Augusto Barbera

The European Charter of Fundamental Rights: For a Dialogue between the Italian Constitutional Court and the European Court of Justice

  • Abstract

Informations and abstract

Keywords: European Charter; Antinomy; Constitutional Courts; Principles; Rights Review; Preliminary Reference.

The entry into force of the European Charter of Fundamental Rights has opened a debate about the continued validity of the framework established by the Simmenthal and Granital decisions: when there is a specific antinomy between national and European legal rules the ordinary judge disapplies the national rule, but when the conflict is between a national rule and a principle (or objective) set at the European level the involvement of Constitutional Courts appears more appropriate - possibly also with the contribution of the Court of Justice of the European Union (CJEU) through the preliminary reference procedure. In these cases, Constitutional Courts are called to judge upon the general validity/invalidity of the national law with "erga omnes" effects. To be sure, in the first set of cases there is an antinomy between rules - you either apply one or the other - in the second set of cases, there is a conflict between a rule and a «parameter». The theme emerges even more clearly in relation to rights protected by the Charter and those protected in National Constitutions.

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