ECJ and National Constitutional Courts: A Collaborative Law Approach

The article undertakes an analysis of the relationship between ECJ and national Consti- tutional courts based on an (international) collaborative law approach. The analysis supports the arguments I have elsewhere advanced as to the self-establishment of an interindividual legal system of the EU, occupying, thanks to its effectiveness, the legal “space” left by national legal systems, in execution of MS international obligations based on EU Treaties. In such framework, the study analyses first the ECJ case law es- tablishing the fundamental structural features of the EU legal system in its relationship with MS’ legal systems. The change of approach, from confrontational to collaborative, is highlighted. Notably, the generally collaborative character of the preliminary ruling procedure is stressed, and with it the ECJ collaborative attitude towards MS constitu- tional systems and courts, emerging both procedurally and substantially in recent case law. Second, the case law of the Italian Constitutional court is assessed against the same standards. While the overall assessment is a positive one, as demonstrated by the dramatic shift from the confrontational approach of the origin to a substantially coop- erative attitude, which was in the last decade supplemented by an equally collaborative procedural approach, the latest developments are indeed troubling. In fact, since M.A.S. and M.B the Corte seems not to be immune from a unilateral overstatement of the con- stitutional identity clause. Third, the article concentrates on the German Constitutional court’s case law. While some elements of compromise are clearly there, enabling a sub- stantial modus vivendi with the ECJ, as to the issues of fundamental rights guarantees and ultra vires scrutiny, Karlsruhe’s approach is fundamentally unilateral and self- referential. It disregards the essential features of EU law as uniform law common to all MSs, and the essential role conferred the ECJ by the Treaties to preserve such unity. Moreover, Karlsruhe disregards the international law character of EU engagements, and seems to embrace legal nationalism not only on the occasion of some punctual fric- tions, but rather as a theoretical basis of its doctrines of democracy and sovereignty. The positive outcome of the analysis is the emergence and endurance of a procedurally cooperative approach in Karlsruhe, too. It is by building on the procedural cooperation that the ECJ was capable of responding to the defiant attitudes of both the Corte cos- tituzionale and the Bundesgerichtshof, confirming its role as an authoritative leader in the sometimes-turbulent process of judicial dialogue and collaboration. Finally, some reflections are developed on a collaborative way to address the issue of sovereignty in Europe. Not embracing an absolute, Bodinian notion of sovereignty, and preferring a more neutral one, pointing at the existence of (concurring) powers of direct government of individuals over the same territories, might be a wise attitude. One that would ease the collaborative coexistence of legal systems, and the preservation of the self- established interindividual system of the EU, upon which the success of European inte- gration process was built so far.