Judgment No. 181/2024 of the Italian Constitutional Court (“ItCC”) has rekindled the debate on dual preliminarity, addressing the dynamic between EU law’s system of decentralized adjudication and Italy’s centralized constitutional review of laws. The judgment appears to incentivize recourse to the centralized system of adjudication, to the detriment of EU law, by allowing national judges greater autonomy in deciding whether to disapply conflicting national laws directly or first refer them to the ItCC. Moreover, in its ruling, through the use of the flexible notion of “constitutional tone” the ItCC expanded the notion of dual preliminarity beyond the traditional case of fundamental rights review. While the advantages of the “181 model” are highlighted in the judgment, such approach risks limiting both the immediacy of judicial protection in the EU and the integration process, guaranteed and promoted by EU law’s decentralized system of adjudication. Our contribution suggests, however, that the notion of “constitutional tone” may actually be functional in harmonizing these systems of adjudication, promoting a proactive and fruitful dialogue between Courts.

1. Introduction - 2. Overture: The Proceedings in Front of the Consiglio di Stato and the Referral of the Case to the ItCC - 3. Dissonance: ItCCs Renewed Stance on Double Preliminarity in Judgment No. 181/2024 - 4. In Search for Harmony: Understanding the Compatibility of the “181 Approach” with EU Law - 4.1. Advantages and Disadvantages of Centralized Constitutional Adjudication - 4.2. Appropriateness as the “Tuning Key” - 5. Conclusion - NOTE

1. Introduction

With Judgment No. 181/2024, [1] the Italian Constitutional Court (“ItCC”) has rekindled the lively debate on dual preliminarity, which involves, at its core, the relationship between the decentralized system of adjudication immanent to EU law and the Italian centralized system of constitutional adjudication. In fact, the ItCC, in a situation of dual preliminarity, i.e. when a national provision conflicts with both directly effective EU law and the Italian Constitution, is confronted with this question: is it always necessary to disapply the national provision, pursuant to the Simmenthal legacy, [2] or is it possible to first refer a question of constitutional legitimacy to the ItCC? In other words, does the decentralized system of adjudication always prevail over the centralized system, or can they, rather, coexist? Indeed, both are harbingers of important values and interests. The former is essential to the EU legal order, as it is able to ensure widespread immediate disapplication of incompatible national laws, upholding the principle of primacy and promoting an ever-tighter integration between Member States. This is achieved especially through the use of Article 267 TFEU, which allows for there to be “a successful relationship between the ECJ and the national courts [which] is the key that unlocks the integration door”. [3] The centralized system of adjudication, instead, allows for the erga omnes annulment of unconstitutional national laws and has been defined by the ItCC as “the foundation of the constitutional architecture” [4] of the Italian legal order and thus represents a fundamental feature of Italy’s national identity [5] – a value protected, inter alia, by Article 4(2) of the Treaty on the European Union. In this short contribution, we shall comment upon Judgment No. 181/2024 and evaluate how the approach sanctioned therein affects the relationship between the two systems of adjudication. Mainly, we shall attempt to understand whether the supposed advantages of the “181 model” are realized in practice and then, whether such a model is actually compatible with EU law, in the measure in which it inevitably restricts the full functioning of the decentralized system of adjudication.

2. Overture: The Proceedings in Front of the Consiglio di Stato and the Referral of the Case to the ItCC

First, some background. The question that led to Judgment No. 181/2024 arose in a dispute in front of the Consiglio di Stato, who had to rule on the legitimacy of a public procedure for the recruitment of 691 inspectors by the Correctional Police Force, which differentiated the number of available positions on the basis of the applicants’ sex. Of 691 available positions, only 85 were available for women, while the remaining 606 were reserved for men. The Consiglio di Stato questioned the legitimacy of Article 44, paragraphs 7-11 Law No. 95/2017, the annexed Table 37 and Table A, annexed to Legislative Decree No. 443/1992 regarding their compatibility with (i) the principle of formal equality, enshrined in Article 3 of the Constitution and (ii) the principle of equal treatment between men and women, pursuant to primary and secondary EU law. [6] Therefore, the Court decided to invest the ItCC with the issue, framing the contrast as a violation of Article 117 of the Constitution, which “imposes the respect of the obligations sanctioned by the EU legal order”. [7] The Consiglio di Stato, in justifying why it chose to refer the question to the ItCC instead of immediately disapplying the national provision, given its clear violation of EU law provisions endowed with direct effect, focused on the advantages of erga omnes rulings by the ItCC’s, rather than merely inter partes disapplication. [8]

3. Dissonance: ItCCs Renewed Stance on Double Preliminarity in Judgment No. 181/2024

As should be clear, the ground-breaking principles laid down in Judgment No. 181/2024 do not relate to the substantive aspects of the ruling, i.e. whether the contested provisions of Italian law violated both Article 3 of the Constitution and EU law. In that respect the answer was affirmative, as the national rules were discriminatory and, for that reason, were declared unconstitutional. Conversely, the key part of the judgment is that in which the ItCC addressed the issue of the referral’s admissibility, dealing a final blow to the approach enshrined in the Granital ruling, [9] which had already been progressively weakened in recent years. [10] The reasoning followed by the ItCC can be divided into three main sections. First, the ItCC clarified that the conflict between the contested national provisions and directly effective EU rules did not impede the Court’s review of their constitutionality. [11] Rather, in cases of double preliminarity, it is wholly for national judges to decide whether to disapply national provisions and, should it be necessary, refer a question to the CJEU ex Article 267 TFEU or instead raise a question of constitutional legitimacy. [12] In the eyes of the Court the three instruments are equally able to ensure the primacy of EU law, especially if considering that the same ItCC has the ability to make preliminary references to the CJEU. [13] Second, after having identified the autonomy of national judges as the operative criterion underpinning the functioning of double preliminarity, the ItCC, in concreto, redefined the scope of the notion, so as to include any question that has a “constitutional tone” derived from its connection to interests or principles of constitutional relevance. [14] Up until this ruling, instead, the issue of double preliminarity only concerned cases in which a national provision conflicted with both the Italian Constitution and the Charter [15] and was thus confined to a fundamental rights review. Now, through the use of the notion of “constitutional tone”, which has been flexibly interpreted, the ItCC is able to expand the scope of questions that can undergo its review even beyond the field of fundamental rights, as is confirmed by its case-law following this judgment. [16] Finally, the ItCC justified its revirement by explaining the advantages that a declaration of constitutional inadmissibility has in respect to [...]

