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Rule of Law and Mutual Trust: a Short Note on Constitutional Courts as

SILVANA SCIARRA, Giudice della Corte Costituzionale, Roma

Nell'intervento svolto in un convegno promosso dalla Corte Costituzionale della repubblica lettone, si pone l'accento su alcuni concetti, utili per ricostruire il dibattito corrente sul ruolo delle corti costituzionali nell'Unione Europea e in un più vasto contesto internazionale. Si suggerisce che, proprio in ragione dei molteplici parametri normativi da considerare, le corti agiscono come ‘istituzioni del pluralismo', sia per comprendere i canoni interpretativi propri delle fonti non statali, sia per l'applicazione dei principi costituzionali. In questo quadro le corti costituzionali rivelano un proprio ‘stile', frutto di diverse esperienze storiche e sociali. Lo ‘stile' adottato dalla Corte costituzionale italiana nel caso ‘Taricco' è stato contraddistinto al tempo stesso da fermezza e deferenza. Tuttavia, alla luce di recenti pronunce della CGUE, incombe sulle corti costi­tuzionali il rischio di divenire ‘protagoniste', se esse accentuano una propensione autoreferenziale, volta a accentrare giudizi sulla conformità a parametri europei e internazionali e a principi costituzionali. Lo stato di diritto è stato, a tale proposito, recentemente evocato dalla CGUE che, nell'interpretare congiuntamente gli Articoli 2 e 19 TUE, ne ha confermato il valore fondante.

In this paper, delivered at a conference organized by the Constitutional Court of the Latvian Republic, emphasis is put on a few concepts, useful to enter current discussions on the role of constitutional courts in the European Union and in a wider international context. It is maintained that, because of the many legal parameters to be taken into account, courts act as ‘institutions of pluralism', both to understand interpretative criteria connected to non-state sources and to apply constitutional principles. In this framework constitutional courts reveal their own ‘style', the outcome of different historic and social experiences. The ‘style' adopted by the Italian Constitutional Court in ‘Taricco' was, at the same time, firm and deferential. However, in the light of recent rulings delivered by the CJEU, the risk for constitutional courts to become ‘protagonists' is portrayed, should they accentuate a self-referential propensity to centralize adjudication on conformity to European and international standards, as well as on constitutional principles. The rule of law has been, at this regard, recently recalled by the CJEU, who in interpreting jointly Art. 2 and 19 TEU, has confirmed their founding value.


Rule of law – Constitutional pluralism – Judicial independence – Deference – Taricco – European courts network

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I. Expanding constitutional pluralism - II. National constitutional protagonists - III. Styles in constitutional discourses - NOTES

I. Expanding constitutional pluralism

I want to develop the notion of constitutional pluralism, which has been recalled, among others, by Professor Encarnación Roca Trías, Vice President of the Spanish Tribunal Constitutional. I will also try to elaborate on the implications of President Ziemele's final remark in her opening speech, whereby all legal orders should be interpreted as universal legal orders. This is so because of the multiplicity of sources – national, supranational, international – all relevant and significant in constitutional adjudication. Legal sources appear more and more interconnected, despite their different origins and their different functions. The core issue of current constitutional preoccupations is pluralism of sources, all insisting on the enforcement of fundamental rights. Such diverse levels of protection imply the combination of diverse standards and multiple interpretations of the same. National constitutional courts necessarily become, at the same time, interpreters of supranational and international standards and for this reason embody the role of ‘institutions of pluralism'. This suggestion implies to expand even further a – by now deeply grounded – notion of constitutional pluralism, which has been so central in the construction of modern constitutional scholarship, as well as in the everyday practice of courts. In the European tradition constitutional pluralism is nourished by a rich variety of sources at national level. The acknowledgment of such a variety marked a step forward in legal developments and represented the end of states' monopoly on the production of norms as well as the increasing incidence of social realities, built on diversified social expectations and on common, shared interests. Scholarly work has magnified this multifaceted pluralism and has, in some cases, accentuated the role of spontaneous orders, where law is produced at the periphery of state centered legal systems. In countries like Italy and Spain constitutional pluralism was also the outcome of conflicting ideologies and conveyed historical and cultural implications. It was, as such, at the core of states reactions to undemocratic and dictatorial regimes. This leads me to describe constitutional pluralism with an emphasis on ‘styles' developed over the years by constitutional courts. Courts have been hesitant and resilient; at times they have been defensive or aggressive. Certainly, they have echoed their own [continua ..]

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II. National constitutional protagonists

It can be maintained that, in all such cases, strenuous defenses of what is conceived as the underlying rationale of national constitutional orders may disentangle new fears, as if a national integrity of each order could be shaken, if not disrupted. "Fear" – certainly not a technical legal term – is a metaphor for exacerbated self-inclusiveness and perhaps even intolerance towards open exchanges with other institutional counter-parts. "Fear" is opposed to "trust", which should, in my view, constitute the leading theory supporting constitutional pluralism. "Trust" implies overcoming barriers and widening the horizon of international standards to be interpreted, to be enforced and, if necessary, to be adapted. A too arduous defense of national constitutional legal orders may signal the danger of setting apart interchanges with other courts, thus generating what I suggest to call ‘national constitutional protagonists'. This may happen whenever constitutional courts attempt to ascertain their own undisputable centrality within the ‘universal legal order', to mention once more President Ziemele's powerful expression. Courts overemphasizing national constitutional pride and diminishing trust in open arguments, if necessary in clarifications about the peculiarities of their own legal systems, become ‘constitutional protagonists' and interrupt the necessary discursiveness of constitutional pluralism. At the other end of the scale we find cases of preoccupied claims for democracy and the rule of law, which intensify the centrality of constitutional courts as guards of common EU values. The previously mentioned Polish preliminary reference stands as a remarkable case of judicial activism, which runs in parallel to actions already taken by the Commission in announcing sanctions under Art. 7 TEU. The ‘style' here is not to act as protagonist; it is rather an articulated initiative within a sound institutional framework. In EU law, recourse to preliminary ruling procedures is the paramount example of how constitutional courts act as powerful interlocutors of the Court of Justice. Their initiatives imply compliance with EU law and, at the same time, deliver coherence with the European legal system as a whole. In doing so, constitutional courts do not ignore national constitutional values, neither they neglect them. They pursue a broad general interest and share the ultimate goal of further integration within the EU legal [continua ..]

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III. Styles in constitutional discourses

In the way of a short conclusion, I want to underline the main points made in my intervention, which have been inspired by the intense discussion developed in this conference. I have suggested that ‘styles' adopted by constitutional courts, when they engage in conversations with the Court of Justice of the EU and with the European Court of Human Rights, are the ultimate outcome of national heritages, enriched by a never-ending acquisition of new communicative tools. [20] Constitutional discourses taking into account supranational, as well as international standards, empower even further constitutional adjudication and constitutional courts, so much so that they act as ‘institutions of pluralism'. This optimal function covered by constitutional courts should be valued and framed in a comparative perspective, with a view to understanding why and in which context some of them act as ‘constitutional protagonists'. The latter – I have argued – are the courts overemphasizing the centrality of national legal orders, cultivating ‘fears', rather than ‘trust'.

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