of the power of the national and supranational political-economic elites, to continue to protect their own particular interests, while on the other it could materialize as tumultuous popular movements have already taken place in France, as peoples cannot be governed solely with economic and financial parameters, but it is essential to make choices in the social sphere and, at the same time, to give them a vision of community in the medium and long term.

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