Diletta Tega

Between Incidenter Review and Preliminary Reference: Work in Progress

  • Abstract

Informations and abstract

Keywords: Judicial Review; Fundamental Rights; Preliminary Reference; Incidenter Review; Italian Constitutional Court; CJEU; CFR.

The essay discusses Italian Constitutional Court decisions 269/2017 and 20, 63, 112, 117/2019 on the question of double «incidentality». This situation emerges when a preliminary reference is sent to the CJEU, at the same time as a question of unconstitutionality is referred to the national Constitutional Court. The essay argues that the Italian Court has been trying to regain a right of first word on questions of human rights protection in its incidenter proceedings. When read together, these decisions may suggest at least three conclusions: i) the role of the Constitutional Court keeps shrinking while the prerogatives and role of ordinary judges, thanks to the preliminary reference, keep increasing; ii) conflict between national Constitutions and the European Charter of Fundamental Rights may also increase; iii) through the doctrine of direct effects, some judges may be tempted to force the monopoly of the Constitutional Court on questions of legitimacy of ordinary laws. These scenarios may bring about the ultimate displacement of the central role of the Constitutional Court in the judicial review of ordinary laws with respect to fundamental rights. It is in order to resist these scenarios that the foregoing decisions of the Italian Court seem to have overruled the Granital jurisprudence.

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