4. In Search for Harmony: Understanding the Compatibility of the “181 Approach” with EU Law

As is easily understood, the principles laid down in Judgment No. 181/2024 raise numerous procedural questions, which require to investigate the relationship between provisions deriving from different (albeit integrated) legal orders, both “hierarchically” and “axiologically”. [22] Such considerations fall beyond the scope of this short contribution, in which, instead, we shall limit ourselves to some general reflections on the balance between the two different systems of legality review, by considering the actual existence of advantages in the “181 model” in respect to immediate disapplication and its compatibility with EU law’s decentralized system.

4.1. Advantages and Disadvantages of Centralized Constitutional Adjudication

A cursory reading of Judgment No. 181/2024 suggests that the ItCC, while leaving national judges free to decide “the most appropriate remedy”, [23] strongly advocates in its own favor by highlighting the undeniable advantages that the referral of a question of constitutionality has in certain situations. [24] However, it is important to underscore that this shall occur only in certain situations, not always. Indeed, the EU’s decentralized system of adjudication has equally undeniable advantages, which must be normally given due deference. On the one hand, immediate disapplication guarantees the right to effective judicial protection to a higher degree than a subsequent (delayed/belated) declaration of unconstitutionality. [25] Moreover, the use of the preliminary reference procedure allows for the uniform interpretation of EU law across all of the Union, promoting and accelerating integration. [26] Also, while it is true that the erga omnes effect of the ItCC’s rulings has the advantage of wholly annulling an unconstitutional provision, the same result is also reached in the context of the decentralized system, insofar as disapplied provisions are, at the end of each year, repealed through the legge europea [27] by Parliament. Nevertheless, it is true that, again, in certain situations prioritizing recourse to the ItCC may be warranted. Indeed, the erga omnes effect of the ItCC’s rulings better guarantee legal certainty and the uniform application of the law, being less variable than disapplication and immune to the indifference of non-compliant public administrators, which are instead more likely to apply national provisions incompatible with EU law. [28] Said advantages are particularly tangible when it is necessary to assure the protection of fundamental rights held in both the Charter and the Constitution, [29] given the importance of the rights at stake and the consequential appropriateness of a centralized response to their violation. Moreover, such situations are also those in which the advantages of a decentralized system can be felt the least. Indeed, on the one hand, national judges could disapply national law on the basis of violations of the Charter in an excessively nonchalant manner, thus creating unjustified legal vacuums, as was highlighted by Barbera in his famous critique of the Charter’s spill-over effect. [30] On the other, moreover, the need for uniform [...]

4.2. Appropriateness as the “Tuning Key”

The aforementioned deficiencies of the centralized constitutional adjudication cannot, however, be brought to extreme consequences, so as to deem it always unacceptable for disapplication to be derogated by referrals to the ItCC. Indeed, despite the lack of generalized advantages coming from the “181 approach” and its apparent contrast with the duty to immediately disapply, [35] it must be nonetheless recognized that the CJEU does recognize the autonomy of judges, provided certain conditions are met, to derogate from such duty. [36] In Melki [37] the CJEU ruled on the compatibility of the French question prioritaire de constitutionnalité with EU law, which obligated judges to refer a question to the Conseil Constiutionelle, when a provision was suspected of breaching both EU law and the French Constitution. There, the Court recognized the question prioritaire de constitutionnalité as compatible with EU law, provided that it did not preclude national judges from disapplying conflicting national laws or from referring to the CJEU for a preliminary ruling. [38] In doing so, it stressed that “in order to ensure the primacy of EU law, the functioning of that system of cooperation requires the national court to be free to refer to the CJEU for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality”. [39] In our opinion, it is in this passage, which emphasizes the concept of appropriateness, where we can find a criterion for determining when preference for Constitutional Courts’ interventions may be compatible with EU law. [40] However, the current formulation of the “181 model”, which considers as relevant for its purposes any form of contrast between national and EU law, provided it has a “constitutional tone”, can hardly be deemed appropriate. This is especially true considering that the principle of primacy does not appear equally guaranteed by the ItCC’s ability to make autonomous preliminary references to the CJEU. [41] It is indeed worthwhile to consider whether preliminary references made by the ItCC are fungible to those one made by national judges and actually constitute an equal alternative to the latter for the purpose of the guaranteeing of the principle of primacy. [42] In fact, by [...]

5. Conclusion

All in all, therefore, the “181 model” does not openly contrast with the Simmenthal case-law, which, read in light of the Melki ruling, allows for some degree of derogation from the absoluteness of the decentralized system of adjudication. However, in its current formulation, the ItCC’s new stance on double preliminarity may be excessively broad, as it is not always able to guarantee primacy to the same degree as the disapplication/preliminary reference duo. In our opinion, however, the refinement of the “constitutional tone” criterion could adequately adjust the ItCC’s current approach, thus reaching a truly harmonious coexistence between the two systems.

NOTE