From Partial to Full Dialogue with Luxembourg: The Last Cooperative Step of the Italian Constitutional Court

Abstract

The year 2013 will be remembered as a very good year for the evolution of the judicial conversation between the Court of Justice and the constitutional courts of the member states. This is true at least with regard to the particular form of judicial cooperation that may be considered the institutional channel of dialogue between the Strasbourg Court and national judges: the preliminary ruling mechanism. In 2013 the French Conseil Constitutionnel for the first time in its history sent a request for a preliminary ruling to the ECJ and the latter answered the first preliminary ruling sought in 2011 by the Spanish Tribunal Constitucional. Moreover, the Italian Corte Costituzionale decided for the first time to raise a preliminary reference to the Luxembourg judges in the context of incidenter proceedings.

This represents a second step, following an initial one taken in 2008 in so called direct proceedings. The new judicial path of the Italian Constitu­tional Court (ICC) is in line with the new season of cooperative constitutionalism in Europe.

To identify the resulting added value of the new step, this contribution will contextualise the decision of the Italian Constitutional Court to raise a preliminary reference in an incidenter proceeding. First, the evolution of the constitutional case­law concerning the possibility for the Court to make use of the preliminary procedure (Article 267 TFEU) will be examined and, secondly, the content of the 2013 decision and its legal reasoning. Finally the reasons behind the last coopera­tive step and its added value to the 2008 decision will be discussed.

Keywords: constitutional court, preliminary reference, preliminary ruling, court of justice, European Union law, European law, judicial dialogue