Dopo la «precisazione». Sviluppi di Corte cost. n. 269/2017

di Michele Massa

SOMMARIO: 1. Premessa – 2. Allineamento, polemica, circospezione – 3. La persistenza del triangolo magico – 4. Precisazioni sulla precisazione – 5. In luogo delle conclusioni

The essay surveys the aftermath of the new doctrine established by the Italian Constitutional Court (ICC) in judgment no. 269/2017: when a national law contrasts both with the Constitution and the EU Charter of fundamental rights, the question of constitutionality should take precedence, even if this partially reduces the scope for preliminary references to the EU Court of justice (CJEU) and non-application of national law conflicting with EU law. This doctrine has been partially implemented and partially contrasted by Italian civil and criminal courts, including the Court of cassation (§ 2). It has been criticized by the CJEU, albeit indirectly (§ 3), while also the ICC felt the need to provide corrections and clarifications (§ 4). The essay argues in favor of the priority for constitutional judgments in the cases at stake: otherwise, constitutional jurisdiction in Italy could end up displaced by the European jurisdiction (i.e. by the alliance between ordinary courts, in their European role, and the CJEU). This should go hand in hand with a more frequent use by the ICC of preliminary references to the CJEU (§ 5).