RICERCA ITALIANA     

Research program

The protection of fundamental rights in the national and supranational legal systems, in the perspective of a "European" Constitution

University Co-ordinator

Università degli Studi di SIENA - DIRITTO DELL'ECONOMIA - SIENA(SI)

Research Unit Leader

Tania GROPPI

Description

Purpose of the Research Unit is the reconstruction of the Member States' position relating to the theme of the primacy of EU Law on the National Constitutional Law, after the European Constitution. Primacy, this one, which is today expressly affirmed by art.I-6 of the Constitutional Treaty.
The research aims to verify, State by State, on the base of the available data, the means by which the EU Law prevails, regarding in particular to the hypothesis of contrast with Constitutional rules. The recognition is much more significative and probatory for the "old" Member States, because it is corroborated by many years of juridical experience and jurisprudential application; it appears to be more confused and uncertain the position of the "new" Member States, because it is not (yet) made effective by the jurisprudential application.
On the base of the observation of living Constitutional Law, how it has been made by written Constitutional norms and by jurisprudence, the research is going to concentrate on two different kinds of limitations (or challenger) to the primauté of the primary and secondary EU Law, on the national Constitutions.
a) We can talk about formal limitations (or procedural) when national orders admit the primacy of EU Law on the National rules (also of constitutional rank), as long as it is introduced through a special procedure, different from the legislative one and, usually, similar or concurrent to the one of Constitutional reform. In general, this prevision is contained in the European clause operating in each Constitution relating to the access of primary Constitutional Law, but it can sometimes work for secondary (i.e. derived) EU Law as well (France): it usually requests, besides qualified parliamentary majorities, the intervention of the electoral body, by referendum. The operativity of such "conditions" (more than actual "limitations") of admission, is entrusted in political organs (Parliament, people) and only in few cases in Constitutional Courts (that's what happens in France and Spain). As a consequence they imply the immunity from jurisdictional control of Communitarian Law in this sense: the control has been enacted at the very beginning, at the moment of the access, so it can not operate at the moment of the implementation.
b) The effective limitations regard the moment of the enactment of EU Law, in the sense that primauté on National Law of constitutional rank can be limited through the control by the national: that is possible, at least on the hypothesis that a judge, or more often a Constitutional Court, resist to the application of EU Law when this contrasts with the Supreme principles of its own National Order or with the inviolable human rights.
It is about the (possible) limitations to the self-executiveness and, so, to the primauté, of individual communitarian rules. This kind of limitations – normally identified as "contro-limiti", because they are actually limits posed to the limitations of National Sovereignty – emerge in Orders that admit limits to Constitutional revision, that assume a hierarchy in the ambit of Constitutional norms (Germany, Italy, Greece), and because of this do not accept completely the principle of the primacy of EU Law, reckoning that not even a constitutional revision can result idoneous to introduce into the national orders European rulings contrasting with the inalienable nucleus of the National principles. When the controlimiti are provided by the constitutional text, as a parameter offered to the Court to syndacate the European Law, we can speak about effective textual limitations (Germany); where, instead, they operate only on the bases of a jurisprudential creation of Constitutional Courts, that have self-given a power of judicial review of the EU Law, we can talk about effective non-textual limitations (Italy).
The program will be carried on in three phases.
In a first phase the Research Unit will be involved in the reconstruction of the sources concerning the relationships between National Constitutional Law and EU Law in the Member States.
The doctrine, constitutional ruling and constitutional jurisprudence above all will be examined in order to verify a) if it is admitted the primacy of EU Law on National Constitutional Law; b) in this case it will be checked weather formal or effective limitations are provided to such a primacy. In order to achieve this objective it will be necessary to extend the network of international relationships the Research Unity can already rely on, also counting on the many conventions which have been stipulated y the Centre of research in Constitutional Comparative Law of the Siena University, the responsible of this research is a member of.
In a second phase the material that has been collected will be systemized in a data-base which will make it easy to discover the sources and that can be made reachable by all the members of the Research Unit and, once the research will be completed, it will be made accessible to the scientific community as well.
In the third phase we will try to systemize the National limitations to the primacy of EU Law on the National Constitutional Law, following the scheme we have been showing above (formal limitations/effective limitations). In particular we will analyze the both express than the jurisprudencial limitations, in order to verify whether they are still actual after the implementation of the European Constitution or if they can instead be considered overruled by the adoption of the Charter of fundamental rights and by the existence in the Constitution itself of a series of clauses that garantees fundamental rights at european level.