Abstract
This chapter illustrates the two ways in which national constitutional courts can deal with a conflict between international or European law on the one hand and national constitutional law on the other hand. The dualist approach of not complying with international or European law comes at the risk of undermining respect for an external legal order and in the author’s view should thus be used in exceptional cases only. The chapter argues that the test of equivalent protection is more constructive but requires a close relationship between the legal orders involved. Therefore, this option is difficult to apply in cases which are about conflicts with international and not with European law. In Sentenza 238/2014, the Italian Constitutional Court chose a dualist approach. Although the legal path has not been exhausted yet (Germany could bring another case before the International Court of Justice), the author advocates negotiations with the aim of achieving a political solution which takes into account the interests of all parties involved.
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I. Introduction
This concise chapter elaborates on two issues: it firstly focuses on the techniques national constitutional courts have to tackle a conflict between international or European Union law on the one hand, and national constitutional law on the other hand. It then offers some thoughts on the way forward to solve the conflict between Italy and Germany after Sentenza 238/2014.
II. Techniques of Judicial Dialogue
As Alessandro Bufalini states in his chapter, there are basically two techniques of judicial dialogue between national constitutional courts and international or European courts—the Court of Justice of the European Union and the European Court of Human Rights—in case of a conflict between national, constitutional and international or European law.Footnote 1 The first technique is the more confrontational one, namely the decision not to apply or comply with international or European law in the national legal order due to constitutional reasons. The Italian Constitutional Court uses the counterlimits doctrine (dottrina dei controlimiti),Footnote 2 and the German Federal Constitutional Court uses the identity review (Identitätskontrolle)Footnote 3 to examine whether international or European law is compatible with fundamental principles and inalienable human rights of the national constitutional order. This approach led to the conflict at hand, and triggered numerous legal proceedings before Italian courts which make it extremely difficult to come to a satisfactory solution of the problems raised. Nevertheless, from a constitutional law perspective based on the dualist theory, this technique is sometimes necessary for national constitutional courts to protect the very essence or the ‘identity’ of the national constitutional order they are the guardians of.
The more constructive technique is the test of equivalent protection which is often applied in cases where the protection of human rights at different legal levels is at stake. In these cases, constitutional courts do not control the compliance with human rights guarantees themselves as long as exists an equivalent human rights protection including judicial review at the international or European law level.Footnote 4 In Germany, this technique is called Solange-Rechtsprechung (‘as long as’ jurisprudence).Footnote 5 Bufalini rightly points out that this more dialogical second technique usually requires a close relationship and similarity of the two legal orders concerned and also a sophisticated relationship between the courts involved to develop the pertinent means and methods of the necessary ‘judicial dialogue’.Footnote 6 This is the reason why this technique is often used in the context of European Union law and human rights protection guaranteed in the European Convention on Human Rights.Footnote 7 This also explains why it is not used very often in genuine international law cases such as the one at hand.
If constitutional courts make use of the more confrontational technique, mentioned above, thereby blocking off the applicability or enforcement of international or European law in the national legal order, they should do so in a very cautious and responsible way. This technique should only be used rarely in exceptional cases, and—if possible—the language used in such judgments should not be too rigid and confrontational in order to leave some room for the political actors to find a solution to the conflict afterwards. National courts should take into account that decisions to openly disobey international or European law are always apt to undermine respect for the external legal order and also for the rule of law in general.
III. Possible Ways to Solve the Conflict Between Germany and Italy
The case at hand is an illustrative example for the difficulties that arise from judgments that apply the counterlimits doctrine, thus preventing the enforcement of the Jurisdictional Immunities Judgment of the International Court of Justice (ICJ) in Italy.Footnote 8 When it comes to finding a solution to the conflict between Germany and Italy, there are, as Bernardo Giorgio Mattarella points out in his chapter, basically two paths to follow, namely the legal path and the political opportunity (and diplomatic) path.Footnote 9 The legal path has not yet been exhausted completely; several options are left, especially with a view to the question of the execution of the judgments now rendered by Italian courts against Germany.Footnote 10 If bad comes to worst, Germany could once again bring the case before the ICJ asking for compensation for reparation payments she was forced to make. In my view, to follow that path would not lead to a sensible solution of a conflict between two countries which are both members of the European Union and work together closely in many ways.
Therefore, both states should choose the preferable option to once again take up negotiations and find a political solution which is apt to close the wounds of the past and takes into account the position and the feelings of the victims. There are many different options concerning how such negotiations could be made, what the aims could be, who should initiate them and who should participate. It is not for me to give advice in this regard. These negotiations do not have to start from scratch; much has been done already. It is clear, however, that such negotiations and their success are dependent on the mutual political will and a certain sense of generosity on both sides. In my view this would be the most sensible way to finally solve the problem in the best interests of both states and the victims.
Notes
- 1.
See Alessandro Bufalini, chapter ‘Waiting for Negotiations’, in this volume.
- 2.
See eg Corte Costituzionale, Judgment of 27 December 1973, No 183/1973 (Frontini).
- 3.
See Bundesverfassungsgericht, Order of 15 December 2015, 2 BvR 2735/14, BVerfGE 140, 317.
- 4.
See, generally, Veronika Bílková, ‘The Standard of Equivalent Protection as a Standard of Review’, in Lukasz Gruszczynski/Wouter Werner (eds), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (Oxford: OUP 2014).
- 5.
See FCC, Order of 22 October 1986, 2 BvR 197/83, BVerfGE 73, 339 (Solange II).
- 6.
See Alessandro Bufalini, chapter ‘Waiting for Negotiations’, in this volume.
- 7.
For a thorough analysis of the principle of equivalent protection, see Elisa Ravasi, Human Rights Protection by the ECtHR and the ECJ—A Comparative Analysis in Light of the Equivalency Doctrine (Leiden/Boston: Brill Nijhoff 2017).
- 8.
ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99; ItCC, Judgment of 22 October 2014. No 238/2014.
- 9.
See Bernardo Giorgio Mattarella, chapter ‘Sentenza 238/2014’, in this volume.
- 10.
See Paolo Palchetti, chapter ‘Right of Access to (Italian) Courts über alles?’, in this volume. See also recently, Corte di Cassazione, Judgment of 25 June 2019, No 21995/2019.
References
Bílková, Veronika, ‘The Standard of Equivalent Protection as a Standard of Review’, in Lukasz Gruszczynski/Wouter Werner (eds), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (Oxford: OUP 2014)
Ravasi, Elisa, Human Rights Protection by the ECtHR and the ECJ—A Comparative Analysis in Light of the Equivalency Doctrine (Leiden/Boston: Brill Nijhoff 2017)
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König, D. (2021). The Consequences of Sentenza 238/2014: What to Do Now?. In: Volpe, V., Peters, A., Battini, S. (eds) Remedies against Immunity?. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 297. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-62304-6_11
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