Stefano Civitarese Matteucci, Gianluca Gardini

Primacy of EU Law and Independence of the Member States with Regard to Trials: In Search of a Sustainable Balance

  • Abstract

Informations and abstract


This work starts from the challenge to national sovereignty in the area of judicial power as a consequence of European integration, and analyzes in particular the controversial issue of the clash between the procedural independence of the Member States and the primacy of the law of the European Union. The work holds that this issue still deserves attention inasmuch as the power of the State to administer justice in the absence of outside conditioning can be considered part of the fundamental 'epistemic core' of a legal system. The definition of the principles that shape jurisdiction as a whole is the typical instrument that the national systems make use of to guarantee the certainty of law. The idea, therefore, is that such principles regard 'constitutional discourse' within the Member States as part of their constitutional identity. In practical terms, this means that constitutional courts ought to be involved in questions from which they have essentially been excluded hitherto, and likewise entails a reassessment of the model of centralized constitutional review, jeopardized by the claim to supremacy expressed by EU law. The article takes into consideration two different implications of this clash between principles inherent to the system: 1) the power of ordinary judges not to consider the authority of something judged when it is in conflict with EU law; 2) the power of national constitutional courts to limit the supremacy of EU law for the purpose of protecting the identity of national systems. The aim of the investigation is to examine such questions in depth, mainly from the viewpoint of Italy's legal system, with the intention of verifying how the tendency of the European Union to impose its supremacy can be reconciled with the prerogatives with respect to trials of the Member States.

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