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This chapter describes the impact of European Union Law and the European Convention on Human Rights on the structure of constitutional adjudication, in particular in states with specialized constitutional courts. While these courts had held the monopoly on the judicial review of legislation before, the primacy of Union law substantially moved competences in this field to ordinary domestic courts. In states without constitutional review of legislation, it even moved competences not only within the judiciary but also between the three branches of the state. Similarly, the emergence of the European Court of Justice and the European Court of Human Rights as constitutional courts of Europe has meant that the national constitutional courts have lost their power of the ‘final say’. Recent, sometimes hostile, jurisprudence by national constitutional courts towards the European courts can also be explained as a reaction to this shift of power.

Constitutional identity, EU law, constitutional law, EU member states

The chapter refers about the main development occured in 2021 in the Italian constitutional system.

The Italian model of judicial self-government is often presented as a successful example of institutional reform to be copied in young democracies. This paper provides a deeper and multifaceted image of it and takes stock of its performance in securing the independence and the accountability of the judiciary. It first maps the rationale and the actors of judicial self-government in Italy, stressing, in particular, that the Italian model of judicial self-government not only aims at preventing the influence of the judiciary by external powers, but it is also equally concerned by threats to judicial independence coming from within the judiciary. It then provides a longitudinal analysis of the impact of this model of judicial self-government on the values of the independence and the accountability of the judiciary after the establishment of the High Council of the Judiciary in 1958. While acknowledging the crucial role of this body in securing the independence of the judiciary, this article claims that the values of independence and accountability of the judiciary have been achieved only progressively and partially.

In recent years, conscientious objection has been confronted with growing hostility among the public as well as in scholarly debate. With regard to termination of pregnancy, the right to conscientious objection has frequently been depicted as an unjust and antidemocratic privilege for religious minorities or as part of an illiberal attack to women’s rights. This paper argues that, if properly regulated, conscientious objection is not only compatible with the liberal principles western democracies rest on but is also an essential tool of democratic societies committed to pluralism. It discusses the case-law on conscience clauses in abortion laws of supreme and constitutional courts of several European legal orders to show that conscientious objection can significantly contribute to protect pluralism in democratic societies, provided that two criteria are met. First, the right to conscientious objection should be granted only exceptionally, when a moral conflict is as deep as to impinge on the human being’s dignity. Second, it should not be granted without providing for adequate mechanisms to ensure the law’s effectiveness notwithstanding conscientious objection.

This chapter looks at the origins, history, and present-day status of the Italian Constitutional Court. It argues that the theme of the Italian constitutional jurisdiction’s Europeanization and internationalization relies on two premises. First, the indispensable interaction between the Constitutional Court, the ECJ, and the ECtHR shakes the premises and foundations of the centralized review of legislation. Second, the process of Europeanization and internationalization of constitutional justice is an ongoing process that is far from having reached a stable end. Today, the chapter shows how the Court seems to have embarked on a new ‘path’ of European multi-tier constitutionalism. Although the path’s end is neither in sight today nor devoid of contradictions, three possible scenarios regarding Italian constitutional jurisdiction emerge from the current jurisprudence of the Court.

In principle, constitutional courts do not review questions of domestic compliance with EU law, as these are considered to be outside their jurisdiction. But there are several exceptions in which EU law serves as a yardstick for constitutional review. This article focuses on these exceptions from a comparative perspective. First, it describes the ‘state of the art’ by examining whether and to what extent constitutional courts already use EU law as a standard for their decisions and invalidate domestic legislation or courts’ decisions that conflict with EU law. Then, it explores the limits within which EU law can be invoked as a yardstick for constitutional review without jeopardizing the principle of primacy of EU law. Finally, it argues that constitutional courts should not be afraid to embrace EU law as a standard for review: Doing so would not only contribute to a better protection of fundamental rights and the rule of law in Europe, but would also further the interests of constitutional courts.

RESUMEN Este artículo examina los fundamentos de la autoridad de la Corte Constitucional italiana comparándola con la del Tribunal Constitucional Federal alemán. En comparación con el Tribunal alemán, la Corte italiana ha construido su autoridad sobre una base particularmente débil. Sin embargo, ha tenido éxito en desarrollar una dinámica de "poder en la debilidad", que explica importantes características de la Corte Constitucional italiana: su relación excepcionalmente cooperativa con los tribunales ordinarios, su estilo conciso de razonamiento, su deliberado bajo perfil frente a la opinión pública, su interacción activista con el legislador y su diálogo táctico con el Tribunal de Justicia de la Unión Europea. ABSTRACT This paper examines the foundations of the Italian Constitutional Court's authority by comparing it with that of the German Federal Constitutional Court. In comparison to the German Court, the Italian Court had to build its authority on a particularly weak legal basis. However, it succeeded in developing a dynamic of "power in weakness" which explains important features of the Italian Court: its exceptionally cooperative relationship with the ordinary courts, its terse style of reasoning, its deliberate low profile in public opinion, its activist interaction with the legislature, and its tactical dialogue with the Court of Justice of the European Union.

This paper examines the foundations of the Italian Constitutional Court’s authority by comparing it with that of the German Federal Constitutional Court. In comparison to the German Court, la Corte had to build its authority on a particularly weak legal basis. However, it succeeded in developing a dynamic of “power in weakness” which explains important features of the Italian Constitutional Court: its exceptionally cooperative relationship with the ordinary courts, its terse style of reasoning, its deliberate low profile in public opinion, its activist interaction with the legislature, and its tactical dialogue with the EU Court of Justice.

The +Italic Simmenthal -Italic judgment of 1978 shed light for the first time on the tension between the centralised model of judicial review of legislation +Superscript 1 -Superscript and the principle of primacy of EU law. 2 However, it has only been in recent years that the difficult coexistence of the two systems has become evident, so much so that it now questions the fundamental role of the centralised review of legislation as hitherto known in Europe, and perhaps, in the long run, its very survival. 3 Technically, what is particularly challenged by the principle of primacy is a specific way of access to constitutional courts, through a question of constitutionality raised by ordinary courts. Obviously, this is not just a question of pure procedure. What is at stake is the constitutional courts' 'core business', i.e. the protection of fundamental rights that might be taken away from them to the benefit of ordinary courts in partnership with, and under the guidance of, the Court of Justice