The Role of National Constitutions in the European and Global Context

In the current historical context, a material portion of policy and legislative decisions are taken at a supranational level; in particular, European countries experienced a shift of competencies – and, therefore, of sovereignty – in favor of European Union institutions. This leads to question about which is the current role of national constitutions and how they should be coordinated with international treaties and institutions.

A network of constitutional experts from the twenty-eight EU Member States and from Switzerland analyzed these issues within a research project supported by the European Research Council and directed by Anneli Albi (Kent Law School). Oreste Pollicino (Bocconi University), Giuseppe Martinico (Scuola Superiore Sant'Anna of Pisa) and Barbara Guastaferro (Pegaso University and Durham Law School) took part in the project as Italian representatives.

The outcome of the project is now a volume, forthcoming with Asser Press and entitled "The Role of National Constitutions in European and Global Governance", to which the various authors contributed by answering, in each State's perspective, to a common questionnaire. Pollicino, Martinico and Guastaferro provided the Italian perspective on the relevant subject matter.

Their essay provides, first of all, an overview on the structure and historic origin of the Italian Constitution. The Authors, then, deal with the complex issue of the coordination between the Italian and the EU legal systems, also through an historical reconstruction that succeed in briefly describing the tension occurred, in the past, between the national judiciary and the Court of Justice as regards the national sovereignty limitations connected to the participation to the European Community, as well as the recent proposals for constitutional reforms by Mr. Renzi's Government

In the second part of their essay, Pollicino, Martinico and Guastaferro address the issue of the so-called "fundamental" rights, some of which are even explicitly recognized in the text of the Italian Constitution. In this regard, the Authors compare the degree of protection granted to such rights at national and EU level. In this way, the Authors point out, for example, that the European Court of Justice's (ECJ) case-law does not consider the right to strike as "fundamental", differently from what happens in the Italian legal system on the basis of article 40 of the Constitution. Another example of Authors' remarks is that the European Arrest Warrant regulation, in certain aspects, might be deemed in breach of national constitutional rights, such as of the rule of law in criminal matters (nullum crimen nulla poena sine lege). Pollicino and his colleagues, having examined ECJ's case law as well as national constitutional case law, come to the conclusion that only a more co-operative relationship between the ECJ and national courts could improve the multilevel protection of fundamental rights.

In the third part of their article, the Authors examine some issues that arise in constitutional law in relation to the Italian participation to international treaties and organizations, such as the issue of the position of international law in the national legal system. In this final part the Authors focus on some globally topical arguments, such as the constitutional legitimacy of certain financial anti-crisis measures and of extraordinary anti-terrorist provisions.