LUISS Research Unit

The LUISS Unit is made up of Raffaele Bifulco (Professor of Constitutional Law), Giovanni Piccirilli (Researcher in Constitutional Law), Orlando Scarcello (Post-doctoral fellow), Simone Neri (PhD student) and Elina Anfuso (Postgraduate in Law).

As its principal task, the Unit will create the Observatory on the practices of inter-legality by Italian High Courts. In particular, the monitoring activity will consist of two main pillars.

The aim of the first pillar is to trace the evolution of the relationship between the Italian constitutional order and the EU legal order with regard to the protection of fundamental rights. In particular, the first pillar will focus on the prominent obiter dictum of the Italian Constitutional Court (hereinafter, the ICC) in its decision no. 269 of 2017 and its subsequent developments. According to this recent obiter dictum – which significantly modified the previous case law that had been consolidating since the 1980s – in cases of compatibility of a domestic provision with fundamental rights protected by both the Italian Constitution and the Charter of Fundamental Rights of the EU, it is up to ordinary judges to decide whether to make a preliminary reference to the ICC or the Court of Justice of the EU.

Consequently, in the framework of the first pillar, the Observatory will report on the following:

• Decisions where the preliminary questions of constitutionality of a national norm were raised by Italian ordinary courts to the ICC, entailing the priority of domestic constitutional rights vis-à-vis the EU fundamental rights;
• Decisions where the preliminary references by Italian ordinary courts were made to the Court of Justice of the EU or where domestic law was not applied to ensure the primacy of the EU legal order. Due to the time constraints, the decisions analyzed therein will be limited to those of the Court of Cassation.

The aim of this second pillar, in turn, is to test the level of inter-legality within the case law of the ICC and its attitude towards integrating national and supranational norms when adjudicating individual cases. In particular, we will monitor how the solution of individual cases was reached when both internal constitutional norms and external standards (in particular, CFREU, and ECHR) had been simultaneously invoked.