Our meeting focuses on the theme of the constitutional identity of the European Union (EU), a theme that is successfully summarized by the term “Eudentity”. This term evokes the phrase “united in diversity”, the motto of the EU that conveys a core feature of the European juridical space, where common values and national particularities are called upon to coexist in an equilibrium that must be continually sought.
The quest for “harmony between different [entities]”, as Valerio Onida, former President of the Italian Constitutional Court, wrote some years ago (see Quaderni costituzionali, 2002), engages constitutional courts especially when they are called upon to protect fundamental rights, a field in which the convergence of the various national, supranational and international legal systems is accompanied by an enduring plurality of interpretations in specific cases and controversies.
The Italian constitutional system is no stranger to these tensions. Indeed, the Constitutional Court has recently engaged with the Court of Justice of the European Union (CJEU) in a productive dialogue, which may be usefully described in this context.
1. The internationalization of fundamental rights and the corresponding proliferation of the judicial bodies called upon to protect them have generated interpretative plurality, in at least two senses.
First and foremost, these phenomena have not eliminated the role and importance of national courts – both ordinary judges and constitutional courts – which, as a rule, are (even if only in chronological terms) the first bodies called upon to protect rights, for which purpose they refer both to their constitutions and national laws, and to Union law and international conventions. Indeed, it is well known that national judges sit as EU judges when dealing with subjects within the EU’s sphere of competence; likewise, the case law of the European Court of Human Rights (ECtHR) states that, in judicial proceedings, affirmation of the rights enshrined in the European Convention of Human Rights (ECHR) is a matter for national courts first.
Second, the European courts’ interpretative activities overlap: they may very well find themselves deciding on issues relating to the same rights, albeit within their respective spheres of competence.
When considered in their abstract form, charters of rights inevitably tend towards resembling one another, for simple reasons: they meet the same human needs for freedom, justice and dignity that are crystallized in the corresponding specific freedoms; each charter exerts a driving force on the others; they even contain references to one another, in a relation of mutual complementarity (an example being Article 6 of the Lisbon Treaty).
In addition, in contemporary globalized societies, the problems arising from the need to share scarce resources and the dynamics of societal evolution are undergoing a homogenizing force that is making conflicts similar to one another, to the point that they are submitted in the same terms before national courts, first, and before the European courts, later.
Nevertheless, this does not – and cannot – mean that disputes are resolved in the same way wherever they are brought. Quite to the contrary, it is well known that the broad converging trend characterizing abstract formulations – and the litigation to be decided on their basis – is countered by the historical and axiological uniqueness of each legal system. This shapes law with its own specific content, which cannot always be reduced to a single common denominator.
Dialectical interaction between courts can ensure that the multilevel protection of rights yields a reasonable equilibrium – and not a sterile, hegemonic opposition – between legal systems and their judges. In other words, the parties involved cannot simply impose their own positions on the others, as in a unilateral conception of the situation; nor would it be acceptable for certain bodies to compel the others to surrender the positions they have adopted on the basis of their own constitutional orders. Instead, it is reasonable to believe that the contending values could be more successfully reconciled – and not only for the short term – by balancing the courts’ respective positions (given that it would be easier for such a solution to be accepted by the relevant legal systems and practitioners). In the longer term, this balance could lay the foundations for a common “home” for rights, where the various historical and national systems could coexist in a single shared space, in a concurrence of judicial remedies that enriches the protection afforded to fundamental rights and, by definition, rules out every possibility of excluding one of them (Constitutional Court, Judgment no. 20 of 2019).