Diana-Urania Galetta

General principles of EU Law as evidence of the development of a Common European Legal Thinking: the example of the proportionality principle (from the Italian perspective)

While it is surely questionable whether the reference to “any rule of law” contained in Art. 263.2 TFEU can be considered to be one of the bases for the development of the so‐called general principles of EU law, it is conversely certainly the case that the provisions of Art. 340.2 TFEU are considered an essential point of reference in this context. This provision, which remained in essence unchanged in its wording since the Treaty of Rome (Art. 215.2 EEC), states in fact that: “In the case of non‐contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.” This provision has been recently restated by Art. 41.3 EUCFR on the right to good administration.

Access to Administrative Documents and to Public Sector Information in Italy

Law No. 241 of 1990 on administrative procedure (Italian APA) established general rules on the right of access to administrative documents for the first time in the Italian legal system, which partly reproduced rules defined in sectorial legislations. From such very restrictive regime of access to administrative documents—lately accompanied by a rather demagogical obligation imposed on public administrations to disclose a set of information in the context of the so-called open data policies—Italy has recently moved forth to public access to data and documents held by public administrations.

The European Union in the Constitutional Framework of Member States: The Italian Case

The position of the Italian Constitutional Court on the requirement of protecting fundamental principles and rights of a national system related to the European Union (EU) has its origins in a ruling of 1965 in which, for the first time, it referred to the existence of a nucleus of Italian constitutional norms resistant to Community norms (controlimiti). At a later time a mutual understanding between the Courts arose in the name of the autonomy/separation of the two systems which were nevertheless ‘coordinated with one another’. After the adoption of the Treaty of Lisbon a ‘communitarization’ of the counter-limits’ has taken place. The question of the introduction of a specific provision into the Italian Constitution about the European Union arises, therefore, once again and with more force. If sovereignty in Europe is limited by European integration, the insertion of an ‘Europa-Klausel’, permitting a major opening of the Italian Constitution, would in fact be the only adequate instrument to curb its progressive erosion.

La Unión Europea en el marco constitucional de los Estados Miembros: el caso de Italia

El posicionamiento del Tribunal Constitucional acerca de la exigencia de proteger los principios y derechos fundamentales del ordenamiento nacional en relacion con la Union Europea se remonta a una sentencia del 1965 (n. 98 de 27 de diciembre de 1965), en la cual se disputa a las atribuciones jurisdiccionales del Tribunal de Justicia de la Comunidad Europea. Fue cuestionada, de hecho, la compatibilidad con la Constitucion de la ley que habia hecho ejecutivo en Italia el Tratado CECA, en la parte en la que esa tenia el efecto de garantizar al juez comunitario una jurisdiccion exclusiva sobre los recursos opuestos a las medidas de la alta autoridad comunitaria. Se asumia, especificamente, el contraste de tales normas con una serie de principios fundamentales del ordenamiento constitucional italiano, entre ellos la atribucion de la funcion jurisdiccional a magistrados ordinarios instituidos y regulados por las normas del ordenamiento judicial, la prohibicion de institucion de jueces extraordinarios y de jueces especiales, y la garantia a cada ciudadano de la completa tutela de derechos y e intereses legitimos contra los actos de la Administracion Publica. En ese punto, el Tribunal Constitucional habia admitido, sin embargo, que, aunque en ambito jurisdiccional pueden ser atribuidas a la Comunidad competencias previamente asignadas al Estado, siempre que lo haga, «sin perjuicio del derecho del singulo a la tutela jurisdiccional, [en cuanto] este derecho es http://dx.doi.org/10.5209/rev_FORO.2013.v16.n2.43941

The Procedural Autonomy of the Member States: Judges and Legislators. Conclusions

The close connection between the primacy of EU substantive law and procedural autonomy of the Member States – that some scholars have defined in terms of ‘lien consubstantiel’1 – has clearly become apparent from the analysis conducted so far. From this analysis has also clearly emerged the need to constantly seek a balance between these two elements, which are certainly inseparable2 and, at the same time, in constant tension with each other.

The Jurisprudence of the ECJ on the Procedural Autonomy of Member States: Analysis of the Fundamental Judgements

As already stated in the first Chapter, the chapter that follows consists of an analysis of the ECJ’s decisions, which have been issued as a result of references for a preliminary ruling under Art. 267, TFEU (ex Art. 234, TEC).1 These have been selected because of their specific relevance for the argumentation on the procedural autonomy of the Member States that I wish to outline here. Till now, there are a number of academic works that have considered the issue of the so-called procedural autonomy from the (national or comparative) perspective of national procedural legislations. The aim has been almost always to explain, as thoroughly as possible, all the decisions of the EU judges which have dealt with one or the other aspects of this topic.1 In so doing, however, the authors were almost obliged to choose a classic line of argumentative reasoning, that is, the grouping of the decisions of the ECJ on the basis of the topic of procedural relevance on which these decisions were more or less concentrated: the time limit for submitting an appeal, precautionary protection and so on.

Introductory Notes, Terminological Issues and Demarcation of the Scope of the Study

A large body of literature has focused on the question of the procedural autonomy of the Member States, especially from the first half of the 1990s onwards. That was in fact a season of important decisions by the European Court of Justice which – as a consequence of their impact, in practice very incisive – brought to the forefront the question of the possible limitations that this jurisprudence may have, or could have, on national procedural legal orders.1